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EHRLR 1-08:v 31/1/08 13:05 Page 1

European Human Rights Law Review


European
Human Rights
Law Review

Editors: Jonathan Cooper and Aileen McColgan Issue 1 2008

OPINION

Issue 1 2008
On Reforming the Operation of the European Court of Human Rights
-Michael OBoyle

ARTICLES
Constitutionalising Equality: New Horizons
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EHRLR 1-08:v 31/1/08 13:05 Page 2

EDITORIAL BOARD Professor Conor Gearty


Editors Professor of Human Rights Law, London
Jonathan Cooper OBE School of Economics, Rausing Director of the
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Aileen McColgan
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EUROPEAN
HUMAN
RIGHTS
Law Review
Issue 1 2008

pages 1162

EHRLR aims to promote better understanding of European human rights law, and to provide
a forum for serious debate on the European Convention on Human Rights. Tailored to the
needs of the practitioner and academic lawyers, it carries articles on all aspects of human
rights law as well as providing authoritative commentaries on current developments in this
field.

TABLE OF CONTENTS
OPINION
On Reforming the Operation of the European Court of Human Rights
Michael OBoyle ........................................................................................ 1
BULLETIN .............................................................................................. 12
BULLETIN: COUNTER-TERRORISM AND HUMAN RIGHTS ......................... 15
ARTICLES
Constitutionalising Equality: New Horizons
Karon Monaghan ....................................................................................... 20
The Right to Respect for Private Life in the European Convention on Human Rights: A
Re-examination
N.A. Moreham .......................................................................................... 44
De minimis non curat the European Court of Human Rights: The Introduction of a New
Admissibility Criterion (Article 12 of Protocol No.14)
Xavier-Baptiste Ruedin ................................................................................ 80
Protecting the Victims of Trafficking: Problems and Prospects
Suzanne Egan ........................................................................................... 106
CASE ANALYSIS
Liberty, Fairness and the UK Control Order Cases: Two Steps Forward, Two Steps Back
Adam Sandell ............................................................................................ 120
CASES AND COMMENT
J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v United Kingdom (Application
No.44302/02) ............................................................................................ 132
Tremblay v France (Application No.37194/02) .................................................... 135
Stavropoulos v Greece (Application No.35522/04) ................................................ 138
Verein Gegen Tierfabriken Schweiz (VGT) v Switzerland (Application No.32772/02) ..... 140
Hasan and Eylem Zengin v Turkey (Application No.1448/04) ................................. 144
Saoud v France (Application No.9375/02) .......................................................... 147
Lindon, Otchakovsky-Laurens and July v France (Application Nos 21279/02 and
36448/02) ................................................................................................ 150
Colibaba v Moldova (Application No.29089/06) ................................................... 154
Van Vondel v Netherlands (Application No.38258/03) .......................................... 157
BOOK REVIEW ....................................................................................... 161

This Review may be cited as: [2008] E.H.R.L.R.


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Opinion

On Reforming the Operation of the


European Court of Human Rights

Michael OBoyle*
Deputy Registrar of the European Court of Human Rights

Appointments; European Court of Human Rights; Member States; Public opinion

This opinion piece, which was first delivered as a public lecture at Queens University,
Belfast on October 18, 2007, examines the operation of the European Court of Human Rights
and proposed reforms. The author considers the positive reputation of the Court and the
crisis currently threatening to undermine it, before posing the question of what steps must
be taken today to face the growing number of cases without forfeiting the public confidence
which the Court has enjoyed to date. The question is explored by looking at four areas of
importance: national measures, pilot judgments, new protocols and the election of judges.

I begin by stating a paradox. Why is the European Court of Human Rights (the Court)
still perceived as an effective institution for the protection of human rights when it is
overwhelmed with cases and takes so long to produce its judgments and decisions in
deserving cases? Why does it still enjoy a reputation as the worlds most developed and
successful international human rights court?
There seems to be unanimous agreement in Europe today that the European
Convention on Human Rights (ECHR) is one of the major developments in European
legal history and the crowning achievement of the Council of Europe. The emergence of
the authority of the European Court of Human Rights has been described as one of the
most remarkable phenomena in the history of international law, perhaps in the history
of all law.1 Its predominance in the area of human rights standards is also recognised
by the European Union and reflected in the plans for union accession to the treaty.
Let me dwell for a moment on the reasons for this and then explain why its
achievements are imperilled by an accumulation of problems and difficulties linked to
the growth of its caseload and the failure of Russia to ratify Protocol No.14.

*
All views are personal and do not engage the European Court of Human Rights in any way.
1
See, e.g. Richard S. Kay, The European Convention on Human Rights and the Control of
Private Law [2005] E.H.R.L.R 479.
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
2 On Reforming the Operation of the European Court of Human Rights

The immediate reason for the European Courts reputation lies in the impact of its
case law in many different areas of law and the benign effect that this has had on the
legal and political systems of the Conventions 47 contracting parties. One need only
think of the extent to which the Human Rights Act has revolutionised the adjudication
of civil liberties issues in the United Kingdom, or the cases concerning Northern Ireland
which have had a direct impact in this jurisdiction. The point is best illustrated by the
richness and diversity of the cases examined by the Court from all over Europe, for
example, in the areas of freedom of expression, fair trial and its examination of cases
concerning grievous violations of the Convention such as torture, unlawful killings and
disappearances. The Courts case law makes a continuing contribution to the evolving
public law of Europe as the norms it contains are received into the national law and
practice of 47 states.
A second reason lies in what has been termed by Professor Froweinthe former
German Vice-President of the European Commission of Human Rightsas the
transformation of constitutional principles through the Convention, a transformation
which is in many respects a radical one when compared to the constitutional traditions
of many states and which was not at all foreseen by the Member States in 1950 as a
consequence of creating judicial organs of enforcement.2
He refers to the judicial control of legislation: this was not widespread when the
ECHR came into force but is one of the consequences, not foreseen at the time, when
the Member States set up organs to control the observance of the Convention.
Other examples of this transformation are: (1) the judicial review of administrative
decisions; (2) the guarantee of an open democratic process characterised by a highly
protected freedom of political speech and, in particular, of criticism of the government
by members of the opposition coupled with free elections; (3) the requirement of
proportionate legislation as a basis for restrictions of freedomthe principle of
proportionality; and (4) the full recognition of the dignity of the human person as
a constitutional imperativethe prohibition of torture and inhuman or degrading
treatment. Today we take many of these developments for granted and consider
that they are indispensable requirements of the rule of law, yet the fact is that their
development in the legal systems of Member States owes much to the jurisprudence of
the European Commission and Court of Human Rights.
A third factor is the role played by the ECHR in Eastern Europe. One has only to
read the constitutions of the new Member States to discover to what extent their bills of
rights are influenced by Convention law. The Wise Persons Groupset up to consider
reform of the ECHRhas also noted that the accession to the Convention of the central
and eastern European democracies has contributed to stability in the whole of Europe
through the consolidation of democratic standards.3
Lastly, the Courts influence goes far beyond the boundaries of Europe. Its case law
will be studied by the United Nations and other regional international bodies such as the

2
See Jochen A. Frowein, The transformation of constitutional law through the European
Convention on Human Rights in Dialogue between Judges (European Court of Human Rights,
2007), pp.7190.
3
Report of the Group of Wise Persons to the Committee of Ministers (Council of Europe, November
2006).
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Opinion Michael OBoyle 3

Inter-American Commission and Court of Human Rights. Constitutional and Supreme


Courts throughout the world, but especially those responsible for the interpretation
of constitutions based on the Convention, will look to Strasbourg jurisprudence for
guidance in the adjudication of human rights issues. The superior courts of Australia,
Canada, New Zealand, Namibia, Hong Kong and South Africato mention but a
fewhave all paid heed to judgments of the Court when interpreting their national
bills of rights.
In a speech given to the Court by Ralf Dahrendorf, he made the following point
concerning the relationship between democracy and the rule of law:

There can be a semblance of democracy without the rule of law, and there can be
a shell of the rule of law without democracy. Both are more desirable than their
absence altogether. However, the constitution of liberty, or what I prefer to call
the liberal order, requires both. It is only when democracy is firmly based on the
rule of law that it commands trust and is protected against passing enthusiasms
and disappointments. It is only when the rule of law is enveloped in democratic
institutions and processes that it becomes a more than formal guarantee of the
liberty of citizens.4

I am fond of this quotation because it encapsulates in a nutshell the subtle rule of law
vocation of the European system of human rights protection. Simply put, the work of
the Court is about the development of a European corpus of standards in the area of
rights and freedoms whose specificity strengthens the enveloping combination of the
rule of law and democracy.
However there is another side of the coin. There is today what has been termed
a looming crisis facing the Court which threatens to undermine these achievements.
As of the end of September 2007 the Court has currently 103,600 cases pendingof
which 77,300 are pending before a decision body. This figure is up by 15 per cent
from 2006. These figures are alarming because of the persistent trend of growth each
yearsomewhere between 12 and 15 per cent. Four countries between themRussia,
Romania, Turkey and the Ukrainegenerate half of these cases. The Court, of course,
has not remained inactive faced with this continuing growth. For example, in 2006 the
number of judgments delivered increased by around 40 per cent, reflecting the policy
of concentrating more resources on meritorious cases. It is likely that at the end of 2007
there will be a corresponding increase in judgments.
The success of the ECHR is undoubtedly linked to the immeasurable value over the
years of the right of individual petition which has enabled the airing of the grievances
out of which European human rights law has been fashioned. We should not forget
that it is the right of the individual petitionwhich we in Europe now take for granted
because we have become acclimatised to itthat is hailed as the stellar and advanced
feature of the ECHR outside Europe. Yet the right of individual petition has been
extended to a population of more than 800 million people. And it is the exercise of this

4
Ralf Dahrendorf, Democracy and the Rule of Law, speech delivered in the European Court
of Human Rights on June 8, 2000 on the occasion of the presentation of the Studies in honour of
Rolv Ryssdal.
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
4 On Reforming the Operation of the European Court of Human Rights

right that has given rise to the Courts continuing predicament. It is true that the Court
has come in for sharp criticism from many lawyers and non-governmental organisations
(NGOs) because of its policy of rejecting large numbers of cases as inadmissible without
giving detailed reasons. Its policy will be pursued even further with the introduction
of the single-judge system, if and when, Protocol No.14 is eventually ratified. The
basic reality is that an international court is not in a position to handle such a high
number of pending cases without establishing priorities and deciding how to allocate
its resources. The Court has chosenwisely I believeto concentrate on cases (also
a large number) which raise prima facie issues of importance. This is an imperative
if the right of individual petition is to survive in any meaningful sense but I am not
suggesting that the right should be trammelled or curtailed in any way. If growing
disenchantment from an informed civil society is the price to pay, this is an unfortunate
development. However, the ultimate asphyxiation of the system and the steady painful
loss of credibility as an institution that would accompany a failure to establish priorities
is an alternative price that we should not be willing to contemplate.
As the case load increases, the Court is constantly seeking to increase its efficiency
by rationalising and modernising how it functions. The Registry of the Court has
implemented most of the steps recommended by Lord Woolf in his report drawn up at
the end of a management study of the Court in 2005.5 A specialised unit has also been
set up within the Registry in order to deal with the backlog which consists of the oldest
applications. In addition, the Court has worked hard to prepare itself for the entry into
force of Protocol No.14 which was designed to give it important tools in order to cope
with its increasing case load but which has been ratified by 46 out of the 47 Member
States but not by Russia. Failure to ratify this important protocol by June 30, 2007 has
necessitated the holding of elections to replace more than 20 judges, some of whom will
be re-elected. There is thus the likelihood that the Court will be required to integrate
into its fold as many as 10 or 12 new judges with little background in the operation of
the Court and its case law. Those of you with experience in the operation of judicial
systems can imagine the dislocation that this will cause in the Courts business.
Non-ratification has also precipitated reflection in the Council of Europe on the
diplomatic and political question as to whether anything can be done in the interim
to rescue Protocol No.14? For example, if it became clear that Russia was not going to
ratify this treaty which is considered by the other 46 parties to be an essential reform,
is there anything that can be done? Does it follow from the collective nature of the
Convention system that the 46 ratifying states must necessarily stand idly by and allow
the Protocol to become a dead letter? Is there a possibility, for example, in such a
serious situation, that the Committee of Ministers of the Council of Europe could, as
one of the guarantors of the effectiveness of the system, authorise the Court to amend
its procedures to apply the single judge or three judge system to cases concerning those
states that have ratified the Protocol but not to Russia? Would such a resolution by the
Committee of Ministers nevertheless require Russias consent? Is there a danger that by
taking such steps any incentive for Russia to ratify would be removed? Is provisional
application of the Protocol in advance of ratification pursuant to Art.25 of the Vienna
Convention of the Law on Treaties a possible solution? These are questions which will

5
Review of the Working Methods of the European Court of Human Rights (December 2005).
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Opinion Michael OBoyle 5

be examined in the months to come by the Committee of Ministers and it is enough to


state the issues to perceive that they admit of no easy resolution. One can only express
the fervent hope that after the Duma elections in December, the matter can be resolved
by last minute ratification.
Faced with the constant growth of cases coming to the Court, a group of Wise Persons
was appointed by the Council of Europe in 2005 to make proposals concerning the long-
term effectiveness of the Convention system. This Group reported to the Committee of
Ministers in November 2006 and made a variety of key reform proposals.
The essence of the reform philosophy of the Group was to envisage the setting up
of a smaller Court of Human Rights that would be in a position to devote itself to its
constitutional and standard-setting role and to do this by devolving time-consuming
tasks to other bodiesfor example the handling of manifestly ill-founded as well as
manifestly well-founded cases by a judicial filtering body and the determination of just
satisfaction by the national courts. The Wise Persons proposals are essential reading for
students of reform of the Convention and have recently been the subject of a specialised
conference in San Marino whose proceedings have been published by the Council of
Europe.6
It is not my intention to dwell on the detailed proposals the group has made. However
there are two realities about the Wise Persons report that should be highlighted. The
first is that the report concerns essentially the long-term future of the Courthow it will
develop over the next two decades or so. Its proposals will have to be studied in depth
over the next three years by governmental experts with a view to the elaboration of a
new protocol. It is clear from experience of past protocols that this reform package will
take a considerable time before coming into operation and will doubtless involve the
striking of compromises to reach agreement amongst 47 statesinevitably mirroring
the painstaking process of agreement between the Wise Persons themselves.
The second point is that the tools contained in Protocol No.14in particular the
role of the single judges in dismissing inadmissible cases, the three-judge Committees
being empowered to adopt judgments in repetitive cases and the new admissibility
criterionwere meant to enable the Court to surviveto tread water so to
speakpending the outcome of the longer term reform process. The Reforms envisaged
by the Wise Persons Group are predicated on the assumption that Protocol No.14 will
actually be in operation so that government experts and others will be in a position
to make a proper assessment of the effects of the operation of the Protocol and to
formulate their proposals accordingly. In other words, the failure of Protocol No.14 to
come into force in 2007 and the continuing uncertainty surrounding its future have
created serious operational difficulties for the Court and can only delay even further
this already lengthy reform process.
As I have said, the Wise Persons proposals were designed for the very long term yet
the Court cannot afford to wait that long. What is of the essence today concerns the
steps that must be taken in the short term to enable the Court to face up to the growing

6
Future developments of the European Court of Human Rights in the light of the Wise Persons Report,
Proceedings of the Colloquy organised by the San Marino chairmanship of the Committee of Ministers of
the Council of Europe (Council of Europe, April 2007).
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
6 On Reforming the Operation of the European Court of Human Rights

onslaught of cases and to prevent it from forfeiting the public confidence that it has
enjoyed up till now.
In addressing this question I propose to look briefly at four areas which are central to
the success of the Courts mission and where important improvements could be brought
about. These are: the national measures that can be taken by the states; the use by the
Court of pilot judgments; the need for a Statute of the Court to avoid having recourse
to amending protocols every time amendments on essentially procedural matters are
called for; and, lastly, the way in which judges are elected. The fact is that much can
be done in the short term, in these areas as well as others, by both the Court and the
contracting parties independently of treaty-making and that these opportunities should
be exploited to the maximum.

National measures
In the area of national measures there is much that the Member States can do today.
We should not lose sight of the various recommendations adopted by the Committee of
Ministers which accompanied the opening for signature of Protocol No.14 and which
assume their full importance during this period of uncertainty. Since Protocol No.14
has not entered into force as expected, the free-standing accompanying package of
resolutions and recommendations that surround it should become the focus of renewed
attention as states bemoan their impotence in the face of Russias non-ratification.
In one recommendation Member States are asked to ensure that there are appropriate
and effective mechanisms for systematically verifying the compatibility of draft laws
with the Conventionas well as existing laws and administrative practicesin the light
of the case law of the Court.7 In another recommendation Member States are summoned
to ensure that there are proper domestic remedies in place for anyone with an arguable
complaint of a violation of the Convention and that these remedies are effective.8 They
are also encouraged to review, following Court judgments which point to structural or
general deficiencies in national law or practice, the effectiveness of existing domestic
remedies and, where necessary, to set them up in order to avoid repetitive cases being
brought before the Court.9
These are all sensible and elementary steps that have already been taken by many
states but not by all and which would greatly reduce the flow of cases to Strasbourg if
they were properly implemented.
I should add that there is no reason why states should wait until the Convention
is amended as proposed by the Wise Persons before introducing national remedies
in respect of complaints concerning the length of civil, criminal or administrative
proceedings. In this context it should be recalled that almost 60 per cent of judgments
before the Court fall into this category and the existence of an effective national remedy
would greatly relieve the Court of examining such repetitive complaints, as illustrated
by the remedies which have already been introduced by Poland, the Czech Republic

7
Recommendation 2004/5 on the verification of the compatibility of draft laws, existing laws
and administrative practice with the standards laid down in the ECHR.
8
Recommendation 2004/6 on the improvement of domestic remedies.
9
Resolution 2004/3 on judgments revealing an underlying systemic problem.
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Opinion Michael OBoyle 7

and Romania. The time has clearly come to repatriate many of these issues to the forum
best suited to resolve them, namely the national court.

Pilot judgments
This brings me to the pilot judgment which is a tool created by the Court to deal with
repetitive complaints that highlight the existence of structural or systemic difficulties
in the state concerned. Such repetitive complaints clog the Strasbourg docket and
divert resources from the examination of other more serious complaints. The Court
in the operative part of a pilot judgment indicates that the states must inter alia take
general measures to deal with the structural or systemic problem identified. Pending
the enforcement of the judgment, the examination of cases raising the same issue is
suspended. The classic examples of this type of judgment are Broniowski v Poland10 and
Hutton-Czapska v Poland.11
Pilot judgments were born out of a strong belief that it is not the function of an
international court to act as a compensation commission examining large numbers
of complaints raising exactly the same issue. There are those who argue that there
is no proper legal basis in the Convention for such a broad injunction to the state
to take general measures. Nevertheless the pilot judgment development has been
wholeheartedly endorsed in the Woolf report and by the Wise Persons Group who
have encouraged the Court to develop its practice. Indeed, as I have mentioned, the
Committee of Ministers has itself in a resolution invited the Court to identify in its
judgments what it considers to be an underlying systemic problem, in particular where
it is likely to give rise to numerous applications, so as to assist states in finding the
appropriate solution.
There is no doubt that pilot judgments provide an effective way to the Court of
dealing with the large number of repetitive cases that clog its docket. The Court has
recently set up a working group with a view to develop its practice in this area since
to date there have been relatively few such judgments. The Committee of Ministers has
amended its rules of procedure to provide that the enforcement of such judgments be
given priority. The Commissioner of Human Rights of the Council of Europe has offered
to assist the Court to identify suitable candidates for a pilot judgment by availing of his
network of contacts with national human rights structures, and there is a suggestionto
be explored in the futurethat the good offices of the Commissioner could play a useful
role in the difficult enforcement stage of such judgments.
The most important problem to be resolved in the area of pilot judgments is arguably
the problem of enforcement. It is this area that needs the most urgent attention. Pilot
judgments require the state to introduce legislation that eliminates a particular structural
or systemic problem and provides for the possibility of compensation for the victims.
It can be seen immediately that the enforcement of this type of judgment raises a more
complex problem than the enforcement of an ordinary judgment of the court. This will
require the Committee of Ministers to devise a more proactive system of enforcement
than at present, engaging the state in dialogue as to the measures that need to be taken

10
(2005) 40 E.H.R.R 21.
11
(2006) 42 E.H.R.R.15.
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
8 On Reforming the Operation of the European Court of Human Rights

and, where necessary, providing outside expert assistance. Time limits will also have
to be set in this process since numerous cases before the Court will have been frozen
pending the outcome of the enforcement process. It seems clear that the future of the
pilot judgment is closely connected to the success with which these broad judgments
can be enforced by the Committee of Ministers. A series of judgments which remain
unenforced for political or socio-economic reasons, perhaps due to the extent to which
the systemic problem is deeply rooted in the national legal culture, would prove a major
setback to the use of this very promising type of judgment.

A new Court Statute


This brings me to my third point. The perennial problem with reform of the Convention
is that it has always suffered from a time-lag. This is mainly due to the complexity
involved in the drafting of new protocols. It must be ratified by all the contracting parties
when procedural or structural changes are involved. Protocol No.11, for example, took
more than three years to be ratified by all contracting parties and I have already
touched upon the problems associated with the entry into force of Protocol No.14.
The problem of time-lag for a beleaguered international court is that by the time the
much-needed reform enters into force, the parameters and dimensions of the problem
will have changed. Thus when the new Court entered into force in 1998 the signs were
omnipresent that it had already been overtaken by events as a result of the dramatic
increase in the number of parties to the Convention following developments in Eastern
Europe. Further reform thus became a necessity.
It is also clear that if Protocol No.14 were to enter into force tomorrow, it would
only provide a partial and temporary answer to the growing burden of cases which
have continued to grow impressively each year. The Wise Persons Group, inspired by
the practice in the European Communities, proposes that this problem be addressed
by making the procedure for reforming the Convention much more flexible. Their
proposal is to create a Statute of the Court comprising provisions relating to the Courts
procedures. Under this proposal, which would not apply to the substantive rights set out
in the Convention, it would be open to the Committee of Ministers to carry out reform
by way of unanimously adopted resolutions without an amendment to the Convention
by 47 Stateswith all the difficulties and uncertainties that this entailsbeing necessary
on each occasion. An important and necessary safeguard is that any amendment would
have to be subject to the Courts approval.
There is no doubt that such a development could enable important procedural
amendments, for example the procedures involved in the working of the Court
formations, to be introduced within a speedier timeframe than at present. However it
should be stressed that there is no reason why work cannot already commence on the
introduction of such a statute. If this system had been in existence today it would be
open to the Committee of Ministers to authorise the introduction of the single judge
system and the three judge committees envisaged by Protocol No.14although the
decision in the Committee would still require Russian agreement but perhaps a more
easily acquired agreement since the national procedures governing the ratification of
international treaties would have been deactivated.
There is ample precedent for such a statute. Both the International Court of Justice
and the Court of the European Communities have one. There is much to be gained from
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Opinion Michael OBoyle 9

pursuing this practical reform on a priority basis immediately as opposed to awaiting


the adoption of the Wise Persons proposals in a single package at some very distant
date in the future.

Reinforcing the independence of the judges


My next point relates, perhaps surprisingly, to the process of the election of judges to
the Court. Since the independence, impartiality and quality of the judges is central to
the Courts credibility as an international judicial institution, as well as its capacity to
face up to present day challenges, the process of the election of judges deserves more
serious attention.
Alexander Hamiltonone of the founding fathers of the United States and a wise
constitutional lawyerfamously pointed out in one of the Federalist Papers that the
executive holds the sword and the legislature commands the purse.12 He added:

The judiciary on the contrary has no influence over either the sword or the purse,
no direction either of the strength or of the wealth of the society, and can take no
active resolution whatever. It may truly be said to have neither Force nor Will but
merely judgment.

It is what judges do possess, namely the power of judgment, that lies at the root of the
achievements of international and national courts. However, as Alexander Hamilton
also recognised, the only conceivable source of the strength of judgment lies in the
independence of judges.
There is a series of issues that go to the independence of the Strasbourg judges
which must be addressed by the states as a matter of urgency. The first relates to the
absence of proper social cover and the absence of pensions for judges. The principle of
independence requires that judges should not be dependent on their own governments
for pensions. The Strasbourg Court is the only international court that does not have a
pension plan for judges. The prospect of serving judges who have not been re-elected in
the present round of elections returning to their countries with no job and no pension
cover for their years of service in Strasbourg graphically illustrates the problem.
Judges of the Court are elected by the Parliamentary Assembly of the Council of
Europe (PACE) on the basis of lists submitted by the states and following interviews
by a subcommittee on the election of judges of the Legal Affairs and Human Rights
Committee. The current round of election of more than 20 judges illustrates well the
shortcomings in the present system. As regards the October 2007 election three states
have simply not submitted lists at all13 and so the sitting judges will continue their
functions until replaced as the Convention provides. The lists concerning five judges
have been rejected by the Bureau of the Parliamentary Assembly after the candidates
had been interviewed by the Assemblys subcommittee, reportedly on the basis that

12
The Executive not only dispenses the honors, but holds the sword of the community. The
legislature not only commands the purse, but prescribes the rules by which the duties and rights
of every citizen are to be regulatedThe Federalist No.78 (1788).
13
Latvia, Luxembourg and Slovenia. By the end of November, only Slovenia had not yet
submitted a list but one was reported to be in the pipeline.
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10 On Reforming the Operation of the European Court of Human Rights

either the persons were not qualified to hold judicial office or that there was only one
properly qualified candidate and thus no real choice offered to the electors.
The result of this development is that it is not at all certain today that all of the
elections will have taken place by the end of January 2008 and that the electoral round
will be completed even by May 2008. To add to the confusion the Committee of Ministers
has asked the Court for an advisory opinion on the question of whether the gender
requirements in the lists of candidates submitted for election by the PACEthere must
be at least one woman in the listis compatible with the Convention. This arose because
Malta claimed that it was unable to find a suitably qualified woman to include on its list.
In addition the Ukraine is also contesting the right of the Assembly to refuse to allow it
the right to withdraw its list at a late stage in the electoral process and to proceed to an
election.
What needs to be done? I do not have all the answers and the rejection of so many
lists by the Bureau of the Assembly shows that the scrutiny of the lists is being carried
out most rigorously. The law and practice of appointments to the Court has already
been the subject of independent scrutiny in 2003 by a panel of judicial experts brought
together by the non-governmental organisation, INTERIGHTS.14 The panel noted that
without the effective implementation of objective and transparent criteria based on
professional qualification there was the very real possibility that the judges selected
would not have the requisite skills and abilities to discharge their mandate and that
declining standards would ultimately impact negatively on the standing of the Court. It
is suggested that, in the light of the present difficulties, the time has come to take a fresh
look at some of the recommendations set out in this report. These recommendations
are designed essentially to ensure a strong element of independence in the election
procedure and the elimination of purely political nominations.
Two proposals stand out. The first is that at national level, following advertisement
in the specialised press, an independent body consisting of judges and individuals
with academic and relevant experience in international law and human rights would
interview and shortlist candidates and that the state should submit an account of its
nomination procedure with its list of candidates to facilitate transparency and oversight.
The second is that at the international level the body making recommendations on the
eligibility of candidates to the Parliamentary Assembly should be either an independent
body composed of persons with relevant experience or alternativelyand perhaps
more realisticallythat the existing subcommittee would be strengthened by having
available to it a group of independent judicial assessors, for example, former judges or
senior members of the judiciary, who would be directly involved in the interviewing of
candidates and who would be expected to provide reasoned advice to the subcommittee
with a view to identifying the most qualified candidate.

Conclusions
I started this lecture by referring to a paradox. Why is it that the system enjoys such
a reputation even though it is beset with so many apparently intractable problems?

14
See The Law and Practice of Appointments to the European Court of Human Rights (INTERIGHTS,
May 2003).
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Opinion Michael OBoyle 11

There is another paradox which I mention in parenthesis. How is it that there is no or


little public or media discussion about these problems given the popularity of the Court
as a European institution? For example, the dispute concerning the non-ratification by
Russia of Protocol No.14 is taking place entirely under the radar. Is this explained by
the lack of accessibility to information about the Court or the technicality of the issues
involved? Yet the Court has one of the best developed websites of any jurisdiction
and is committed to a policy of openness and transparency and there is no shortage of
any public information on the matter. It is curious and perhaps unfortunate that this
fascinating debate appears to be confined to the corridors in Strasbourg.
Undoubtedly, part of the answer to the central paradox resides in the fact that the Court
is an example of a judicial process which by judgment alonewithout the power over
purse or sword, and, notwithstanding passing enthusiasms and disappointmentshas
managed to secure the confidence of the Member States, the superior national courts
and the public. Central to this confidence lie three elements: the quality of the Courts
judgments which must at all costs be maintained despite the buffetings of the moment
as well as the social and political relevance of these judgments to the issues of the day;
the independence of the institution which will continue to be the subject of reflection
and action; and lastly the ongoing dialogue with national judges, whether that dialogue
is carried out by the Courts review of national decisions in the course of adjudication
or by receiving delegations from national courts to discuss case law developments. It
is the routine application of Strasbourg case law by national courts that must be the
ultimate goal of a reformed Convention system.
The former Swiss President of the Court, Luzius Wildhaber, makes essentially the
same point but in a more memorable manner that I cannot improve on and that is a
fitting end to this reflection:

How do we see a European Court of Human Rights? What is it and what should
it be? Should it be an instrument of European integration? Should it do the job of
non-governmental organisations? Should it be what I sometimes call a fighting
machine for human rights or for certain theories concerning human rights? Should
it espouse a political role and, if so, what sort of role? Should it, as some American
writers would put it, be the defender of the system, which must surely mean that
the Court should defend the ruling class or governmental system of each Member
State? These questions would surely deserve an elaborate answer and there is no
time for that. But I would give a deceptively simple answer and say that a court
should be just that and no more than that: it should be a court.15

15
Speech given on the opening of the judicial year, January 19, 2007, reproduced in Dialogue
between Judges, pp.9899.
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Bulletin
European Court of Human Rights

The Court gave inter alia the following judgments in SeptemberOctober 2007:

on September 6 in Johansen v Finland, finding a breach of Art.8 in that the


applicants had been refused registration of the name Axl for their son;
in Kucheruk v Ukraine, finding breaches of Art.3 in that the applicant when
transferred to prison was beaten with truncheons, kept handcuffed in solitary
confinement for seven days and not given the medical care and supervision
appropriate to his mental disorder;
on September 11 in L v Lithuania finding a violation of Art.8 in that a legislative
gap left the applicant, a transsexual who had begun operative surgery which
had then been suspended, in a state of distressing uncertainty; in Tremblay v
France finding no breach of Art.3 where the applicant who had been required
to pay social security contributions claimed that this effectively prevented
her from leaving prostitution; in Aksakal v Turkey finding a procedural breach
of Arts 2 and 3 in respect of the ineffective investigation into the death of the
applicants husband in custody (and finding no competence ratione temporis
to consider the substantive aspect of the death which occurred in 1982); in
Bulgakov v Ukraine finding no breach of Art.14 as regarded the applicants
complaints of the Ukrainianisation of his Russian name in official documents;
on September 20 in Sultani v France finding no violation of Art.3, or Art.4 of
Protocol No.4, in the proposed expulsion of the applicant to Afghanistan;
on September 26 in Muhammet Sahin v Turkey finding violations of Art.3
in that the applicant had been tortured in police custody and no effective
investigation had been carried out into his allegations;
on September 27 in Kolona v Cyprus finding violations of Art.8 and Art.1
of Protocol No.1 in that the authorities had demolished the applicants
house during the period when appeal was possible and after revocation
of the acquisition order; in Housing Association of War Disabled and Victims
of the War in Attica v Greece finding a breach of Art.1 of Protocol No.1 in
that the applicants had been prevented from building on their land without
compensation for over 40 years (5 million was awarded); in Nikolay Dimitrov
v Bulgaria finding a breach of Art.3 where the authorities failed to conduct
an effective investigation into the applicants allegations that he had been
tortured by men who threatened to kill him if he did not change his testimony
in a criminal case;
on October 2 in Dolek v Turkey finding no breach of Arts 2 or 13 where the
police officer convicted of shooting the applicants husband during a raid,
causing him fatal injuries, received a suspended prison sentence due to good
conduct; in Fahriye Caliskan v Turkey finding breaches of Arts 3 and 13 due to
ill-treatment in police custody;
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Bulletin 13

on October 4 in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland, finding


a breach of Art.10 where the courts refused the applicant companys request
for revision of a decision banning a commercial which the Court had
previously found in breach of Art.10; in three Russian cases concerning life-
threatening attacks and killings by soldiers in Chechnya, Goncharuk, Goygova
and Makhauri, finding various breaches of Arts 2 and 13; in Corcruff v France
finding no violation of Art.6 in that the prosecutor had been present during
an information meeting for jurors; in Sanchez Cardenas v Norway finding
a breach of Art.8 in that a domestic court, in custody proceedings, made
statements imputing that the applicant had committed abuse;
on October 9 in Hasan and Eylem Zengin v Turkey, finding a breach of Art.2 of
Protocol No.1 where the authorities had refused to exempt an Alevi Muslim
child from religious culture and ethics lessons; and in Saoud v France, finding
inter alia a breach of Art.2 in that the applicant had died from asphyxia due
to the restraint techniques used by police on arrest;
on October 11 in Bozgan v Romania finding a breach of Art.11 in that
the authorities had banned an association called the Anti-mafia National
Guard; in Kanellopolou v Greece finding a breach of Art.10 in that the applicant
had been convicted and sentenced to a suspended prison term, in defamation
proceedings brought by a doctor, for statements reported by the press about
her distressing medical experience;
on October 22 in Lindon, Otchakovsky-Laurens and July v France, finding no
breach of Art.10 in respect of the conviction for defamation of a writer and
publisher of a novel implicating Jean-Marie Le Pen in murders by National
Front militants or in the conviction of a newspaper for an article contesting
the convictions;
on October 23 in Colibaba v Moldova finding violations of Art.3 for
ill-treatment in custody and of Art.34 where the Prosecutor-General
issued a statement criticising lawyers, including the applicants, for using
international organisations such as, inter alia, Amnesty to spread defamatory
statements against the state;
on October 25 in Lebedev v Russia, finding five violations of Art.5 concerning
the detention of the applicant, former top manager of the oil company Yukos;
in Yakovenko v Ukraine finding breaches of Art.3 due to conditions of prison
detention, transfer and lack of medical care.

The Court issued a decision in Al-Fayed v France, rejecting as inadmissible


complaints under Arts 3, 6 and 13 alleging inter alia inadequate investigations
into the circumstances of the applicants sons death in Paris.
The Court held the following hearings in SeptemberOctober 2007:

on September 4 in Georgian Labour Party v Georgia (No.2), concerning, inter alia,


complaints about the conduct of the 2004 legislative elections, the composition
of the Central Electoral Commission and the rules for preliminary registration
of voters and the drawing up of the electoral list;
on September 20 in Kononov v Latvia, concerning principally the complaints
of the applicant that he was tried and convicted of war crimes for alleged
acts when he was a Soviet guerrilla fighting the Germans in breach of Art.7;
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14 Bulletin

on September 26 in N v United Kingdom, concerning the applicants complaints


under Art.3 that, suffering from advanced HIV, her life expectation would
be reduced to less than 12 months if she was sent back to Uganda;
on October 18 in Tatar and Tatar v Romania, raising complaints under Arts 2
and 8 concerning toxic mining processes at a gold mine and alleged impact
on the health of local inhabitants;
on November 14 in Kovacic v Slovenia (Grand Chamber), concerning
complaints under Art.1 of Protocol No.1 of the freezing of the applicants
savings in the Zagreb Branch of the Ljubljana Bank;
on November 21 in Yumak and Sadak v Turkey, concerning complaints under
Art.3 of Protocol No.1 that electoral provisions excluded parties from taking
seats in the National Assembly unless they obtained at least 10 per cent of
the vote;
on November 27 in Ecumenical Patriarchate v Turkey, concerning complaints
principally under Arts 14 and 1 of Protocol No.1 that the applicant religious
organisation had had its title annulled to property.

On October 3 new judges were elected for Albania, Cyprus, the former Yugoslav
Republic of Macedonia, Georgia, Hungary and Spain. Sitting judges were
re-elected for Andorra, Armenia, Austria, Denmark, Italy and Romania.

Committee for the Prevention of Torture


The following reports were made public: on the Committees visits to Albania
in 2006, to Malta in 2005, to Ireland in 2006 and to Georgia in 2007.
The following visits were made: to the Russian Federation, Moldova, Spain,
Switzerland and the former Yugoslav Republic of Macedonia.

Signatures and ratifications


France ratified Protocol No.13 to the European Convention on Human Rights
(abolishing the death penalty in all circumstances).

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Bulletin: Counter-terrorism and
Human Rights

Compiled by the International Commission of


Jurists (ICJ)

This bulletin covers the events of October and November 2007. It is compiled by the
International Commission of Jurists, a non-governmental organisation working to advance
understanding and respect for the Rule of Law and the protection of human rights throughout
the world. The material in the bulletin is drawn from the ICJ E-Bulletin on Counter-terrorism
and human rights, which provides updates on developments in counter-terrorism and human
rights in all regions of the world. Subscription to the E-Bulletin is free of charge on the ICJ
website http://www.icj.org.

Europe and Commonwealth of Independent States

United Kingdom: House of Lords refines rules governing control orders. On


October 31, the House of Lords handed down three judgments relating to
control orders imposed on terrorism suspects on the basis of the Prevention of
Terrorism Act 2005.1 They held that restrictions imposed by one of the control
orders, including an 18 hour curfew, amounted to a deprivation of liberty but
restrictions under other orders, including up to 14 hour curfews, did not. It
was held that, although the use in control order proceedings of secret evidence
disclosed only to a special advocate was not inherently contrary to the right
to a fair hearing, that right was breached where a control order was entirely
based on evidence not disclosed to the suspect.
Spain: Trial of persons involved in the attacks of March 11, 2004 in Madrid
concludes. On October 31, 21 people were convicted of membership of a terrorist
organisation, terrorist murder, attempt of terrorist murder, terrorist bloodshed
and several offences of falsification of official documents in relation to the 2004
attacks.2 Among the eight suspects acquitted of all the charges was Rabei Osman

1
Secretary of State for the Home Department v JJ [2007] UKHL 45; [2007] 3 W.L.R. 642; Secretary of
State for the Home Department v MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681; Secretary of State
for the Home Department v E [2007] UKHL 47; [2007] 3 W.L.R. 720.
2
Audiencia Nacional Sala de lo Penal Seccion Segunda, Summario numero
20/04 del Juzgada
Central de Instruccion Numero
6, Sentencia numero
65/2007, See decision (in Spanish) at
http://www.icj.org/IMG/11m 03 fundamentosyfallo.pdf [Accessed December 19, 2007].
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
16 Bulletin

El Sayed Ahmed, sentenced one month before by an appeals court in Milan


(Italy) to eight years imprisonment for membership of a terrorist organisation
and preparation of a terrorist act. Mr Rabeis lawyer is to appeal the Milan
courts decision on the grounds of the Madrid courts acquittal.3
Armenia: Parliament adopts new law on surveillance of phone and mail. On
October 22, the National Assembly adopted a new surveillance law, with the
aim to counter terrorism and protect the security of the state. This law allows
the police, intelligence, customs, tax and justice services to wiretap phone
conversations and read private mail without any court order. It also regulates
the work and status of informants. The minority opposition in the Assembly
expressed concerns that the new law violates the right to private life.4

United Nations and regional organisations


European Union: Secretary-General of the Council appoints new Counter-
Terrorism Co-ordinator. On September 19, Mr Javier Solana appointed Mr
Gilles de Kerchove, from Belgium, as the new Counter-Terrorism Co-ordinator.
His main tasks will be to co-ordinate the work of the Council of Ministers in
the field of counter-terrorism, maintain an overview of the resources at the
European Unions disposal and monitor the implementation of the EU counter-
terrorism strategy.5 The post had been empty since Mr Gijs de Vries resigned in
March.
European Union: European Commission proposes new terrorism offences.
On November 6, the European Commission issued a proposal to amend the
2002 Council Framework Decision on combating terrorism, for decision by
the Council. The new Framework Decision, applicable to all Member States,
would create the offences of public provocation to commit a terrorist offence,
recruitment for terrorism and training for terrorism.6 The definitions of
these offences are taken from the 2005 Council of Europe Convention on the
Prevention of Terrorism, but do not include the clause protecting freedoms of
expression, association and religion.7
European Union: European Commission proposes to record airline
passengers data. On November 6, the European Commission put forward

3
21 Guilty, Seven cleared over Madrid Train Bombings, Guardian, October 31, 2007; El
11-M se queda sin autores intelectuales al quedar absueltos los tres acusados de serlo, El Pas,
October 31, 2007.
4
Security at What Cost?: New law allows widespread freedoms on personal surveillance,
http://www.armenianow.com, November 2, 2007; New Armenian law to facilitate phone tapping,
http://www.armenialiberty.org, November 22, 2007.
5
Council of the EU, press release, Brussels, September 19, 2007, S256/07, Javier Solana, EU
High Representative for the CFSP, appoints Mr Gilles de Kerchove as EU Counter-Terrorism
Coordinator.
6
European Commission, Proposal for a Framework Decision of the Council, Modifying the
Framework Decision of 13 June 2002, on Combating Terrorism COM(2007) 650.
7
Proposed expansion of EU Terrorism Law a threat to freedom of expression,
http://www.statewatch.org.
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Bulletin 17

proposals for a system of collection and storage of data on all airline passengers
flying to and from the European Union.8 This data would be provided to
designated law enforcement authorities of Member States for purposes of
preventing or countering terrorism and organised crime, and could also be
provided to law enforcement authorities of third countries for the same
purposes. Data is to be retained for a period of five years, and then for an
additional period of eight years in a dormant database, available to Member
State authorities in exceptional circumstances only.
Council of Europe: new report criticises UN and EU terrorism blacklists. On
November 12, Dick Marty, Rapporteur of the Committee on Legal Affairs and
Human Rights of the Council of Europe, released his preliminary report on
UN Security Council and EU terrorism blacklists.9 According to the report, the
creation and maintenance of these lists lacks procedural safeguards and violates
the rights to fair trial, to property and to freedom from defamation. The report
found that procedures governing the blacklisting do not provide appropriate
and effective remedies.
Council of Europe: Committee adopts recommendation on renditions and
secret detentions. On November 8, the Steering Committee on Human
Rights of the Council of Europe adopted comments on the resolution
adopted by the Parliamentary Assembly following the second report of
Senator Marty on renditions and secret detentions in June 2007. Noting
the positive obligations of states to protect against such violations of
human rights, it proposed that the Committee of Ministers convene an
expert meeting to identify issues raised by renditions and secret detentions,
which could be the subject of follow-up action by the Council of
Europe. 10
United Nations: UN and regional organisations advocate for respect of human
rights. Between October 29 and 31, international and regional organisations met
in Nairobi for the fifth time with the UN Counter-Terrorism Committee, on the
issue of Prevention of Terrorist Movement and Effective Border Security. The
final statement reaffirms that measures taken to combat terrorism must comply
with human rights, and recommends that states sign and ratify all the major
human rights conventions. Particular attention was requested for the rights of
asylum-seekers.11

8
European Commission, Proposal for a Council Framework Decision on the Use of Passenger
Name Record (PNR) for law enforcement purposes COM(2007) 654; Summary of the Impact
Assessment SEC(2007) 1422.
9
Parliamentary Assembly of the Council of Europe, Provisional draft report on UN Security
Council and European Union blacklists, November 12, 2007.
10
Report of the 65th Meeting of the Steering Committee for Human Rights CDDH(2007) 023.
Abstract of report: http://www.icj.org/IMG/Annex9 CDDH .pdf [Accessed December 19, 2007].
11
Joint statement of the Fifth Special Meeting of the Counter-Terrorism Committee with
international, regional and subregional organizations on Prevention of Terrorist Movement
and Effective Border Security, Nairobi, October 2931, 2007, http://www.un.org/sc/ctc/pdf/
Nairobi joint statement.pdf [Accessed December 19, 2007].
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18 Bulletin

Americas

United States: Trial of Guantanamo Bay detainee Omar Kadhr resumes


before a Military Commission. On September 24, the Court of Military
Commission Review ruled that the Military Commissions held the power
to decide who is an unlawful enemy combatant and should not rely only on
decisions made by the Combatant Status Review Tribunals.12 This appeal ruling
reinstated terrorism charges against Guantanamo Bay detainee Omar Kadhr,
who appealed this decision on October 10 before the DC Circuit Court. The
appeal was rejected on November 6. On November 8, a Military Commission
decided to go ahead with his trial in December, without calling an eyewitness
who could help clarify his status as unlawful enemy combatant.13 The UN
Special Representative on Children in Armed Conflict expressed concern on
November 20 about the prosecution of Omar Kadhr for crimes committed when
he was a minor.14
United States: Supreme Court applies state secrets doctrine to rendition victim
Khaled El-Masri. On October 9, the US Supreme Court refused to hear an appeal
brought by German citizen Khaled El-Masri, on claims of abduction and torture
by US agents.15 The Supreme Court confirmed lower courts decisions that state
secrets would be revealed if the case was heard before a court. Mr El-Masris
lawyers had argued that it was sufficient to reject a case without assessing the
evidence.
Canada: Government presents two counter-terrorism Bills to Parliament. Bill
C-3, presented on October 22 to the House of Commons, modifies the previous
system of security certificates, to allow the government to detain and deport
foreign terrorist suspects, and creates a system of special advocates, who can
intervene when evidence is heard without the presence of the suspects or their
lawyers.16 On October 23, the Government presented Bill S-3 to the Senate; it
plans to reinstate investigative hearings and arrest of terrorist suspects without
judicial warrants.17

12
United States Court of Military Commission Review, USA v Khadr, September 24, 2007,
Opinion of the Court and Action on Appeal by the United States filed pursuant to 10 USC 950d,
http://www.scotusblog.com.
13
New Khadr witness discovered, http://www.thestar.com, November 9, 2007.
14
Khadr trial could set precedent for prosecution of minors: UN representative,
http://www.jurist.law.pitt.edu, November 21, 2007.
15
US Supreme Court, Order list, 552US, October 9, 2007, http://www.supremecourtus.gov; ACLU
press release, October 9, 2007, Supreme Court declines case of innocent CIA kidnapping victim
Khaled El-Masri.
16
Bill C-3, Immigration and Refugee Protection Act, http://www2.parl.gc.ca.
17
Bill S-3, An Act to Amend the Criminal Code (Investigative hearing and recognizance with
conditions), http://www2.parl.gc.ca. For background on the review of Canadian counter-terrorism
law, see Institute of Research and Public Policy, Better Late than Never? The Canadian Parliamentary
review of the Anti-Terrorism Act, http://www.icj.org/IMG/IRPP.pdf [Accessed December 19, 2007].
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Bulletin 19

Rest of world
Singapore: New Bill creates new terrorism-related offences. On October 23, the
Parliament passed the Suppression of Bombings Act 2007, to ease international
co-operation in countering terrorism.18 While most measures in this law stem
from the UN Convention on terrorist bombings, some do not, including the
death penalty for suspects who have intended to cause death, the criminalisation
of incitement to commit an attack, and the criminalisation of non-disclosure of
information about a possible bombing.
Pakistan: Lawyers protesting at emergency rule charged with terrorism. On
November 3, General Pervez Musharraf declared a state of emergency in
Pakistan, on the basis that some members of the judiciary were creating
obstacles to government activity in the fight against terrorism.19 On the same
day, he issued a provisional constitutional order, under which senior judges
were required to take a new oath. In the following days, protests erupted in
several cities.20 Many lawyers and human rights activists were arrested during
these protests and charged with acts of terrorism under Art.6 of the Anti-
Terrorism Act21 or with violation of Art.16 of the Maintenance of Public Order
Act. Most of them were released on November 21.
Pakistan: New law gives military tribunals jurisdiction for terrorism offences.
On November 10, General Pervez Musharraf promulgated the Pakistani Army
(Amendment) Ordinance amending the Army Act 1952, which sets up the
jurisdiction of military courts.22 Through this amendment, the jurisdiction
of military courts was extended to offences included inter alia in the Anti-
terrorism Act, the Explosive Substances Act and the Security of Pakistan Act,
and committed since January 2003. As a result of this measure, terrorism
suspects and demonstrators can be prosecuted in martial courts.
New Zealand: Parliament adopts amendment to strengthen the Terrorism
Suppression Act 2002. On November 13, the Parliament adopted the Terrorism
Suppression Amendment Bill, which includes the adoption of the UN lists
of terrorist organisations and suppresses existing judicial review of the
management of these lists by the Prime Minister.23 Concerns were raised
over the possible use of the Anti-Terrorism Bill against protesters because of the
overbroad definition of terrorist acts.24

18
Terrorism (Suppression of Bombings) Bill No.37/2007.
19
Proclamation of emergency: http://www.icj.org/IMG/pakistan emergency.pdf [Accessed
December 19, 2007].
20
Provisional Constitutional Order: http://jurist.law.pitt.edu/gazette/2007/11/provisional-constitu
tion-order-pakistan.php.
21
Anti-Terrorism Act s.6 is inserted by Pakistan Anti-Terrorism (Amendment) Ordinance
1999 s.5: http://satp.org/satporgtp/countries/pakistan/document/actsandordinences/anti terrorism.htm
[Accessed December 19, 2007].
22
Pakistan Army (Amendment) Ordinance: http://www.icj.org/IMG/Pakistan Army
Ordinance.pdf [Accessed December 19, 2007].
23
Terrorism Suppression Amendment Bill, http://www.parliament.nz.
24
Terrorism Bill passed into law, New Zealand Herald, November 13, 2007.
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Articles

Constitutionalising Equality: New


Horizons
Karon Monaghan
Barrister, Matrix Chambers

Bill of Rights; Discrimination; Enforcement; Equal treatment; Equality;


Justiciability; Legislation; Proportionality

This article explores the possibilities for constitutionalising an equality guarantee and
the fundamental principles that should underpin any such guarantee. It examines the role
of equality in the absence of a formal constitutional guarantee and suggests a way forward
in which legal equality can be assured with positive effect.

A constitutional equality guarantee: introduction


Great Britain does not have a constitutional equality guarantee, not least because it has
no written constitution. The Discrimination Law Review,1 launched in early 2005, was
established to assess how our anti-discrimination legislation can be modernised to
fit the needs of Britain in the 21st Century. Its work was to include consideration of
the fundamental principles of discrimination legislation and its underlying concepts
and a comparative analysis of the different models for discrimination legislation.2 The
long-awaited Green Paper3 published in June 2007 included little to suggest that any
significant consideration had been given either to fundamental principles or to available
legal models for addressing inequality and disadvantage. However, the establishment
of the new Equality and Human Rights Commission,4 which has at its outset called

1
See Joint DTI and Cabinet Office Release at http://www.gnn.gov.uk/environment/
detail.asp?ReleaseID=148053&NewsAreaID=2&NavigatedFromDepartment=False and Discrimination
Law Review: Terms of Reference, http://www.womenandequalityunit.gov.uk/dlr/terms of ref.htm
[Accessed January 20, 2008].
2
Joint DTI and Cabinet Office Release and http://www.womenandequalityunit.gov.uk/dlr/
index.htm [Accessed December 19, 2007].
3
Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill
for Great BritainA consultation paper (June 2007), http://www.communities.gov.uk/publications/
communities/frameworkforfairnessconsultation [Accessed December 19, 2007].
4
Equality Act 2006 and see http://www.equalityhumanrights.com/pages/eocdrccre.aspx [Accessed
December 19, 2007].
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Article Karon Monaghan 21

for a constitutional promise on equality5 and the present debate around the gover-
nance of Britain more generally,6 provide a renewed opportunity to consider what a
constitutionalised equality guarantee for Britain could look like.
A fully formed constitutional equality guarantee, like those seen in some other
jurisdictions, would bring many advantages for Britain. It would have the effect of
truly mainstreaming equality norms into the exercise of all of the functions of the State,
including those of the legislature and the judiciary. Constitutional equality guarantees
are usually multi-faceted, including guarantees of equality before the law and equal
protection and benefit of the law.7 Their content is such then that they will usually
allow for equal protection and application of the law in a formal sense, so outlawing
discriminatory acts by public authorities save where justified. However, they also
provide a guarantee of protection of equal laws. This allows for judicial review of
the content of laws. They are capable, then, of functioning so as to afford equality
under the law not merely in a Diceyan, or formalistic, sense, but in a substantive sense.
Such equality guarantees operate so as to allow for the scrutiny of any measure for its
(discriminatory) impact, its breadth (over-inclusiveness and under-inclusiveness) and
its substantive content:
[I]n other words, the equal protection of the laws is invariably treated as a
substantive constitutional principle which demands that laws will only be legitimate
if they can be described as just and equal.8

Such an approach mainstreams equality norms and provides important protections, in


particular for minorities and, although constitutional guarantees bind only state organs,
they may, of course, have horizontal effect when addressing legislation affecting private
persons. This ability to check the law for its discriminatory impact would provide added
value in this jurisdiction where such is not possible under our present constitutional
arrangements.9
Though constitutionalising an equality guarantee might be said to be antithetical
to our constitutional traditions, we have seen developing a common law principle
of equality,10 and the Human Rights Act 1998 (HRA), through Art.14, has already

5
Response to the Discrimination Law Review: A Framework for Fairness: Proposals
for a New Equality Bill for Great Britain, http://www.equalityhumanrights.com/Documents/
Equality%20and%20Human%20Rights%20Commissions%20response%20to%20the%20Discrimina
tion%20Law%20Review.doc, p 6 [Accessed December 19, 2007].
6
See, The Governance of Britain, 2007, Cm.7170, paras 204 et seq.
7
See South African Constitution art.9; Canadian Charter of Rights and Freedoms s.15; and US
Constitution, Fourteenth Amendment.
8
See P.G. Polyviou, The Equal Protection of the Laws (Duckworth, 1980), p.4.
9
Save in limited circumstances, such as where legislation has been enacted under European
Communities Act 1972 s.2 or where falling within the parameters of the HRA. See, e.g. A v
Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68; R. (on the application of
Amicus) v Secretary of State for Trade and Industry [2004] EWHC Admin 860; [2004] I.R.L.R. 430; and
R. (on the application of the Equal Opportunities Commission) v Secretary of State for Trade and Industry
[2007] EWHC Admin 483, [2007] I.R.L.R. 327.
10
Matadeen v Pointu [1999] 1 A.C. 98 at 109; J. Jowell, Is Equality a Constitutional Principle?
[1994] 7 C.L.P. 1.
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22 Constitutionalising Equality: New Horizons

introduced a quasi-constitutional equality guarantee, albeit a limited one. Further,


the anti-discrimination enactments have been extended so as to cover many of the
functions of public authorities and to impose, albeit limited, equality duties upon them
so extending their reach into the sphere of state activity.11 It might be argued that
any constitutional equality guarantee would allow for a challenge to law and this
would be inconsistent with the tradition of parliamentary sovereignty. However, legal
developments have ensured that there is some ability to challenge the legality of law,
including statutory measures, through the declaration of incompatibility route, EU
law and through the growth of judicial review.12
It might also be argued against a constitutional equality guarantee that such would
hand over too much power to the judges, an unelected and largely unaccountable
body. This was an argument which was well rehearsed (and is frequently revisited)
in the context of the enactment of the HRA. The question whether the HRA or any
further measure would hand over too much power to the judges is not fundamentally
a legal question but a political question. However, against it might be said that we
already hand over significant power to the judges, most notably through the judicial
review process and the HRA. Further, and more particularly, whether or not such is
deemed to be handing over too much power to the judges depends upon how we
choose to construct our notions of democracy. If we regard a properly functioning
modern liberal democracy as necessarily underpinned by certain fundamental values
and freedoms (such as free speech, the right to vote, for example) then it might be argued
convincingly that there must be some process by which the extent to which those rights
are respected can be determined and by which those rights can be securedthat is,
they must be justiciable and enforceableif democracy is to be protected. Under our
present democratic arrangements, the courts would seem the obvious place to locate
that process. A firmer foundation for criticising the handing over of greater power to the
judges might be found in an examination of the present composition of the judiciary,
which continues to be drawn from a fairly narrow class (white, male, ex-private school,
Oxbridge, Bar). There is then a proper basis for arguing that the judiciary should be
more diverse or representative, so enhancing participative democracy.13 However,
to deprive the community of an equality guarantee because the present composition of

11
Sex Discrimination Act 1975 ss.21A and 76A; Sex Discrimination Act 1975 (Public
Authorities) (Statutory Duties) Order (SI 2006/2930); Sex Discrimination (Public Authorities)
(Statutory Duties) (Scotland) Order 2007 (SSI 2007/32); Race Relations Act 1976 ss.19B and 71;
Race Relations Act 1976 (Statutory Duties) Orders 2001 (SI 2001/3458) and 2004 (SI 2004/3125);
Race Relations Act 1976 (Statutory Duties) (Scotland) Order 2002 (SSI 2002/62); Disability
Discrimination Act 1995 ss.21B and 49A; Disability Discrimination (Public Authorities) (Statutory
Duties) Regulations 2005 (SI 2005/2966); Disability Discrimination (Public Authorities) (Statutory
Duties) (Scotland) 2005 (SSI 2005/565); Equality Act 2006 s.52; Equality Act (Sexual Orientation)
Regulations 2007 (SI 2007/1263) reg.8.
12
A v Secretary of State for the Home Department [2005] 2 A.C. 68; R. (on the application of Amicus)
v Secretary of State for Trade and Industry [2004] I.R.L.R. 430 and Equal Opportunities Commission
v Secretary of State for Trade and Industry [2007] I.R.L.R. 327 and R. (on the application of Elias) v
Secretary of State for Defence [2005] EWHC 1435 (Admin), respectively.
13
S. Fredman, Scepticism under Scrutiny: Labour Law and Human Rights in T. Campbell,
K.D. Ewing, and A. Tomkins (eds), Sceptical Essays on Human Rights (OUP, 2001), p.197 at p.207.
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Article Karon Monaghan 23

the judiciary is drawn from a narrow class would not seem the right answer. Such an
approach would hardly protect the minorities such a guarantee aspires to protect in a
majoritarian democratic state.
In one sense it might be argued that it is difficult to justify not having a constitution-
alised equality guarantee. We now recognise the importance of not violating respect for
family life, home, religion, etc. without justification and in so doing recognise the value
of equality (in the right to enjoyment of family life, home and religion, etc.) but only for
certain classes and for certain purposes.

Models

A fully formed constitutional equality guarantee fit for Britain

A fully formed constitutional equality guarantee in a Bill of Rights for a modern British
environment should:

effectively mainstream equality norms by ensuring that all state organs are
subject to it and that it guarantees both formal and substantive equality;
reflect values that are familiar to people who have their home in Britain, which
are equally respectful to those who are here temporarily and to which we can all
therefore subscribe. The values underpinning such a guarantee might be those
discussed below, including respect for human dignity; respect for and valuing
of diversity; a commitment to ameliorating disadvantage; equal opportunity
and equal participation. These values are largely reflected in the Equality Act
2006.14 Constitutional instruments will usually have a preamble setting out the
context for their enactment and these should explain the purpose of any equality
guarantee.

As described below, constitutional equality guarantees are usually multi-faceted,


including guarantees of equality before the law and equal protection and benefit
of the law (see South Africa, Canada and, differently expressed, the United States).
This is important in ensuring that they allow for equal protection and application of the
law in a formal sense, so outlawing discriminatory acts by public authorities, but also
provide a guarantee of protection of equal laws. More limited guarantees carry the risk
of providing formalistic protections only, adding little value to our statutory equality
regime.15 A more substantive equality guarantee would have the effect of scrutinising
the content of the law itself for its discriminatory impact.
As to what a constitutional guarantee should look like, drawing on the experiences
and learning of other jurisdictions, an equality guarantee in a Bill of Rights for Britain
might read as follows:

(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.

14
Equality Act 2006 ss.3, 810 especially.
15
See, Bliss v Attorney General (Canada) [1979] 1 S.C.R. 183, under the Canadian Bill of Rights,
prior to the Canadian Charter.
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24 Constitutionalising Equality: New Horizons

(2) Equality includes the full and equal enjoyment of all rights and freedoms, the
right to respect for the dignity and worth of each individual and the right of
each individual to have an equal opportunity to participate in society.
(3) The state may not discriminate directly or indirectly, including by a failure to
make reasonable adjustments, against anyone on one or more grounds, or a
combination of grounds, including colour, race, nationality, ethnic or national
or social origins, gender, sex, pregnancy, marital status, sexual orientation,
disability, religion, conscience, belief, culture, age, language and birth.
(4) Subsections (1)(3) do not preclude any law, programme or activity that has
as its object and outcome the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because of
colour, race, nationality, ethnic or national or social origins, gender, sex,
pregnancy, marital status, sexual orientation, disability, religion, conscience,
belief, culture, age, language and birth.
(5) Legislation must be enacted to prevent or prohibit discrimination by the State
and private persons.

This is an amalgam of constitutional guarantees in other jurisdictions, case law under


them and our own equality measures. Consideration would have to be given to the
question whether the concepts contained within such a guarantee should be further
elaborated upon or whether they should be left to the courts to decide. In a constitutional
context, these equality guarantees would not in any case be understood as absolute.16
Given that a constitutional guarantee might be expected to be with us for generations,
there is much to be said for not adopting a very rigid approach to its meaning in a
constitutional instrument. Some jurisdictions provide parameters around the limitations
to which the constitutional equality rights might be subject. The advantage of this is
that the equality rights can never be reduced by the state (even with the connivance of
the courts) to such an extent as to remove their essential content. It might be desirable,
therefore, to include provision similar to the following (adopting, in essence, a strict
proportionality approach):

Article X may be limited only in terms of law of general application to the


extent that the limitation is justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all relevant factors,
including

(a) the nature of the right;


(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.17

16
Harksen v Lane [1997 (110) B.C.L.R. 1489 (CC)], CCT 9/97, paras 4252: South African
Constitution art.9; Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497:
Canadian Charter s.15. See too case law under Art.14 ECHR, most recently, DH v Czech Republic
(App No.57325/00), judgment of November 13, 2007.
17
South African Constitution art.36(1).
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Article Karon Monaghan 25

The Preamble to the Bill of Rights or constitutional instrument, however described,


should explain too the purpose of the guarantee and the values that underpin it, so
providing a relevant interpretative context. This is discussed further below.

A freestanding equality guarantee in legislation

The draft provision above, with modifications, could be enacted in ordinary legislation.
This is important to consider because of the Governments manifesto commitment to
introduce a Single Equality Bill during this Parliament.18 This could provide a vehicle
for the introduction of a constitutionalised equality right. Such provision would
have constitutional status for only so long as Parliament decided not to repeal it
(such is the nature of our present constitutional arrangements which make Parliament
supreme). Nevertheless the HRA model could be adopted to give an equality guarantee
quasi-constitutional status. As to what a statutory but constitutionalised freestanding
equality guarantee should look like, it might be as follows:

Equality: The Right

1. (1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms,
the right to respect for the dignity and worth of each individual and the
right of each individual to have an equal opportunity to participate in
society.
(3) The state may not discriminate directly or indirectly against anyone on
one or more grounds, or a combination of grounds, including colour, race,
nationality, ethnic or national or social origins, gender, sex, pregnancy,
marital status, sexual orientation, disability, religion, conscience, belief,
culture, age, language and birth.
(4) Subsections (1)(3) do not preclude any law, programme or activity that has
as its object and outcome the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because of
colour, race, nationality, ethnic or national or social origins, gender, sex,
pregnancy, marital status, sexual orientation, disability, religion, conscience,
belief, culture, age, language and birth.

Limitation
2. The rights and freedoms guaranteed by section 1 may be limited only by laws
of general application to the extent that the limitation is justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including

(a) the nature of the right;


(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;

18
Discrimination Law Review Consultation Paper (June 2007).
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26 Constitutionalising Equality: New Horizons

(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

Public Authorities
3. It is unlawful for a public authority to act in a way which is incompatible with
section 1.
Interpretation
4. Primary legislation and subordinate legislation, whenever enacted, must be read
and given effect in a way which is compatible with section 1, even where that
involves disapplying incompatible legislation.
5. In section 3 public authority includes

(a) a court or tribunal, and


(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in
connection with proceedings in Parliament.
6. In section 5 Parliament does not include the House of Lords in its judicial
capacity.
7. In relation to a particular act, a person is not a public authority by virtue only of
subsection 5(b) if the nature of the act is private.
8. An act includes a failure to act but does not include a failure to

(a) introduce in, or lay before, Parliament a proposal for legislation; or


(b) make any primary legislation or remedial order.

This model which follows, in part, that adopted by the HRA, would have the effect
that Parliament is not boundit could make incompatible legislation (see s.5) but
importantly (unlike in the case of the HRA) it would require courts and tribunals
to interpret all legislationwhenever enactedcompatibly, whether or not that was
possible, including by disapplying an incompatible provision. This would mirror the
impact of s.2 of the European Communities Act 1972 where legislation is incompatible
with EU law (see, for example, Alabaster v Barclays Bank Plc and Secretary of State
for Social Security (No.2)19 ). To avoid having incompatible legislation interpreted
compatibly/disapplied, in a particular case, Parliament would have to repeal or
expressly exclude these equality provisions. This might be politically difficult (as is
seen in the case of the HRA). This model would therefore help entrench equality rights
without a full Bill of Rights.
A constitutionalised equality guarantee of this sort would bring considerable value.
Presently our existing anti-discrimination laws outlaw (certain forms of) discrimination

19
[2005] EWCA Civ 508; [2005] I.R.L.R. 576 (in which comparator provisions of the Equal Pay
Act 1970 were disapplied as incompatible with directly effective provisions of the EC Treaty);
see also Marshall v Southampton and South-West Hampshire Area Health Authority (No.2) (C-271/91)
[1993] I.C.R. 893 (domestic provisions which are incompatible with a directly effective Directive
provision must be set aside in an action against the state).
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Article Karon Monaghan 27

by public authorities in the exercising of their functions.20 Whilst these provisions21 go


some way to outlawing discrimination by the state and mainstreaming equality norms,
there are numerous exceptions and limitations contained within the anti-discrimination
legislation and importantly these provisions have no special constitutional status.
Indeed, these provisions are sometimes subordinated to other mandatory legal
measures.22

Protocol No.12/Human Rights Act model

An equality guarantee with some constitutional status would also be available by


extending the protection of the HRA. The effect of the incorporation of Art.14 of the
European Convention on Human Rights (ECHR) into domestic law, by Sch.1 to the
HRA, is such that the courts are already being required to formulate concepts of
discrimination appropriate for application at a constitutional level and to scrutinise
and declare legislation compatible or incompatible with these.23 However, as is well
known, Art.14 has a fairly narrow reach. Its application depends upon the activity
concerned falling within the ambit of one of the other Convention rights and this can
prove problematical.24
A model for a more free standing equality before the law/equal protection guarantee
can be found in Protocol No.12 (ECHR):

1 The enjoyment of any right set forth by law shall be secured without
discrimination on any grounds such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national
minority, property, birth or other status.
2 No one shall be discriminated against by any public authority on any grounds
such as those mentioned in paragraph 1.

The Protocol does not refer to equal protection as such but the preamble describes as a
relevant context for the Protocols substantive provisions: the fundamental principle
according to which all persons are equal before the law and are entitled to the equal
protection of the law. As the explanatory report makes clear, whilst the:

20
Race Relations Act 1976 s.19B; Sex Discrimination Act 1976 s.21A; Disability Discrimination
Act 1995 s.21B; Equality Act 2006 s.52; Equality Act (Sexual Orientation) Regulations 2007 reg.8.
And, of course, outlaw discrimination by public authorities in the context of employment,
education and the provision of goods, facilities and services.
21
Along with the statutory equality duties: Race Relations Act 1976 s.71; Sex Discrimination
Act 1975 s.76A; Disability Discrimination Act 1995 s.49A.
22
Sex Discrimination Act 1976 s.51A; Race Relations Act 1976 s.41; Disability Discrimination
Act 1995 s.59; Equality Act 2006 s.56.
23
See, e.g. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68
and, for a recent example see R. (on the application of the Christian Institute) v Office of the First
Minister and Deputy First Minister [2007] NIQB 66, on the enactment of the Equality Act (Sexual
Orientation) Regulations (Northern Ireland) 2006 (SR 2006/439).
24
M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 A.C. 91.
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28 Constitutionalising Equality: New Horizons

[E]quality principle does not appear explicitly in the text of either Article 14
of the Convention or Article 1 of this Protocol, it should be noted that the non
discrimination and equality principles are closely intertwined.25

It is intended that the substantive provisions of the Protocol will cover discrimination
in four situations:
i. In the enjoyment of any right specifically granted to an individual under
national law;
ii. in the enjoyment of a right which may be inferred from a clear obligation of a
public authority under national law, that is, where a public authority is under
an obligation under national law to behave in a particular manner;
iii. by a public authority in the exercise of discretionary power (for example,
granting certain subsidies);
iv. by any other act or omission by a public authority (for example, the behaviour
of law enforcement officers when controlling a riot).26

The incorporation of Protocol No.12 would, therefore, provide for a more significant
equality guarantee than that found in Art.14 and adding it to Sch.1 to the HRA would
give it some constitutional status. However, the Government has indicated that it has
no intention of signing and ratifying it. It has said:

The Government are in principle in favour of extending Article 14 of the


European Convention on Human Rights to provide a free-standing right against
discrimination. But we consider that the text of Protocol 12 is too general and
open-ended. In particular, it does not make clear whether rights set forth by law
include international as well as national law; it does not make provision for positive
measures; and it does not follow the case law of the European Court of Human
Rights in allowing objective and reasonably justified distinctions.27

There are serious criticisms that can be made at least of parts of this analysis.28
Nevertheless, there are significant limitations in para.1 of the Protocol. First, the
protection extends only to any rights set forth by law and this will be problematical.
It means that some existing law or right must be found before the equality guarantee
will be applicable. Secondly, the prescribed guaranteethat the enjoyment of any
right is to be secured without discriminationis limited and raises the spectre that
Protocol No.12 will be interpreted in the same limited way as occurred in certain of
the Canadian cases prior to the Canadian Human Rights Act. In the cases of Attorney
General v Lavell29 and Bliss v Attorney General30 it was held that the fact that the legal

25
Explanatory report, para.15, at http://conventions.coe.int/Treaty/EN/Reports/Html/177.htm
[Accessed December 19, 2007].
26
Explanatory report, para.22.
27
Lord Bassam of Brighton, Hansard, HL col.WA37 (October 11, 2000).
28
For a critique of the reasons given by the Government for not ratifying Protocol No.12 see
(2002) 105 Equal Opportunities Review 21.
29
[1974] S.C.R. 1349.
30
[1979] 1 S.C.R. 183.
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Article Karon Monaghan 29

measure under challenge applied equally to all of those to whom it was directed meant
that it did not violate the Canadian Bill of Rights which provided for (as was material)
equality before the law. This resulted in a revised equality guarantee in s.15 of the
Canadian Charter of Rights and Freedoms containing a provision guaranteeing equality
before and under the law and equal protection and equal benefit of the law. However,
Protocol No.12 does not go so wide.
Nevertheless, whilst providing more limited protection than that seen in other
constitutional guarantees, incorporating Protocol No.12, in particular into the HRA,
would fill certain of the gaps left by the absence of a constitutional equality guarantee.
Such would include a right to the equal enjoyment of any existing laws explicitly enacted
or implied and a broad prohibition of discrimination by public authorities (without
limit or exception, save as inherent in the meaning to be given to discrimination, namely
where justified).
Scheduling Protocol No.12 to the HRA could also be done very easily, by a simple
amendment to the HRA, by order under s.1(4) of the HRA (assuming signature and
ratification).

Exceptions for acts done under statutory authority

Some greater (albeit limited) constitutional force could be afforded to our existing
anti-discrimination schemes by simply removing the provisions which subordinate
the anti-discrimination legislation to other statutory measures and replacing them
with provision prioritising the anti-discrimination enactments. Section 41 of the Race
Relations Act 1976, for example, provides that:

(1) Nothing in parts 24 [which create the unlawful acts] shall render unlawful
any acts of discrimination done:

(a) in pursuance of any enactment or order in council or


(b) in pursuance of any instrument made under any enactment by a minister of
the Crown; or
(c) in order to comply with any condition or requirements imposed by a minister
of the Crown (whether before or after the passing of this Act) by virtue of any
enactment.

References in this section to an enactment, order in council or instrument include


an enactment, order in council or instrument past or made after the passing of this
Act.

There are limitations to this rather wide exemption, introduced by amendments and case
law.31 However, in broad terms this provision, along with analogue provisions in the
Sex Discrimination Act 1975, the Disability Discrimination Act 1995 and the Equality Act

31
See, e.g. s.41(1A) which limits the application of this exemption to acts falling outside
the scope of Directive 2000/43 implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin [2000] OJ L180/22 and see Hampson v Department of Education
and Science [1991] 1 A.C. 171.
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30 Constitutionalising Equality: New Horizons

2006, subordinates the anti-discrimination legislation to mandatory statutory measures


(at least in respect of activities falling outside the scope of EU law). Repealing
these provisions would at least ensure that the anti-discrimination legislation was
not necessarily subordinated in respect of legislation whenever enacted.32 Replacing
these provisions with provisions prioritising the anti-discrimination legislation unless
expressly overruled would ensure that the anti-discrimination legislation had some
special, albeit limited, constitutional status.

Underpinning principles: introduction33


As mentioned above, it was expected that the Discrimination Law Review34 would
consider the fundamental principles and underlying concepts of any new anti-
discrimination scheme. The Green Paper35 did not explore these issues. However,
the debate is still alive and responses to the Green Paper are engaging in a discussion
about the underpinning principles into which any new equality legislation should be
rooted.36 As to what principles should underpin any equality guarantee, whether within
a Single Equality Act or in any constitutional instrument, this requires consideration of
what it is expected or hoped these measures will achieve. Early on in the life of the race
discrimination legislation its role was described as follows:

A law is an unequivocal declaration of public policy.


A law gives support to those who do not wish to discriminate, but who feel
compelled to do so by social pressure.
A law gives protection and redress to minority groups.
A law thus provides for the peaceful and orderly adjustment of grievances and
the release of tensions.37
These purposes are normativethat is, they recognise that our anti-discrimination
laws are important as much for their declaratory status, and effect therefore on
cultural change, as their remedial impact. But as to the fundamental underpinning
principles, these can be difficult to discern. The present anti-discrimination scheme
is, with the exception of the Disability Discrimination Act 1995, symmetrical in
applicationprotecting all in possession of a gender or racial characteristic, etc.

32
Absent any constitutionalised status in the anti-discrimination enactments, the doctrine of
implied repeal may nevertheless subordinate its provisions to later inconsistent acts: F. Bennion,
Statutory Interpretation, 4th edn (Butterworths, 2002), ss.87 and 287.
33
See for further discussion, European Human Rights Law Review, [2006] Issue 6, devoted to the
issue of equality.
34
See Joint DTI and Cabinet Office Release and Discrimination Law Review: Terms of
Reference.
35
Discrimination Law Review Consultation Paper (June 2007).
36
Equality and Human Rights: Response to the Discrimination Law Review, A Framework for Fairness:
Proposals for New Equality Bill for Great Britain (Equality and Human Rights Commission, 2007);
Libertys response to the Communities and Local Government Review: Discrimination Law Review: A
Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, A Consultation Paper
(Liberty, September 2007).
37
Report of the Race Relations Board (HMSO, 1967).
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Article Karon Monaghan 31

with equal vigourand so the opportunities for practical positive action directed
at ameliorating disadvantage associated with membership of a particular class are
limited.38
Any discussion around underpinning principles must consider what is meant by the
concept of equality to which it is assumed a new equality measure will aspire. The
equality ideal is one of the most fundamental aspirations of liberal democracies and
is reflected in most human rights instruments. However, the concept and the concrete
aspirations it fuels are not easy to articulate. As has been observed in relation to s.15 of
the Canadian Charter:

Section 15 of the Charter guarantees to every individual the right to equal treatment
by the state without discrimination. It is perhaps the Charters most conceptually
difficult provision. In this Courts first s. 15 case, Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R 143, at p. 164, McIntyre J. noted that, as embodied in s.
15(1) of the Charter, the concept of equality is an elusive concept, and that more
than any of the other rights and freedoms guaranteed in the Charter, it lacks precise
definition. Part of the difficulty in defining the concept of equality stems from
its exalted status. The quest for equality expresses some of humanitys highest
ideals and aspirations, which are by their nature abstract and subject to differing
articulations. The challenge for the judiciary in interpreting and applying s. 15(1)
of the Charter is to transform these ideals and aspirations into practice in a manner
which is meaningful to Canadians and which accords with the purpose of the
provision.39

The ideals and aspirations an equality guarantee expresses are not always the same or
similarly understood. Equality as an ideal has come to mean different things to different
people. At its most basic, the concept of equality might be seen to embrace only the
Aristotelian notion that likes should be treated alike. Such an approach, however, (of
which no doubt Aristotle himself would have approved40 ) can entrench discrimination
because of the threshold it setswomen are, in some respects, not like men; gay men
are, in some respects, not like straight men. Where difference related to gender, race, etc.
can justify inequality there is no equality at all.
Defining a concept of equality depends upon the aims sought to be realised by
embracing it and this is a political question. However, a number of different aims have
been identified in the equality discourse. These include:

Equal treatment: Such an approach is concerned to afford the same treatment


to like cases and this approach informed the early anti-discrimination laws and
the formulation of direct discrimination. It is an important aim but inadequate

38
See Sex Discrimination Act 1975 ss.42A, 4749; Race Relations Act 1976 ss.3538; Employment
Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) reg.25; Employment Equality (Sexual
Orientation) Regulations 2003 (SI 2003/1661) reg.26, for very limited positive action measures.
39
Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.
40
As has been regularly observed, Aristotle found no conceptual difficulty in justifying the
subordination of women or slavery.
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32 Constitutionalising Equality: New Horizons

by itself to address disadvantage (and, for reasons given above, may frustrate
the achievement of substantive equality).
Equal opportunity: Such an approach is concerned to equalise the starting
point41 and so recognises that existing disadvantage has the effect that merely
treating people in the same way will not achieve equality. This has driven the
indirect discrimination model. It is an important aim but inadequate by itself
to address disadvantage. This is because, as has been famously said, it is not
enough to open the gates of opportunity. All our citizens must have the ability
to walk through those gates.42 Indirect discrimination has not worked to tackle
disadvantage partly because the justification defence allows for dominant
interests to prevail.
Matching a business case and merit: Such an approach requires that
individuals are treated according to their merit and not according to their
status or group membership and that has in recent years formed part of
a business case for equality. It holds that equality policies and laws bring
efficiency and productivity by facilitating recruitment on merit rather than on
the basis of prejudice.43 It is again an important aim, but again inadequate
by itself to address disadvantage. This is because, first, merit concepts may
be underpinned by discriminatory assumptions; secondly, it does nothing to
address the position of people who do not qualify on a merit assessment because
of entrenched social disadvantage or physical characteristics such as pregnancy
or disability; and thirdly, a focus on merit assumes that the individual should
fit the job, rather than that the job should be adjusted to fit the worker.44
Respecting diversity: Such an approach is sometimes argued as part of a
business case45 and sometimes a human rights case. The business case
says that diversity should be strived for because of the benefits it brings to
business through the breadth of experience thereby obtained. The business
case is uncertain, however: first, there may not be a business case in certain
situations and secondly, such may have the effect of entrenching stereotyping
(by assuming persons possessing certain characteristics all bring something by
reason of those characteristics). The human rights case holds that we should
respect all humanity in its diversity. The human rights case might be regarded
as a more certain foundation for a concept of equality which promotes and
embraces diversity.
Respect for dignity: Such an approach holds that all people have value deriving
from their status as human beings. It ensures that equality has a universal
application46 and is reflected in most human rights instruments. Thus: Since
all persons are entitled to human dignity and freedom and to that extent
are equal, the principle of equal treatment is an obvious postulate for free

41
S. Fredman, The Future of Equality in Britain, Working Paper Series No.5 (Equal
Opportunities Commission, 2002), p.5.
42
President Lyndon Johnson, cited in Fredman, The Future of Equality in Britain, p.6, fn.42.
43
Fredman, The Future of Equality in Britain, p.7.
44
Fredman, The Future of Equality in Britain, p.8.
45
Fredman, The Future of Equality in Britain, pp.910.
46
S. Fredman, Discrimination Law (OUP, 2002), p.17.
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Article Karon Monaghan 33

democracy.47 Dignity introduces substantive protectionit does not allow


for a levelling down (i.e. no discrimination if all treated equally badly48 ). It
provides a principled basis for determining who should be protecteda dignity
model will protect a person or group of persons if the distinction complained
of is based on attributes or characteristics that objectively have the potential to
impair the fundamental human dignity of persons as human beings.49 Dignity
is discussed further below but it is increasingly now recognised that it is a
helpful way to address inequality in a diverse community, with the potential to
protect all against arbitrary interferencesrecognising as it does the inherent
value deriving from our status as human beingsand accommodating and
addressing disadvantage.
Participation: Such an approach holds that democracy requires the full
participation and inclusion of everyone, including minorities (measured
numerically and by the distribution of power), in all important social and
political institutions. It is seen referred to in the the most celebrated footnote
in constitutional law50 :
. . . [P]rejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may
call for a correspondingly more searching judicial inquiry. . .51

This addresses what would otherwise be lacking in a majoritarian democracy.


Democracy is already seen as an important basis for discerning the scope of
discrimination law (in the human rights context) in domestic law:

. . . [I]t is a purpose of all human rights instruments to secure the protection


of the essential rights of members of minority groups, even when they are
unpopular with the majority. Democracy values everyone equally even if
the majority does not.52

Redistributive/social justice: Such an approach is not just concerned with


addressing disadvantage but also aims to achieve equal distribution; social
justice requires the morally proper distribution of social benefits and burdens
among societys members.53 There is an overlap between such a driver and

47
Communist Party 5 BverfGE 85 (1956), cited in Fredman, Discrimination Law, p.18, fn.47.
48
A thesis which underpins the UKs anti-discrimination legislation with its emphasis on
comparative less favourable treatment, aside from that addressing disability: Pearce v Governing Body
of Mayfield School [2003] UKHL 34; [2003] I.R.L.R. 512.
49
L.W.H. Ackermann, Equality and the South African Constitution: The Role of Dignity,
Bram Fischer Lecture (2000), cited in Fredman, Discrimination Law, p.18, fn.47.
50
L. Powell Carolene Products Revisited (1982) 82 Columbia Law Review 1087, cited in Stone
et al., Constitutional Law, 4th edn (2001), p.507.
51
United States v Carolene Products Co 304 U.S. 144 (1938), available at http://laws.findlaw.com/
us/304/144.html [Accessed December 19, 2007].
52
Per Baroness Hale, Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557 at [132].
53
L.M. Young, Justice and the politics of Difference (Princeton University Press, 1990), p.16, cited
in Fredman, Discrimination Law, p.18, fn.47.
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34 Constitutionalising Equality: New Horizons

the participative aims described above. The aim of all anti-discrimination


schemes is to an extent driven by a commitment to social justice but that
only truly works as an aim if that which is to be distributed is identified and
measures taken to support fair distribution are taken. In the context of economic
redistribution/social justice, an example in anti-discrimination legislation can
be seen in Northern Ireland and the requirements of the Fair Employment and
Treatment Order 1998.54 Such measures can also be seen in the positive action
obligations in South African and Canadian law working as part of an overall
equality scheme.

Each of these aims, if alone entrenched in legislation, would probably not be adequate
to meet the aspirations of a modern liberal democracy. A fully functional equality
scheme would reflect them all and the most advanced models (in South Africa and
Canada) contain elements which promote each of these aims through individual rights,
reasonable accommodation obligations, affirmative action and participation and fair
representation measures. In the United Kingdom each of the aims identified above
have been progressively incorporated into legislation directed at equality, starting with
the equal treatment guarantees which led to legislation abolishing legally entrenched
differences between the sexes and races (by, for example, the extension of the franchise
to women and the abolition of slavery); moving to equal opportunity and merit
laws (seen in the Race Relations Acts55 and then the Sex Discrimination Act 1975).
Diversity has been further embraced by indirect discrimination guarantees and,
more particularly, a reasonable accommodation model (in the Disability Discrimination
Act 1995). As is well known, participation/fair representation measures have been
successfully enacted in Northern Ireland and there is no obvious reason to assume they
could not be successful elsewhere in the United Kingdom, in relation to limited classes
at least (defined by race and gender, for example).
Sandra Fredman has argued that:

. . .[E]quality ought to encompass four central aims. First, it should break the cycle
of disadvantage associated with out-groups. Second, it should promote respect
for the equal dignity and worth of all, thereby redressing stigma, stereotyping,
humiliation and violence because of membership of an out-group. Third, it should
entail positive affirmation and celebration of identity within community, and,
finally, it should facilitate full participation in society.56

This may help as a working set of aims. They promote social justice and inclusiveness.

54
SI 1998/3162, amended by SR 2003/520. Article 55: (1) In the case of each registered
concern, the employer shall from time to time review the composition of those employed in and
ceasing to be employed in the concern in Northern Ireland and the employment practices of the
concern for the purposes of determining whether members of each community are enjoying, and
are likely to continue to enjoy, fair participation in employment in the concern. (2) In a case where
it appears to the employer in the course of the review that members of a particular community
are not enjoying, or are not likely to continue to enjoy, such participation, he shall as part of the
review determine the affirmative action (if any) which would be reasonable and appropriate.
55
1965, 1968 and 1976.
56
Fredman, The Future of Equality in Britain, p.10, fn.42.
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Article Karon Monaghan 35

Dignity/disadvantage
Many jurisdictions now embrace, more or less, a substantive approach to addressing
equality, embracing diversity and accommodating and tackling disadvantage, through
models underpinned by respect for dignity and the recognition of disadvantage,
reflecting the aims described above.
At constitutional level, in South Africa, for example, the test of unfair discrimination
includes an analysis of:

past patterns of discrimination and disadvantage;


the purpose of the discriminatory measure complained of (and whether it is
intended to achieve a worthwhile societal goal, such as furthering the right to
equality);
the extent to which the discrimination has affected the complainants rights
or interests and whether it has led to an impairment of the complainants
fundamental human dignity or constitutes an impairment of comparably serious
nature.57
Similarly, in Canada the equality guarantee in s.15(1) of the Charter must be understood,
according to the case law, as protecting and promoting human dignity [and that] infuses
all elements of the discrimination analysis.58 Four factors may indicate a violation of
human dignity and discrimination for the purposes of s.15(1) of the Charter:

pre-existing disadvantage;
correlation (or lack of it) between the grounds of the claim and the actual needs,
capacities, and circumstances of the claimant;
the ameliorative purpose or effect of the law on historically disadvantaged
groups; and
the nature and scope of any interest affected.59

The statutory measures in South Africa and Canada reflect the dignity/disadvantage
models contained within the jurisprudence of the constitutional courts. In determining
the unfairness of any alleged discrimination, South Africas Promotion of Equality
and Prevention of Unfair Discrimination Act requires that the following features be
taken into account:
(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from
patterns of disadvantage or belongs to a group that suffers from such patterns
of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;

57
President of South Africa v Hugo 1997 (4) SA 1 (CC).
58
Law v Canada [1999] 1 S.C.R. 497 at [51][54].
59
Law v Canada [1999] 1 S.C.R. 497 at [62][75], per Iacobucci. See also Egan v Canada [1995] 2
S.C.R. 513 at 544545, per LHeureux-Dube J.
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36 Constitutionalising Equality: New Horizons

(f) whether the discrimination has a legitimate purpose;


(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve
the purpose;
(i) whether and to what extent the respondent has taken such steps as being
reasonable in the circumstances to

(i) address the disadvantage which arises from or is related to one or more
of the prohibited grounds; or
(ii) accommodate diversity.

The fact that both the Canadian and South African models adopt a concept of
discrimination which features disadvantage means that they have moved away from
a principally symmetrical approach. This might be contrasted with the position in UK
law which, as mentioned above, focuses on sameness or likeness of treatment60 ;
and is symmetrical in protecting members of all groups without regard to whether
any measure or act under challenge undermines dignity or aggravates disadvantage.
Recognising the dignity inherent in all of us by virtue of our status as human
beings, ensures that everybody is treated as having value or worth, whoever they are,
and:

embraces and respects diversity;


eschews arbitrary distinctions;
provides a mechanism for managing conflicts between rights.

A dignity model acknowledges prejudice, stereotyping, marginalisation and acknowl-


edges an entitlement to personal development and the right to fair participation,
forging a link between dignity and autonomy,61 and provides a principled basis for pos-
itive action/reasonable accommodations. In this way it fits comfortably withand
embracesthe recognition of pre-existing disadvantage. The rights of others are
acknowledged so that:

While no right can be regarded as absolute, a natural corollary to the recognition


of a right must be the social acceptance of a general duty to respect and to act within
reason to protect it. In any society the rights of one will inevitably come into conflict
with the rights of others. It is obvious then that all rights must be limited in the
interest of preserving a social structure in which each right may receive protection
without undue interference with others.62

60
There are exceptions. The indirect discrimination provisions go some waybut because of
their complexity and limit of reach not very farin tackling group disadvantage and there are
some very limited positive action provisions which have had almost no effect in tackling group
disadvantage.
61
See discussion in D. Reaume, Discrimination and Dignity (2003) 63 Louisiana Law Review
645 at p.648 , reprinted in C. McCrudden, Anti-Discrimination Law, 2nd edn (International Library
of Essays in Law and Legal Theory, Second series, 2003), p.248, particularly at p.275.
62
OMalley v Simpsons-Sears [1985] 2 S.C.R. 536.
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A dignity threshold or framework is not alien to Great Britain (including in its


discrimination law). It forms part of our existing anti-discrimination scheme, emerging
both from the case law63 and the statutory protections64 found in the anti-discrimination
scheme. Its focus is narrow (its application has been limited to the harassment sphere)
and its wider use would require a revisiting of the main provisions of the anti-
discrimination legislation. However, as mentioned, its use in Great Britain in the
anti-discrimination context would not be unprecedented and there are models from
other jurisdictions demonstrating how a dignity framework might be incorporated into
an anti-discrimination scheme (South Africa in particular).
A dignity model would give effect to the EU Charter of Fundamental Rights, which in
its preamble declares that the European Union is founded on the indivisible, universal
values of human dignity, freedom, equality and solidarity and devotes the whole of the
first chapter to dignity, providing that human dignity is enviable. It must be respected
and protected.65
As mentioned, respecting dignity has the important effect of underpinning equality,
making it impossible to argue that a levelling down is as good as one that levels
up.66 It also does not depend upon matching the abilities or situation of another but
accords respect irrespective of place.
A dignity model may contextualise and formulate the grounds protected (as in
South Africa and Canada). Experience in other jurisdictions suggests that there is no
inherent friction between a dignity and grounds-based model and such will permit
intersectional/multiple discrimination claims.
Importantly, a dignity/disadvantage approach would fit with the concerns of the
Equalities Review67 to ensure that there was some substantive measure of equality. The
Equalities Review highlighted the need for an accepted definition of equality, noting
that their preferred:

. . . [D]efinition represents the first building block of a new framework for the
measurement of inequality. Such a framework is essential to:

understand the drivers of inequality;


assess the extent of inequality in our society;
set out priorities for action to redress inequality; and
indicate possible ways of intervention to redress inequalities.68

63
See, e.g. Burton v De Vere Hotels Ltd [1996] I.R.L.R. 596; Insitu Cleaning Co v Heads [1995]
I.R.L.R. 4, amongst others, citing with approval Recommendation 92/131 OJ L49, 24.2.92, p.1 on
the protection of the dignity of women and men at work.
64
See the harassment provisions in the Sex Discrimination Act 1975, Race Relations Act 1976
and the Disability Discrimination Act 1995 amongst others.
65
Charter of Fundamental Rights Art.1.
66
Charter of Fundamental Rights Art.45.
67
Fairness and Freedom: The Final Report of the Equalities Review (2007), http://archive.cabinetoffice.gov.uk/
equalitiesreview/publications.html [Accessed December 19, 2007].
68
Fairness and Freedom: The Final Report of the Equalities Review (2007), p.125.
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38 Constitutionalising Equality: New Horizons

The Equalities Review recommended that a definition of equality should be based on the
capabilities approach.69 This approach measures equality and inequality by reference
to a persons capability to enjoy certain freedoms, so that a capabilities approach adopts:

[A] version of equality of opportunity which focuses less on the assets of an


individual . . . or special characteristics such as gender or race, and concentrates
more on what people are able to do or be in their lives.70

Though this model might be controversial as providing the only basis for determining
a concept of equality, it does at least demand that there be some substantive content to
such a concept and accordingly fits with a dignity/disadvantage model.

Reflecting fundamental principles in legislation


There is an increasing consensus that the fundamental underpinning principles of any
constitutional equality measure or legislative scheme should be recorded in a purpose
clause.71 This would ensure that any equality measures are interpreted in a way
which respects and promotes those principles. There has been significant discussion
already about the contents of any such purpose clause, including by the legacy
Commissions.72 A purpose clause in UK anti-discrimination legislation would be
unprecedented. However, there are already provisions identifying the general duties or
obligations imposed, for example, on the statutory Commissions73 which give a clue to
the purpose of the legislation overall. The Equality Act 2006 identifies the duties of the
Equality and Human Rights Commission in broad and purposive terms, as follows:

The Commission shall exercise its functions under this Part with a view to
encouraging and supporting the development of a society in which

(a) peoples ability to achieve their potential is not limited by prejudice or


discrimination,
(b) there is respect for and protection of each individuals human rights,
(c) there is respect for the dignity and worth of each individual,
(d) each individual has an equal opportunity to participate in society, and
(e) there is mutual respect between groups based on understanding and valuing
of diversity and on shared respect for equality and human rights.

69
An approach developed by Sen, Nussbaum and others, principally as a means of measuring
development in underdeveloped countries.
70
The Equalities Review: Interim Report for Consultation (2006), pp.7374.
71
See the paper produced by the legacy Commissions (the Equal Opportunities Commission;
the Commission for Racial Equality and the Disability Rights Commission): Purpose and
Principles for a Single Equality Act, at http://www.equalityhumanrights.com/Documents/EOC/DOC/
Policy/InformationandAdvice Equality Adviser Booklet equalityactclause.rtf [Accessed December 19,
2007].
72
Equal Opportunities Commission, Commission for Racial Equality and Disability Rights
Commission.
73
See, e.g. Sex Discrimination Act 1975 s.53, Race Relations Act 1976 s.43, Disability Rights
Commission Act 1999 s.2(1) and Equality Act 2006 ss.3 and 8.
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Article Karon Monaghan 39
...
The Commission shall, by exercising the powers conferred by this Part

(a) promote understanding of the importance of equality and diversity,


(b) encourage good practice in relation to equality and diversity,
(c) promote equality of opportunity,
(d) promote awareness and understanding of rights under the equality enactments,
(e) enforce the equality enactments,
(f) work towards the elimination of unlawful discrimination, and
(g) work towards the elimination of unlawful harassment.

(2) . . .
diversity means the fact that individuals are different,
equality means equality between individuals.74

The existing anti-discrimination legislation, however, does not define its own purpose.
The nearest it gets to so doing is by the long titles of each of the main anti-
discrimination enactments, but these give little clue to the objectives of the legislation
or the underpinning principles.75
Whilst rare, there is, however, some precedent for the inclusion of purpose or
object clauses in UK legislation more broadly.76 Reflecting the values described
above, a purpose clause and long title in any Single Equality Act might read as follows:

This Act aims to promote a society based on democratic values, united in its
diversity, marked by human relations that are caring and compassionate, and
guided by the principles of equality, fairness, equity, social progress, justice,
human dignity and freedom.
(1) The purposes of this Act are

(a) to secure the equal enjoyment of all rights and freedoms by every person;
(b) the promotion of equality;
(c) to secure full equality in practice and promote the social inclusion of individuals
and groups by,

(i) eliminating and preventing patterns of systemic discrimination and


inequality; and
(ii) the adoption of measures to alleviate disadvantage related to colour, race,
nationality, ethnic or national or social origins, gender, sex, pregnancy,

74
Equality Act 2006 ss.3 and 8.
75
In the case of the Sex Discrimination Act 1975, for example, the long title reads An act
to render unlawful certain kinds of sex discrimination and discrimination on the grounds of
marriage, and establish a commission with the function of working towards the elimination of
such discrimination and promoting equality of opportunity between men and women generally;
and for related purposes.
76
Examples can be seen in Health and Safety at Work, etc. Act 1974 s.1 and Income and
Corporation Taxes Act 1988 s.488(1).
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40 Constitutionalising Equality: New Horizons

marital status, sexual orientation, disability, religion, conscience, belief,


culture, age, language and birth, singly or in any combination;

(d) the prevention of discrimination;


(e) the protection of respect for the dignity and worth of each individual and the
right of each individual to have an equal opportunity to participate in society;
(f) to promote good relations between individuals and groups.
(g) to provide for measures to facilitate the eradication of discrimination and
harassment;
(h) to provide for measures to educate the public and raise public awareness
on the importance of promoting equality and overcoming discrimination and
harassment;
(i) to provide remedies for victims of discrimination, harassment and persons
whose right to equality has been infringed;
(j) to set out measures to ameliorate the disadvantage experienced by some
individuals and groups by the taking of positive action.
(k) to facilitate further compliance with international law obligations including
treaty obligations in, amongst others, the Convention on the Elimination of
All Forms of Racial Discrimination, the Convention on the Elimination of All
Forms of Discrimination against Women and the Convention on the Rights of
Persons with Disabilities.

Fundamental principles and positive action and duties


This article does not examine the various positive action models that might be adopted.
However, importantly as can be seen from above, a dignity/disadvantage model
accommodates and may require positive measures. Affirmative action is a composite
part of the equality guarantee in the South African constitution77 and in Canada
ameliorative programmes are embraced by the equality guarantee.78 In Canada, s.15
may require accommodations to be made.79 The Canadian Human Rights Act 1977
permits positive measures. It also incorporates a concept of discrimination that embraces
a duty to accommodate, operationalised where a rule has an adverse impact on a
protected group.
The requirement to take ameliorative measures fits comfortably too with compelling
statutory duties to achieve equality.80 A purpose clause or interpretation clause could

77
Minister of Finance v Frederik Jacobus Van Heerden CCT 63/03.
78
Lovelace v Ontario [2000] S.C.C. 37.
79
Andrews v Law Society of British Columbia [1989] 1 S.C.R. 143 at 169, for the accommodation
of differences, which is the essence of true equality, it will frequently be necessary to make
distinctions.
80
In South Africa, for example, there are wide statutory duties on the public and private
sectors. There is an obligation on the state institutions to develop equality plansregulatory
mechanisms for the effective promotion of equality (amongst other things)and obligations
on most public and private sector employers to prepare and employment employment equity
plans. And in Canada, for example, the duties to make accommodations in the Canadian Human
Rights Act incorporate an anticipatory obligation.
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Article Karon Monaghan 41

make it clear that the positive action provisions and equality duties must be read and
applied in a way which promotes the aims or fundamental principles underpinning the
legislation. An example might be as follows:

In interpreting and applying the provisions in Part X of this Act, the purposes set
out in out in section X shall be had regard to and to the extent possible, promoted.

Proportionality

Disproportionate obligations are unlikely to engender adequate community respect


and support, as will be necessary if they are to stand the test of time. The Better
Regulation Commission, for example, considers it important that any law reduce
unnecessary regulatory and administrative burdens; and ensure that regulation and
its enforcement are proportionate, accountable, consistent, transparent and targeted.81
Disproportionate, bureaucratic, process-driven laws that do not focus on outcome, that
is actually ameliorating disadvantage and securing equality, are unlikely to attract
sufficient support in the business and wider communities.
Adopting proportionality as an underpinning principle provides a framework for
testing whether any measure or action, even if unequal or discriminatory, is tolerable in a
democratic society and it will also help determine the appropriate extent of any positive
action/statutory equality duties and ensure that unnecessary burdens are not placed
upon those caught by the terms of an equality guarantee. Adopting a proportionality
test to achieve these ends would reflect the limits imposed in the context of other
fundamental rights (under the ECHR, most notably) and would be familiar to our
jurisdiction and recent juridical traditions.

Justiciability/enforceability

Those areas where modifications are not compelled by law have proved resistant to
change. Public transport remains largely inaccessible to disabled people, causing very
significant disadvantage82 . There remains a large gender pay gap83 in a context where
there is no duty to carry out any pay audits, identify pay differentials and address

81
http://www.brc.gov.uk/about us [Accessed December 19, 2007]. See also, the observations in Dr
Ravinder Singh Dhami, Professor Judith Squires and Professor Tariq Modood, Developing positive
action policies: learning from the experiences of Europe and North America (Department for Work and
Pensions, 2006).
82
See, e.g. Joint Committee on the Draft Disability Bill, First Report (May 2004), para.122,
http://www.publications.parliament.uk/pa/jt200304/jtselect/jtdisab/82/8206.htm [Accessed December
19, 2007]. Not properly transcribed in the report but see evidence from Leonard Cheshire,
Memorandum from Leonard Cheshire (DDB 11), http://www.publications.parliament.uk/pa/
jt200304/jtselect/jtdisab/82/82we06.htm [Accessed December 19, 2007]. And see, An Overview of
the Literature on Disability and Transport (Disability Rights Commission, 2003), http://83.137.212.42/
sitearchive/DRC/docs/10 498 DRCTransportLitreview.doc [Accessed December 19, 2007].
83
And indeed ethnic and disability pay gap: Fairness and Freedom: The Final Report of the
Equalities Review (2007).
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42 Constitutionalising Equality: New Horizons

them.84 Other examples can be found. Further, research undertaken on positive action
indicates that if positive action measures are to work, they must be properly enforceable:

In addition to being clearly and coherently explained and defended, positive action
policies need to be backed up by robust enforcement mechanisms if employers are
to comply. These should entail mandatory goal-setting and vigorous enforcement,
including sanctions (such as debarment), by government.85

Adopting justiciability/enforceability as underpinning principles will help ensure the


effectiveness of any new laws.

Conclusion
The absence of a comprehensive written constitution in Great Britain has so far
deprived those within its jurisdiction of a fully formed constitutional equality guarantee.
Constitutional law through the principle of legality has operated to guard against the
more repugnant instances of arbitrary treatment and makes all equally subject to law.
It also provides for some limited scrutiny of the acts of, especially, public authorities so
as to ensure that rationality is measured by, amongst other things, a requirement for
equal treatment.86 However, these guarantees focus on process rather than substance.
The traditional public law obligations manifested in these duties are not principally
concerned with the substantive content of law but rather guard against its wrongful
application.87 In the absence of a written constitutional equality guarantee, a principle
of equality has developed at common law88 but this is still no more than at embryonic
stage and its life is very much in danger.89
The opportunity now presents itself for making equality the bedrock of our
constitutional arrangements, either through a fully formed constitutional guarantee,

84
Fairness and Freedom: The Final Report of the Equalities Review (2007).
85
See also the observations in Dr Ravinder Singh Dhami, Professor Judith Squires and
Professor Tariq Modood, Developing positive action policies: learning from the experiences of Europe
and North America (Department for Work and Pensions, 2006), p.7.
86
Kruse v Johnson [1898] 2 Q.B. 91; Matadeen v Pointu [1999] 1 A.C. 98 at 109, per Lord Hoffmann.
See also Jowell, Is Equality a Constitutional Principle? [1994] 7 C.L.P. 1. For a discussion, see
P.G. Polyviou, The Equal Protection of the Laws (Duckworth, 1980), pp.124. Also the common
law regulated the obligations of innkeepers and common carriers and rendered void certain
discriminatory conditions on testamentary dispositions (A. Lester and G. Bindman, Race and Law
(Penguin, 1972), pp.6369) but these are of little contemporary relevance.
87
Jowell, in Is Equality a Constitutional Principle? [1994] 7 C.L.P. 1, 13 points to some
limited and exceptional case law indicating that a substantive equality scrutiny has taken place
in some older cases.
88
Jowell, Is Equality a Constitutional Principle? [1994] 7 C.L.P. 1, citing, amongst other
things, Kruse v Johnson [1898] 2 Q.B. 91; Ghaidan [2004] UKHL 30; [2004] 2 A.C. 557 at [132], per
Baroness Hale. See also Matadeen [1999] 1 A.C. 98, 109, per Lord Hoffman (giving judgment for
all their Lordships on the committee); A [2004] UKHL 56; [2005] 2 A.C. 68.
89
Secretary of State for Work and Pensions v M [2006] UKHL 11; [2006] 2 A.C. 91, see particularly
at [6], per Lord Bingham (though see also the convincing dissenting speech of Baroness Hale at
[113][114] in particular).
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Article Karon Monaghan 43

as part of any arrangements on the future governance of Britain more generally, or


through a constitutionalised Single Equality Act. Securing wide community support
for any such measures will require close consideration of the values and principles that
should underpin any such guarantee. To ensure they are properly respected they must
also be reflected explicitly in any preamble or purpose clause.

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The Right to Respect for Private Life in
the European Convention on Human
Rights: A Re-examination
N.A. Moreham*
Senior Lecturer, Victoria University of Wellington

Autonomy; Disclosure; European Court of Human Rights; Identity; Information;


Right to respect for private and family life

This article comprehensively analyses the jurisprudence of the European Court of Human
Rights in interpreting Art.8, the right to private life. The article identifies five sub-categories
of private life interest. First, three freedoms from: the right to be free from interference with
physical and psychological integrity, from unwanted access to and collection of information,
and from serious environmental pollution. Then there are the freedoms to: the right to be
free to develop ones personality and identity and to live ones life in the manner of ones
choosing.

Introduction

The influence of the European Convention on Human Rights (the Convention) right to
respect for private life on English law is universally acknowledged. Courts are obliged
to take into account the case law of the European Court of Human Rights (the Court)
when determining questions which arise in connection with the right to respect for
private life in the Human Rights Act 1998 (HRA)1 and along with the horizontal effect
of the HRA, Strasbourg jurisprudence provided the impetus for the development of the
breach of privacy/confidence tort. In fact, according to a recent decision of the Court of
Appeal, horizontal effect has developed to the point where:

*
This article is based loosely on a chapter of my doctoral thesis Privacy and the Common
Law held at the University Library, University of Cambridge (approved April 27, 2004). I would
like to thank Professor David Feldman, University of Cambridge; Mr Tony Weir, University
of Cambridge; and Ms Claudia Geiringer, Victoria University of Wellington, for their helpful
comments on earlier versions of this work. I take full responsibility for all content.
1
HRA s.2 provides that tribunals determining questions arising in connection with
Convention rights must take into account any relevant Strasbourg decision.
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Article N.A. Moreham 45

. . . [I]n order to find the rules of the English law of breach of confidence we now
have to look in the jurisprudence of articles 8 and 10. Those articles are now . . . the
very content of the domestic tort that the English court has to enforce.2

There is no doubt then that a sound understanding of the Courts application of the
Convention right to respect for private life is an essential prerequisite for a sound
understanding of the content of the right to privacy in domestic public and common
law.
Unfortunately, however, the Convention right to respect for private life is not easily
understood. The right is ill-defined and amorphous. The Court has acknowledged that
it extends beyond the right to privacy, the right to live, as far as one wishes, protected
from publicity,3 but has consistently declined to define it further. Instead, it insists that
it is a broad term not susceptible to exhaustive definition4 and repeats several broad
statements about the nature of the interest. Private life, it says, includes activities
of a professional or business nature,5 the right to establish and develop relationships
with other human beings and the outside world,6 a zone of interaction of a person
with others, even in a public context,7 the physical and psychological integrity of a
person,8 the right to . . . personal development, 9 and the right to establish details of
their identity as individual human beings.10 Interests as diverse as the right to live as
a gypsy, to change ones name and to be free from environmental pollution, as well as
more traditional privacy rights such as protection against dissemination of personal
information and images all fall within it.
The breadth of the private life interest, combined with the Courts reluctance to
identify either categories into which private life can be divided or specific principles
on which its decisions are based, makes it difficult to ascertain exactly what domestic
courts should be taking into account when developing domestic law. Which private

2
McKennitt v Ash [2006] EWCA Civ 1714; [2007] 3 W.L.R. 194 at [11]. I have criticised this
decision elsewhere (see N. Moreham, Privacy and Horizontality: Relegating the Common Law
(2007) 123 L.Q.R. 373).
3
X v Iceland (1976) 5 D. & R. 86 at 87.
4
Peck v United Kingdom (2003) 36 E.H.R.R. 41 at [57]. See also Niemietz v Germany (1992) 16
E.H.R.R. 97 at [29]; Pretty v United Kingdom (2002) 35 E.H.R.R. 1 at [61]; and PG and JH v United
Kingdom (App. No.44787/98), judgment of September 25, 2001 at [56].
5
Niemietz (1992) 16 E.H.R.R. 97 at [29]. See also Peck (2003) 36 E.H.R.R. 41 at [57]; Rotaru v
Romania (App. No.28341/95), judgment of May 4, 2000 at [43]; and Amann v Switzerland (2000) 30
E.H.R.R. 843 at [65].
6
Peck (2003) 36 E.H.R.R. 41 at [57]. See also X v Iceland (1976) 5 D. & R. 86 at 87; Rotaru (App.
No.28341/95), judgment of May 4, 2000 at [43]; and Amann (2000) 30 E.H.R.R. 843 at [65].
7
Peck (2003) 36 E.H.R.R. 41 at [57] and von Hannover v Germany (2005) 40 E.H.R.R. 1 at [50].
8
Pretty (2002) 35 E.H.R.R. 1 at [61].
9
Peck (2003) 36 E.H.R.R. 41 at [57]. See also X v Iceland (1976) 5 D. & R. 86 at 87.
10
Goodwin v United Kingdom (2002) 35 E.H.R.R. 18 at [90]. See also Pretty (2002) 35 E.H.R.R. 1 at
[61]. In a number of recent cases, the Court has also asked whether the applicant had a reasonable
expectation of protection of and respect for private life in the circumstances of the case (see,
e.g. Halford v United Kingdom (1997) 24 E.H.R.R. 523 at [45]; von Hannover (2005) 40 E.H.R.R. 1 at
[51]; Perry v United Kingdom (2004) 39 E.H.R.R. 3 at [37]; and Copland v United Kingdom (2007) 45
E.H.R.R. 37 at [42].
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46 The Right to Respect for Private Life in the European Convention on Human Rights

life cases should lawyers examine to find the rules of the English law of breach of
confidence and what exactly is the nature of the private life interest which the courts
have to take into account when applying Art.8 of the HRA? In the absence of a clear
articulation from Strasbourg of the overall shape of the private life interest, these
questions remain difficult to answer.
The aim of this article is to provide this shape by identifying from within the Art.8
jurisprudence unarticulated principles and categories on which the Court relies. The
article argues, in particular, that five sub-categories of private life interest can be
identified from within the Art.8 jurisprudence. First, there are the three freedoms
from rights (the first two of which correspond loosely with traditional private law
conceptions of privacy)the right to be free from interference with physical and
psychological integrity, from unwanted access to and collection of information, and from
serious environmental pollution. Then there are the freedoms tothe right to be free
to develop ones identity and to live ones life in the manner of ones choosing.11 These
categories reflect the Courts own observations about the scope of Art.8, but it is not
suggested that the Court itself has recognised this categorisation. Instead, the article
seeks to offers a fresh analysis of the Strasbourg jurisprudence in the hope that it will
make the private life case law more accessible to those seeking to apply it in the
English domestic context.

The structure of Article 8


Before examining each of the five categories, it is important to outline the structure of
Art.8 and the Courts approach to cases brought under it. Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.

The provision imposes two sorts of obligation: a negative obligation to avoid


interfering with any of the rights outlined in Art.8(1) unless the conditions in Art.8(2)
are satisfied and a positive obligation to take active steps to protect individuals
private lives, particularly against interference by others. The Courts approach to Art.8
cases depends on which kind of obligation is at stake.

Negative obligations

Where negative obligations are concerned, the Court asks two questions: has there been
an interference with one of the rights specified in Art.8(1) and if so, was the interference

11
There are parallels between this aspect of the interest and the autonomy-based US
constitutional right to privacy developed in cases such as Griswold v Connecticut 381 U.S.
479 (1965) and Roe v Wade 410 U.S. 113 (1973).
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Article N.A. Moreham 47

justified under Art.8(2)? Much of this article will be devoted to the scope of the private
life interest in Art.8(1), however Art.8(2) is also important. In order to satisfy Art.8(2),
the interfering measure must satisfy three requirements. First, it must be in accordance
with the law which means that the interference must have been made in accordance
with a national law12 which is compatible with the rule of law.13 The measure must
then be shown to have served one of the legitimate aims specified in Art.8(2); namely,
the interests of national security, public safety, economic well-being, the prevention of
disorder or crime or the protection of health, morals, or the rights and freedoms of
others.14 Thirdly, the measure must be necessary in a democratic society. This means
that there must be a pressing social need for the interference15 the establishment of
which will depend, inter alia, on whether the measure was proportionate.16 Member
States are accorded a margin of appreciation when determining what is necessary
in their particular societies.17 This margin is widely acknowledged to be difficult to
predict18 but the Court has consistently held that it will be narrower if the measure
interferes with a particularly intimate aspect of private life (such as ones sexuality),19

12
Law in this context includes judge-made or unwritten law (see, e.g. Sunday Times v United
Kingdom (1979) 2 E.H.R.R. 245 at [47] and Malone v United Kingdom (1984) 7 E.H.R.R. 14 at [66]), as
well as statutes (see Klass v Germany (1978) 2 E.H.R.R. 214 at [43]) and non-statutory regulations
(see, e.g. Golder v United Kingdom (197980) 1 E.H.R.R. 524 at [45]). However, it does not include
non-binding directions such as Home Office guidelines (Khan v United Kingdom (2001) 31 E.H.R.R.
45 at [27]).
13
This means that it must provide a measure of legal protection against arbitrary interference
by public authorities with the rights safeguarded by paragraph 1 of article 8 (Segerstedt-Wiberg v
Sweden (2007) 44 E.H.R.R. 2 at [76]).
14
The breadth of these aims makes this requirement easy to satisfy (see D. Harris, M. OBoyle
and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995),
p.290; R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford: OUP, 2000), para.6.145;
and C. Ovey and R. White, Jacobs & White: The European Convention on Human Rights 4th edn
(Oxford: OUP, 2006), p.226).
15
Dudgeon v United Kingdom (1981) 4 E.H.R.R. 149 at [51]. See also Handyside v United Kingdom
(1976) 1 E.H.R.R. 737 at [48] and Sunday Times (1979) 2 E.H.R.R. 245 at [59].
16
Proportionality is not expressly mentioned in the Convention but has been clearly recognised
in the case law (see, e.g. Handyside (1976) 1 E.H.R.R. 737 at [49] and Leander v Sweden (1987) 9
E.H.R.R. 433 at [58]). No clear conception of proportionality has emerged from the Convention
jurisprudence (see Clayton and Tomlinson, The Law of Human Rights, paras 6.436.48 and
H. Fenwick and G. Phillipson, Media Freedom under the Human Rights Act (Oxford: OUP, 2006),
pp.104106) but broadly speaking, the principle of proportionality means that there must be
a reasonable relationship between a particular objective to be achieved and the means used
to achieve that objective (see Halsburys Laws of England 4th edn, Vol.1(1) reissue (London:
Butterworths, 2001), para.88 and Clayton and Tomlinson, The Law of Human Rights, para.6.40).
17
Handyside (1976) 1 E.H.R.R. 737 at [48] and Sunday Times (1979) 2 E.H.R.R. 245 at [59]. See
also Art.1 of the Convention which provides that: The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
18
See, e.g. Clayton and Tomlinson, The Law of Human Rights, para.6.51; Jacobs and White: The
European Convention on Human Rights, pp.232233; N. Lavender, The Problem of the Margin of
Appreciation [1997] E.H.R.L.R. 380; and T. ODonnell, The Margin of Appreciation: Standards
in the Jurisprudence of the Court (1982) H.R.Q. 474, 495.
19
Dudgeon (1981) 4 E.H.R.R. 149 at [52] and Norris v Ireland (1989) 13 E.H.R.R. 186 at [46].
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48 The Right to Respect for Private Life in the European Convention on Human Rights

there is a European consensus on the issue in question,20 or the content of the aim in
question can be objectively ascertained,21 and broader if the decision bears on national
security,22 general social or economic policy,23 ethics or morality,24 or planning.25

Positive obligations

Member States also have a positive obligation to protect individuals private lives,
particularly against interference by others. This is because:

. . . [W]hile the essential object of Art.8 is to protect the individual against arbitrary
interference by the public authorities, it does not merely compel the State to abstain
from such interference: in addition to this negative undertaking, there may be
positive obligations inherent in an effective respect for private or family life. These
obligations may involve the adoption of measures designed to secure respect for
private life even in the sphere of relations of individuals between themselves.26

Unlike the negative obligation cases, the focus in positive obligation cases is not on the
precise requirements of Art.8(1) and (2) but on a broader inquiry into whether Art.8(1)
is applicable and whether a fair balance has been struck between the competing
interests involved in the case.27 The Court has however stressed that:
. . . [T]he boundaries between the States positive and negative obligations under
Art.8 do not lend themselves to precise definition. The applicable principles are
nonetheless similar. In determining whether or not such an obligation exists, regard
must be had to the fair balance which has to be struck between the general interest
and the interests of the individual; and in both contexts the State enjoys a certain
margin of appreciation.28

20
Dudgeon (1981) 4 E.H.R.R. 149 at [60]; Norris (1989) 13 E.H.R.R. 186 at [46] and Evans v United
Kingdom (App. No.6339/05), judgment of April 10, 2007 at [71].
21
See Sunday Times (1979) 2 E.H.R.R. 245 at [59] (the Court contrasted cases concerning morals
with those concerning the far more objective notion of the authority of the judiciary) and
Clayton and Tomlinson, The Law of Human Rights, para.6.52.
22
See Klass (1978) 2 E.H.R.R. 214 at [48][49] and Leander (1987) 9 E.H.R.R. 433 at [59].
23
See Connors v United Kingdom (2005) 40 E.H.R.R. 9 at [82] and Hatton v United Kingdom (2003)
37 E.H.R.R. 28 in which the Grand Chamber said that [i]n matters of general policy, on which
opinions within a democratic society may reasonably differ widely, the role of the domestic policy
maker should be given special weight (at [97]).
24
Handyside (1976) 1 E.H.R.R. 737 at [48]; Dudgeon (1981) 4 E.H.R.R. 149 at [52]; and Evans
(App. No.6339/05), judgment of April 10, 2007 at [77].
25
See Connors (2005) 40 E.H.R.R. 9 at [82] and Buckley v United Kingdom (1996) 23 E.H.R.R. 101
at [75].
26
Van Kuck
v Germany (2003) 37 E.H.R.R. 51 at [70]. See also McGinley and Egan v United
Kingdom (1998) 27 E.H.R.R. 1 at [98] and Airey v Ireland (1979) 2 E.H.R.R. 305 at [32].
27
See, e.g. Guerra v Italy (1998) 26 E.H.R.R. 357 at [57] and Taskin v Turkey (2006) 42 E.H.R.R. 50
at [111][114] (although note that the Court does not always address the question of applicability
separately).
28
Van Kuck
(2007) 37 E.H.R.R. 51 at [71]. See also von Hannover (2005) 40 E.H.R.R. 1 at [57];
Rees v United Kingdom (1987) 9 E.H.R.R. 56 at [37]; and Gaskin v United Kingdom (1989) 12 E.H.R.R.
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Article N.A. Moreham 49

So, although a state cannot rely expressly on Art.8(2) to justify a breach of a positive
obligation,29 the considerations listed therein will have a certain relevance when
determining whether a fair balance has been struck.30

The five categories


The content of these positive and negative obligations is varied and extensive. As
mentioned, although the Court itself has not articulated them, five distinct categories of
interest can be identified from within the private life decisions. The first of these is
the right to be free from interference with physical and psychological integrity.

Category 1: Freedom from interference with physical and psychological integrity


The Court has consistently observed that the right to respect for private life includes
the physical and psychological integrity of a person.31 A variety of different
interferences fall within this part of the private life interestphysical assault and
exposure, unwanted observation, intrusion into home and the workplace, and the
unwanted dissemination of images. Recognition of the need to protect against such
interferences is unsurprising. Although English courts are yet to recognise physical
intrusion as part of the privacy tort,32 it is part of the US privacy action33 and numerous
commentators regard it as a core part of the privacy interest.34 The right to be free from

36 at [42]. Indeed, in the environmental context, the Court has said that it does not matter if an
impugned measure is seen as a direct interference or as a failure to regulate private industry in
a manner which secured proper respect for their Art.8 rights (see Hatton (2003) 37 E.H.R.R. 28 at
[119] and pp.6467 below).
29
See Rees (1986) 9 E.H.R.R. 56 at [37].
30
Rees (1986) 9 E.H.R.R. 56 at [37]. The Court there said that Art.8(2) refers in terms only to
interferences with the right protected by the first paragraphin other words is concerned with
the negative obligations flowing therefrom. See also Gaskin (1989) 12 E.H.R.R. 36 at [42] and
Lopez Ostra v Spain (1994) 20 E.H.R.R. 277 at [51].
31
See, e.g. YF v Turkey (2004) 39 E.H.R.R. 34 at [33] and Pretty (2002) 35 E.H.R.R. 1 at [61]. Other
cases have referred to the physical and moral integrity of the person (see X and Y v Netherlands
(1985) 8 E.H.R.R. 235 at [22]; Costello-Roberts v United Kingdom (1993) 19 E.H.R.R. 112 at [34]; and
Stubbings v United Kingdom (1996) 23 E.H.R.R. 213 at [59]).
32
In Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, Lord Hoffmann (who gave
the leading judgment for the House of Lords) held that although the breach of confidence action
provides some protection against the disclosure of personal information, there is no general tort
of invasion of privacy in English law (see [30][35]).
33
See section 652B of the Restatement of the Law (Second), Torts (Volume 1) 2nd edn (Minnesota:
American Law Institute Publishers, 1977).
34
See, e.g. T. Gerety, Redefining Privacy (1977) 12 Harvard Civil Rights-Civil Liberties Law
Review 233, 265269; R. Gavision, Privacy and the Limits of the Law (1979) 89 Yale Law Journal
421, 423, 428 and 433; S. Benn, Privacy, Freedom and Respect for Persons in J. Pennock and
J. Chapman (eds), Privacy NOMOS Vol XIII (New York: Atherton Press, 1971), pp.34; J. Wagner
De Cew, The Scope of Privacy in Law and Ethics (1986) 5 Law & Philosophy 145, 156; R. Parker,
A Definition of Privacy (1974) 27 Rutgers Law Review 275, 280281. I have also advocated the
recognition of this interest (see N. Moreham, Privacy in the Common Law: a doctrinal and
theoretical analysis (2005) 121 L.Q.R. 628, 648656).
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50 The Right to Respect for Private Life in the European Convention on Human Rights

physical assault, searches, surveillance and the dissemination of images will therefore
be considered in this section.

Physical assault and exposure

The Court has recognised that a persons body concerns the most intimate aspect of
ones private life.35 The right to be free from physical and sexual assault and exposure
is therefore the first interest to fall within the physical and psychological integrity aspect
of private life.
Article 8, first, protects individuals against assaults and humiliation by state
authorities which do not meet the strict requirements of Art.3 (which protects individuals
against torture and inhuman or degrading treatment or punishment). For example,
compulsory medical interventions, even if only of minor importance, will constitute
an interference with private life.36 Member States have therefore been liable for forcing
a female prisoner to undergo a gynaecological examination upon release (to gather
evidence in case of an allegation of sexual abuse),37 for forcibly treating a woman in a
private psychiatric unit,38 and for administering potentially life threatening drugs to a
severely mentally and physically disabled child against the express wishes of his legal
proxy.39 Member States have also been held liable for strip searches which fall short
of the severity of treatment required for Art.3. For example, in Wainwright v United
Kingdom, the United Kingdom breached Art.8 when two visitors to a prison (one of
whom suffered a physical and mental disability) were strip searched in contravention
of prison rules; (neither candidate was shown a consent form in advance, both were
stripped virtually naked, one was stripped in front of a window and the other had his
genitals handled). The searches were held to be a disproportionate response to a drug
problem in the prison.40
Member States have also breached their positive obligations by failing to protect
applicants from violence by others. For example, States have been liable for failing

35
YF v Turkey (2004) 39 E.H.R.R. 34 at [33].
36
YF v Turkey (2004) 39 E.H.R.R. 34 at [33]. See also Bensaid v United Kingdom (2001) 33 E.H.R.R.
10 at [47] where the Court expressly held that an individuals mental and physical health is part
of his or her physical or moral integrity.
37
YF v Turkey (2004) 39 E.H.R.R. 34. See also Jalloh v Germany (2007) 44 E.H.R.R. 32 (the forced
administration of an emetic to a suspected drug smuggler was a breach of Art.3).
38
Storck v Germany (2006) 43 E.H.R.R. 6. The Member State became directly involved when the
police returned the applicant to the institution after an escape ((2006) 43 E.H.R.R. 6 at [146]) and,
in any event, had a positive obligation to supervise and exercise control over private institutions
(at [149][150]). See also Worwa v Poland (2006) 43 E.H.R.R. 35 where the Member State breached
the right to respect for private life by repeatedly ordering, at very short intervals, medical reports
on the applicants mental state in connection with a number of similar criminal cases.
39
Glass v United Kingdom (2004) 39 E.H.R.R. 15.
40
Wainwright v United Kingdom (2007) 44 E.H.R.R. 40 at [48]. The Court therefore implicitly
disagreed with Lord Hoffmanns suggestion (in the leading judgment for the House of Lords)
that the searches might not be regarded as a breach of Art.8 (see Wainwright v Home Office [2003]
UKHL 53; [2004] 2 A.C. 406 at [51]).
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to provide criminal sanction against the rape of a 16-year-old handicapped girl41 and
for failing to sanction effectively the offence of date rape.42 However, not every
act or measure which may be said to affect adversely the physical or moral integrity
of a person will give rise to an interference with the individuals private life.43 In
Costello-Roberts v United Kingdom, being hit three times on (clothed) buttocks with a
rubber soled shoe as part of corporal punishment in a school was held not to interfere
with the applicants private life.44

Search

Searching private spaces can also interfere with an individuals physical and
psychological integrity and therefore his or her private life. Numerous cases establish
that it is a breach of Art.8(1) to search an individuals residential premises.45 The
workplace is also protected on the basis that there is:

. . . [N]o reason of principle why. . . private life should be taken to exclude


activities of a professional or business nature since it is, after all, in the course of
their working lives that the majority of people have a significant, if not the greatest,
opportunity of developing relationships with the outside world.46

The Court has acknowledged, however, that Member States rights under Art.8(2)
might well be more far-reaching where professional or business activities or premises
were involved than would otherwise be the case.47

41
X and Y v Netherlands (1985) 8 E.H.R.R. 235. See also Stubbings (1996) 23 E.H.R.R. 213
where the Government fulfilled its positive obligations to protect vulnerable individuals from
perpetrators of child abuse by providing criminal sanctions and a time-limited civil action against
them.
42
MC v Bulgaria (2005) 40 E.H.R.R. 20.
43
Costello-Roberts (1993) 19 E.H.R.R. 112 at [36].
44
Costello-Roberts (1993) 19 E.H.R.R. 112 at [36].
45
Private life overlaps with the right to respect for home in this context. In some cases,
searches are treated as a breach of the right to respect for both private life and home (see,
e.g. Funke v France (1993) 16 E.H.R.R. 297 (where the searches also interfered with the right to
correspondence (at [48])) and Chappell v United Kingdom (1989) 12 E.H.R.R. 1 (which concerned
a search of combined business and residential premises) and in others, simply as an interference
with home (see, e.g. Keegan v United Kingdom (2007) 44 E.H.R.R. 33; Sallinen v Finland (2007) 44
E.H.R.R. 18; and Buck v Germany (2006) 42 E.H.R.R. 21). A fortiori, the state-sanctioned destruction
of an individuals home will interfere with private life, home and family life (see, e.g.
Bilgin v Turkey (2003) 36 E.H.R.R. 50; Dulas v Turkey (App. No.25801/94), judgment of January 30,
2001; and Moldovan v Romania (No.2) (2007) 44 E.H.R.R. 16 (individuals forced to live in crowded
and improper conditions following the destruction of their home)).
46
Niemietz (1992) 16 E.H.R.R. 97 at [29]. The concept of home in Art.8(1) also extends to
business premises (see, e.g. Niemietz (search of lawyers office); Sallinen (2007) 44 E.H.R.R. 18
(search of residential and business premises); and Buck (2006) 42 E.H.R.R. 21 at [31] (search of
combined residential and business premises). The extension of the word home to include the
workplace has been held to be consistent with the use of the word domicile in the French
version of the Convention (see Niemietz at [30][31]; Sallinen at [70]; and Buck at [31]).
47
Niemietz (1992) 16 E.H.R.R. 97 at [31]. See also Reiss v Austria (1995) 20 E.H.R.R. CD90.
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52 The Right to Respect for Private Life in the European Convention on Human Rights

Application of Article 8(2) in the search cases

It is accepted that Member States may consider it necessary to resort to [search]


measures in order to obtain physical evidence of certain offences.48 However,
Art.8(2) will only be satisfied if the search measures taken were proportionate.
This means, first, that the relevant legislation and practice must afford adequate and
effective safeguards against abuse.49 Secondly, the Court must consider the particular
circumstances of each case in order to determine whether, in the concrete case, the
interference in question was proportionate to the aim pursued.50 This depends on
criteria such as:

. . . [T]he severity of the offence in connection with which the search and seizure
was effected, the manner and circumstances in which the order had been issued, in
particular further evidence available at that time, the content and scope of the order,
having notably regard to the nature of the premises searched and the safeguards
taken in order to confine the impact of the measure to reasonable bounds, and the
extent of possible repercussions on the reputation of the person affected by the
search.51

Thus, the Court has held that it was not proportionate to search an applicants home
and business premises in order to ascertain whether his son, and not a member of
the applicants staff, was the driver of a company car caught on a speed camera,52 to
give customs authorities very wide powers including the authority to act without a
judicial warrant,53 nor to issue a judicial warrant which was very broadly drawn and to
conduct a search pursuant to it which impinged on professional secrecy and potentially
jeopardised the applicants professional reputation.54 A search of the wrong residential
premises has also been held to be disproportionate because basic steps to verify the
connection between the address and the offence under investigation were not properly
taken.55 The Court stressed that, [t]he fact that the police did not act maliciously is not
decisive under the Convention which is geared to protecting against abuse of power,
however motivated or caused.56

48
Buck (2006) 42 E.H.R.R. 21 at [45]. In this case there was a breach of the right to home and
not private life but the dicta appear to apply equally in both contexts.
49
Funke (1993) 16 E.H.R.R. 297 at [56]. See also Chappell (1989) 12 E.H.R.R. 1 at [60][66] and
Buck (2006) 42 E.H.R.R. 21 at [45][46].
50
Buck (2006) 42 E.H.R.R. 21 at [45].
51
Buck (2006) 42 E.H.R.R. 21 at [45].
52
The Court took account of the fact that the proceedings in question were against a third
party, the offence was a minor one and the alleged driver had no previous record, the evidence
collected was not ultimately relied on to secure a conviction, and the publicity surrounding the
search would adversely affect the applicants personal and business reputation (Buck (2006) 42
E.H.R.R. 21 at [47][51]).
53
Funke (1993) 16 E.H.R.R. 297 at [57].
54
Niemietz (1992) 16 E.H.R.R. 97 at [37].
55
Keegan (2007) 44 E.H.R.R. 33 at [34].
56
Keegan (2007) 44 E.H.R.R. 33 at [34]. See also [33] and compare Wainwright v Home Office
[2003] UKHL 53; [2004] 2 A.C. 406 at [51] where Lord Hoffmann (who gave the leading judgment
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Article N.A. Moreham 53

Surveillance

Even if no physical intrusion into private places occurs, surveillance and observation
can interfere with physical and psychological integrity and the right to respect for
private life. The third type of case to fall within the physical and psychological integrity
category therefore concerns unwanted listening and watching.

Unwanted listening

It is a breach of physical and psychological integrity, and hence Art.8(1), to intercept the
conversation of another. Member States will therefore interfere with private life if they
install a listening device in a persons home57 or prison cell58 or intercept telephone calls
made to or from a persons home,59 prison,60 or workplace.61 Member States are not
only responsible for interceptions they carry out themselves but, in some circumstances,
also for those carried out by private individuals; liability has been imposed where police
suggested that an individual record a conversation and/or provided the equipment to
do it.62 The mere existence of legislation permitting the interception of communications

in the House of Lords) doubted whether prison authorities should be liable under Art.8 for
unintentionally contravening prison rules when conducting a strip search.
57
PG and JH (App. No.44787/98), judgment of September 25, 2001 at [36]; Chalkley v United
Kingdom (2003) 37 E.H.R.R. 30 at [24]; Lewis v United Kingdom (2004) 39 E.H.R.R. 9 at [18]; Elahi v
United Kingdom (2007) 44 E.H.R.R. 30 at [17][18]; Hewitson v United Kingdom (2003) 37 E.H.R.R.
31 at [20] (listening device installed in applicants garage); Khan (2001) 31 E.H.R.R. 45 at [25]; and
Armstrong v United Kingdom (2003) 36 E.H.R.R. 30 at [19] (listening device installed at associates
home).
58
Allan v United Kingdom (2003) 36 E.H.R.R. 12 at [35]; PG and JH (App. No.44787/98),
judgment of September 25, 2001 at [60]; and Wood v United Kingdom (App. No.23414/02),
judgment of November 16, 2004 at [33].
59
See, e.g. Huvig v France (1990) 12 E.H.R.R. 528 at [25] and Halford (1997) 24 E.H.R.R. 523 at
[52]. The Court has held more generally that telephone conversations are covered by the notions
of private life and correspondence within the meaning of Article 8 (Malone (1984) 7 E.H.R.R.
14 at [64]; see also Klass (1978) 2 E.H.R.R. 214 at [41]; Craxi v Italy (No.2) (2004) 38 E.H.R.R. 47
at [57]; and Valenzuela Contreras v Spain (1999) 28 E.H.R.R. 483 at [46(i)]; however, compare, BC
v Switzerland (App. No.21353/93), judgment of February 27, 1995 at [1] where the Commission
held that a conversation held, without authorisation, on a wave-length reserved for aviation and
the military was not part of the applicants private life).
60
Doerga v Netherlands (2005) 41 E.H.R.R. 4 at [43] and Allan (2003) 36 E.H.R.R. 12 at [35].
61
Kopp v Switzerland (1998) 27 E.H.R.R. 91 at [50]; Huvig (1990) 12 E.H.R.R. 528 at [25]; Amann
(2000) 30 E.H.R.R. 843 at [45]; Halford (1997) 24 E.H.R.R. 523 at [43][46]. However, as with search
and seizure measures, the Member States entitlement [to interfere with the rights in article
8(1)] might well be more far-reaching where professional or business activities or premises were
involved than would otherwise be the case (Niemietz (1992) 16 E.H.R.R. 97 at [31]).
62
See A v France (1994) 17 E.H.R.R. 462 where an informant suggested telephoning the applicant
to obtain evidence of her involvement in a conspiracy to murder and was given access to a police
superintendents office, telephone, and recording equipment, and MM v Netherlands (2004) 39
E.H.R.R. 19 where police interfered with the right to respect for correspondence by connecting
a tape recorder to an informants telephone and suggesting that she record conversations with
the applicant in order to obtain evidence of his sexual advances towards her.
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can also interfere with applicants private lives even if the legislation is not actually used
against them: in the mere existence of the legislation itself, there is involved, for all
those to whom the legislation could be applied, a menace of surveillance.63 A fortiori,
it is no defence that the authorities did not make use of the recordings they made64 or
that they obtained the recording to get a voice sample rather than information about the
applicant.65

Unwanted watching and recording in public and private places

Unwanted watching and recording will also interfere with the applicants interest in
physical and psychological integrity. The Court has held, for example, that it is a
breach of Art.8(1) to video a person in his or her prison cell or prison visiting area.66
Protection against visual surveillance can also extend to public spaces; there is a zone
of interaction of a person with others, even in a public context, which may fall within
the scope of private life67 and Art.8(1) protection can therefore extend to measures
effected outside a persons home or private premises.68 However, surveillance in public
places will only be actionable if the applicants movements are recorded:

A person who walks down the street will, inevitably, be visible to any member
of the public who is also present. Monitoring by technological means of the same
public scene (eg a security guard viewing through close [sic] circuit television)
is of a similar character. Private life considerations may arise however once any
systematic or permanent record comes into existence of such material from the
public domain.69

However, not all recording of people in public places will be actionable. The
Commission70 consistently held that three factors should be considered when deciding

63
Klass (1978) 2 E.H.R.R. 214 at [41] (legislation authorising the opening and inspection of
mail, reading of telegraphic messages and monitoring and recording of telephone conversations
interfered with the applicants private life even though the applicants communications had not
been intercepted). See also Rotaru (App. No.28341/95), judgment of May 4, 2000 at [35] and Malone
(1984) 7 E.H.R.R. 14 at [64] (the fact that the applicant was a member of a class of persons against
whom measures of postal and telephone interception were liable to be employed was enough to
establish a breach of Art.8(1).
64
See Kopp (1988) 27 E.H.R.R. 91 at [51][53].
65
See PG and JH (App. No.44787/98), judgment of September 25, 2001 at [59][60].
66
Allan (2003) 36 E.H.R.R. 12 at [35].
67
Peck (2003) 36 E.H.R.R. 41 at [57]; Perry (2004) 39 E.H.R.R. 3 at [37]; von Hannover (2005) 40
E.H.R.R. 1 at [50]; and Sciacca v Italy (2006) 43 E.H.R.R. 20 at [29].
68
Perry (2004) 39 E.H.R.R. 3 at [37].
69
PG and JH (App. No.44787/98), judgment of September 25, 2001 at [57]. See also Peck (2003)
36 E.H.R.R. 41 at [59] and Perry (2004) 39 E.H.R.R. 3 at [38].
70
Before November 1998, admissibility decisions under the Convention were heard by the
Commission of Human Rights (the Commission) and substantive decisions were heard by the
European Court of Human Rights. However, since November 1998, the roles of both institutions
have been carried out by a newly constituted European Court of Human Rights. See further Jacobs
& White: The European Convention on Human Rights, pp.810.
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whether it is a breach to take a photograph of an individual in a public place. They were


whether the taking of photographs amounted to an intrusion into the individuals
privacy, whether it related to private matters or public incidents, and whether the
material thus obtained was envisaged for a limited use or was likely to be made
available to the general public.71 Thus, it was not a breach of Art.8 to photograph the
applicant taking part in a sit-in protest, first, because there was no invasion in the
sense that the authorities entered his home and took the photographs there, secondly,
because the photographs related to public incidents in which the applicant was
voluntarily taking part and, thirdly, because the photographs were taken solely for the
purpose of investigating the incident in question.72
In deciding whether surveillance in a public place is actionable, the Court has also
examined the extent to which the applicant could have foreseen the use to which the
recording was ultimately put.73 In Perry, in which UK police breached Art.8 by using a
CCTV camera in a police custody suite to obtain footage for use in an identity parade,
the Court held that:

Whether or not [the applicant] was aware of the security cameras running in
the custody suite, there is no indication that the applicant had any expectation
that footage was being taken of him within the police station for use in a video
identification procedure and, potentially, as evidence prejudicial to his defence at
trial. This ploy adopted by the police went beyond the normal or expected use of
this type of camera . . .74

The fact that the applicant could not be expected to foresee the use to which the footage
was therefore an important factor in finding a breach.

Application of Article 8(2) in the surveillance cases

In so far as Art.8(2) is concerned, the Court has recognised that:

[T]he existence of some legislation granting powers of secret surveillance . . . is,


under exceptional conditions, necessary in a democratic society in the interests of
national security and/or for the prevention of disorder and crime.75

However, Member States seeking to justify surveillance measures often fall at the in
accordance with the law hurdle before the necessity of the measure is even considered.
In some cases, this is simply because there was no legal framework governing the

71
Friedl v Austria (1995) 21 E.H.R.R. 83 at [48]. See also Peck (2003) 36 E.H.R.R. 41 at [61].
72
Friedl (1995) 21 E.H.R.R. 83 at [49]. See also X v United Kingdom (App. No.5877/72),
judgment of October 12, 1973 at [2] (no interference with the applicants private life when the
police photographed her during and after an anti-apartheid demonstration at a rugby match).
73
Perry (2004) 39 E.H.R.R. 3 at [37][38].
74
Perry (2004) 39 E.H.R.R. 3 at [41]. See also [38] and [40].
75
Klass (1978) 2 E.H.R.R. 214 at [48]. The Court has made similar observations in the context of
security vetting and the collection and storage of information (see, e.g. Leander (1987) 9 E.H.R.R.
433 at [59]).
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searches or interceptions in question76 or because the authorities failed to comply with


the relevant law when carrying out the interception.77 However, in others, the measures
have failed to meet the two key qualitative requirements of the in accordance with the
law test; namely, that citizens have an indication that is adequate in the circumstances
of the legal rules applicable to a given case(accessibility)78 and that citizens:

[B]e ableif need be with appropriate adviceto foresee, to a degree that is


reasonable in the circumstances, the consequences which a given action may
entail (foreseeability).79

Although the foreseeability requirement clearly cannot mean that an individual should
be enabled to foresee when the authorities are likely to intercept his communications so
that he can adapt his conduct accordingly:80

. . . [T]he law must indicate the scope of any such discretion conferred on the
competent authorities and the manner of its exercise with sufficient clarity, having
regard to the legitimate aim of the measure in question, to give the individual
adequate protection against arbitrary interference.81

Thus, the requirements of Art.8(2) were not met when the Court itself could not say with
any reasonable certainty what elements of the powers to intercept [we]re incorporated
in legal rules and what elements remain[ed] within discretion of the executive82 nor
when the law in question did not make it clear how, under what conditions and
by whom the existence of legal professional privilege was to be determined and in
practice the decision was made by a member of the executive who was not supervised
by an independent judge.83
Once the in accordance with the law hurdle is cleared, states enjoy a certain
discretion in determining the conditions under which any system of surveillance is

76
See, e.g. Khan (2001) 31 E.H.R.R. 45 at [27][28]; Allan (2003) 36 E.H.R.R. 12 at [35][36];
Lewis (2004) 39 E.H.R.R. 9 at [18][19]; Halford (1997) 24 E.H.R.R. 523 at [50][51]; Wood (App.
No.23414/02), judgment of November 16, 2004 at [32][33]; Hewitson (2003) 37 E.H.R.R. 31 at
[20][21]; Armstrong (2003) 36 E.H.R.R. 30 at [19][20]; and Chalkley (2003) 37 E.H.R.R. 30 at
[24][25].
77
See MM v Netherlands (2004) 39 E.H.R.R. 19 at [44][46]. See also Perry (2004) 39 E.H.R.R. 3
at [47][49].
78
Sunday Times (1979) 2 E.H.R.R. 245 at [49].
79
Sunday Times (1979) 2 E.H.R.R. 245 at [49]. See also Amann (2000) 30 E.H.R.R. 843 at [56];
Rotaru (App. No.28341/95), judgment of May 4, 2000 at [55]; and Malone (1984) 7 E.H.R.R. 14 at
[66]. Member States failed to satisfy this requirement in Huvig (1990) 12 E.H.R.R. 528 at [29][35],
Amann (2000) 30 E.H.R.R. 843 at [55][62], and Kopp (1988) 27 E.H.R.R. 91 at [64][75].
80
Malone (1984) 7 E.H.R.R. 14 at [67].
81
Malone (1984) 7 E.H.R.R. 14 at [68]. See also Kopp (1988) 27 E.H.R.R. 91 at [64]; Halford (1997)
24 E.H.R.R. 523 at [49]; and Valenzuela Contreras (1999) 28 E.H.R.R. 483 at [46(iii)]; Segerstedt-Wiberg
(2007) 44 E.H.R.R. 2 at [76]; and Rotaru (App. No.28341/95), judgment of May 4, 2000 at [55].
82
Malone (1984) 7 E.H.R.R. 14 at [79].
83
Kopp (1988) 27 E.H.R.R. 91 at [73][75]. The minimum safeguards required in the context of
telephone tapping are set out in Valenzuela Contreras (1999) 28 E.H.R.R. 483 at [46(iv)].
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to be operated.84 The Court has accepted that surveillance is often necessary in a


democratic society for the prevention of crime and highly sophisticated forms of
espionage and by terrorism85 but insists that a measure will only be necessary in a
democratic society if there exist adequate and effective guarantees against abuse.86
This depends on:

. . . [A]ll the circumstances of the case, such as the nature, scope and duration
of the possible measures, the grounds required for ordering such measures, the
authorities competent to permit, carry out and supervise such measures, and the
kind of remedy provided by the national law.87

Factors supporting successful Art.8(2) claims have included the fact that enabling
legislation imposed strict conditions on the use of surveillance measures and conferred
powers of review upon two bodies appointed by Parliament88 or established systems
whereby parliamentarians sat on the National Police Board and the interceptions were
supervised by officers such as the Parliamentary Ombudsman.89

Disseminating images

Closely related to the issue of obtaining images of an individual is the question of


when a Member State will be liable for disseminating an image of an individual to
a third party. The Court has made it clear that the concept of private life includes
elements relating to a persons right to [his or her] picture and that the publication
of a photograph falls within the scope of private life90 and that Member States have
both positive and negative obligations to protect such images. Images both provide
information about their subjects and enable third parties to observe their subjects by
looking at the images. Their dissemination could therefore be considered either as an
interference with physical and psychological integrity or with the informational aspects
of private life discussed in the next section. However, because the Court often fails to
distinguish clearly between liability for obtaining images and for disseminating them91

84
Klass (1978) 2 E.H.R.R. 214 at [49]. See also Leander (1987) 9 E.H.R.R. 433 at [59].
85
Klass (1978) 2 E.H.R.R. 214 at [48]. See also Leander (1987) 9 E.H.R.R. 433 at [59].
86
Klass (1978) 2 E.H.R.R. 214 at [50]. See also Leander (1987) 9 E.H.R.R. 433 at [60] and Segerstedt-
Wiberg v Sweden (2007) 44 E.H.R.R. 2 at [88].
87
Klass (1978) 2 E.H.R.R. 214 at [50].
88
Klass (1978) 2 E.H.R.R. 214 at [51][60].
89
Leander (1987) 9 E.H.R.R. 433 at [62][65]. The Court rejected the argument that surveillance
measures will only be necessary in a democratic society if the Government subsequently
informs the subject that survelliance has taken place (see Klass (1978) 2 E.H.R.R. 214 at [58] and
Leander (1987) 9 E.H.R.R. 433 at [66]). Files documenting letter bomb threats against an applicant
were also held to be necessary in a democratic society for the prevention of disorder and crime
(although those documenting the applicants affiliations with particular political organisations
were not) (see Segerstedt-Wiberg v Sweden (2007) 44 E.H.R.R. 2 at [87][92]).
90
Sciacca (2006) 43 E.H.R.R. 20 at [29]. See also von Hannover (2005) 40 E.H.R.R. 1 at [50][53]
and the admissibility decision of Schussel
v Austria (App. No.42409/98), judgment of February 21,
2002 at [2].
91
See, e.g. Perry (2004) 39 E.H.R.R. 3 at [41].
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58 The Right to Respect for Private Life in the European Convention on Human Rights

and because applicants primary objection is to the fact that the dissemination of images
enable third parties to observe them for themselves,92 the cases fall most naturally
alongside the other physical and psychological integrity decisions.93

The negative obligation to protect images

The first type of obligation imposed on Member States in this context is a negative
obligation to refrain from disseminating images of individuals. Thus, in Peck, the United
Kingdom breached Art.8 by disseminating to broadcasters CCTV footage of an applicant
on a public street immediately before and after he tried to commit suicide.94 Likewise,
in Perry, the police breached Art.8 by using CCTV footage of an applicant in a police
custody suite as part of an identity parade.95 Two main factors were important in
these decisions. First, as in the obtaining cases, the Court considered whether the
dissemination of the photographs was foreseeable. The Court in Peck emphasised that:

. . . [T]he relevant moment was viewed to an extent which far exceeded any
exposure to a passer-by or to security observation and to a degree surpassing that
which the applicant could possibly have foreseen when he walked in [the area on
the date in question].96

Likewise, in Perry it stressed that, [p]ublication of the material in a manner or degree


beyond that normally foreseeable may also bring security recordings within the scope
of article 8(1).97
The second factor considered was the applicants mental state at the time that the
images were obtained. Distress and/or vulnerability on the part of the applicant is
particularly important. Thus, the Court in Peck observed that:

The present applicant was in a public street but he was not there for the purposes
of participating in any public event and he was not a public figure. It was
late at night, he was deeply perturbed and in a state of some distress. While

92
I have made this argument more fully elsewhere in N. Moreham, Privacy in Public Places
[2006] 65 C.L.J. 606, 614. See also A. McClurg, Bringing Privacy Law Out of the Closet: A Tort
Theory of Liability for Intrusions in Public Places (1995) 73 North Carolina Law Review 989,
10411044.
93
The Court in von Hannover also refers to the applicants physical and psychological integrity
when discussing Member States positive obligation to protect individuals against the publication
of photographs by third parties (see (2005) 40 E.H.R.R. 1 at [50]).
94
Peck (2003) 36 E.H.R.R. 41.
95
Perry (2004) 39 E.H.R.R. 3.
96
Peck (2003) 36 E.H.R.R. 41 at [62].
97
Perry (2004) 39 E.H.R.R. 3 at [38]. The same considerations which led the Court to conclude
that it was a breach to obtain the CCTV footage for use in an identity parade also meant it was a
breach actually to show it to the witnesses. Indeed, the Court did not distinguish clearly between
liability for obtaining the image for use in the identity parade and for actually using it in the
identity parade (at [38][43]; see also p.55 above).
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he was walking in public wielding a knife, he was not later charged with any
offence.98

However, both Peck and Perry concerned situations where authorities had disclosed
CCTV footage without the applicants consent. The Court and Commission have held
that different considerations arise in cases where Member States have disseminated
photographs given voluntarily or taken legitimately in one context in another completely
different context. In Lupker v Netherlands and Doorson v Netherlands, the Commission held
that Member States could use photographs provided in connection with other arrests
or licence or passport applications for identification purposes because the photographs
were not taken in a way which intruded on the applicants privacy, they were kept in
police or official archives, they were used solely for the purpose of identifying offenders
and had not been made available to the general public or used for any other purpose.99
(However, only the last of these factors seemed in fact to be relevant because the
applicants had made no objection to the way the photographs were taken or stored.)
The Court in Sciacca v Italy took a different approach. It held that authorities breached
Art.8(1) by providing the media with a photograph from the file of a woman charged
with criminal association, extortion, forgery, fraud and tax evasion. The only reasons
given for that decision were that publication of a photograph falls within the scope of
private life and that the applicant was an ordinary person and not a public figure.100
It seems that in all of these cases, the Court would have been better to ask (as it did
in Peck and Perry) whether the use to which the photograph was ultimately put was
reasonably foreseeable at the time it was taken.101

The positive obligation to protect images

Importantly, Art.8 also imposes a positive obligation on Member States to protect[] . . .


a persons picture against abuse by others.102 In von Hannover v Germany, the Court
held that Germany breached this obligation by failing to provide adequate redress for
publication of paparazzi photographs of Princess Caroline going about her daily life.
(The photographs showed the princess shopping, riding a bicycle, eating in a restaurant,
skiing in Austria, leaving her Parisian residence, playing tennis with her husband, and
tripping over an obstacle at a beach club.) The central question was whether German

98
Peck (2003) 36 E.H.R.R. 41 at [62]. Further, although the disclosures in question served the
legitimate aims of promoting public safety, preventing disorder and crime and protecting the
rights of others (at [67]) they were a disproportionate response to those aims (at [76][87]).
99
Lupker v Netherlands (App. No.18395/91), judgment of December 7, 1992 at [5] and Doorson
v Netherlands (App. No.20524/92), judgment of November 29, 1993 at [2].
100
Sciacca (2006) 43 E.H.R.R. 20 at [29]. Further, because there was no law authorising the
release of the photograph (only a code of practice) the interference was not in accordance with
the law and was therefore actionable (at [30]).
101
Indeed, when discussing the Lupker case, the Court in Peck emphasised the Commissions
third factor, namely, the use to which the authorities had put the photograph (see Peck (2003) 36
E.H.R.R. 41 at [61]).
102
von Hannover (2005) 40 E.H.R.R. 1 at [57]. See also Spencer v United Kingdom (1998) 25
E.H.R.R. CD105 at CD112.
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60 The Right to Respect for Private Life in the European Convention on Human Rights

lawwhich only protected public figures par excellence if they could show that they
were in secluded places when the photographs were taken103 struck a fair balance
between the applicants right to respect for private life and the medias right to freedom
of expression. In reaching that conclusion, the Court emphasised that the photographs
were taken without the applicants knowledge or consent and acknowledged that the
harassment endured by many public figures in their daily lives [could] not be fully
disregarded.104 However, the decisive factor for the Court was the fact that the
photographs made no contribution to a debate of general interest.105 Two particular
factors bore on that conclusion.106
The first was the fact that the photographs showed the applicant engaged in activities
of a purely private nature such as practising sport, out walking, leaving a restaurant or
on holiday.107 The Court does not define purely private nature but it is clear that the
concept is not spatial. As in Peck,108 the activities were held to be part of private life
even though they took place in public:

. . . [T]he public does not have a legitimate interest in knowing where the applicant
is and how she behaves generally in her private life even if she appears in places that
cannot always be described as secluded and despite the fact that she is well known to
the public.109

Instead, private nature seems loosely to mean not connected with ones public func-
tions. Thus, the Court emphasised the fact that the images in question did not come
within the sphere of any political or public debate because the published photos and
accompanying commentaries relate exclusively to details of the applicants private
life.110

103
See von Hannover (2005) 40 E.H.R.R. 1 at [74].
104
von Hannover (2005) 40 E.H.R.R. 1 at [68]. The Court also observed that photographs such
as those at issue in the case are often taken in a climate of continual harassment ((2005) 40
E.H.R.R. 1 at [59]).
105
von Hannover (2005) 40 E.H.R.R. 1 at [76].
106
The Court also took account of the fact that the case does not concern the dissemination of
ideas, but of images containing very personal or even intimate information about an individual
(von Hannover (2005) 40 E.H.R.R. 1 at [59]) and that the Parliamentary Assembly of the Council
of Europe said that those members of the media who claim that their readers are entitled to
know everything about public figures had a one-sided interpretation of freedom of expression
((2005) 40 E.H.R.R. 1 at [67]).
107
von Hannover (2005) 40 E.H.R.R. 1 at [61] (emphasis added).
108
See Peck (2003) 36 E.H.R.R. 41 at [62]. The applicants suicide attempt was part of private
life even though it took place on a public street.
109
von Hannover (2005) 40 E.H.R.R. 1 at [77] (emphasis added). Further, even if such a public
interest did exist, in the circumstances it would have to yield to the applicants right to the
effective protection of her private life ((2005) 40 E.H.R.R. 1 at [77]).
110
von Hannover (2005) 40 E.H.R.R. 1 at [64]. See also Craxi (2004) 38 E.H.R.R. 47 at [66] where
transcripts of telephone calls between the former Italian Prime Minister and his lawyer and
political associates were held to be of a strictly private nature because [t]heir content had
little or no connection . . . with the criminal charges brought against the applicant and Jaime
Campmany y Diez de Revenga v Spain (App. No.54224/00), judgment of December 12, 2000 where
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Secondly, taking a much narrower view of the public interest than English courts
developing the privacy tort,111 the Court stressed that the applicant is a private
individual who does not exercise any official functions.112 It said:

. . . [A] fundamental distinction needs to be made between reporting factseven


controversial onescapable of contributing to a debate in a democratic society
relating to politicians in the exercise of their functions, for example, and reporting
details of the private life of an individual who, moreover, as in this case, does not
exercise official functions. While in the former case the press exercises its vital role of
watchdog in a democracy by contributing to impart[ing] information and ideas on
matters of public interest . . . it does not do so in the latter case. Similarly, although
the public has a right to be informed, which . . . in certain special circumstances,
can even extend to aspects of the private life of public figures, particularly where
politicians are concerned, this is not the case here. The situation here does not come
within the sphere of any political or public debate . . .113

This is consistent with the Courts general approach of recognising that there is an
increased public interest in the lives of public figures but then defining public figure
narrowly. Figures such as Princess Caroline, who is part of a reigning family and
represents the family at cultural or charitable events but does not exercise official
functions, fall outside the exception.114 Similarly, in Sciacca the Court held that [t]he
fact that the applicant was the subject of criminal proceedings [for extortion, fraud
and forgery] [did] not curtail the scope of [private life] protection.115 The term public
figure does however include politicians. The Court has held that politicians inevitably
and knowingly lay themselves open to close scrutiny by both journalists and the public
at large116 and therefore have to bear the consequences thereof.117 There was
therefore a particular public interest in criminal proceedings involving a political man

the Member State was held to have breached Art.10 by providing remedies for publications about
an alleged affair between a banker and an aristocrat because their publicly conveyed image,
assuming it existed, had never extended to their love lives (see section entitled The Law,
paragraphs unnumbered).
111
See, e.g. Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 A.C. 457; A v B Plc [2002] EWCA
Civ 337; [2003] Q.B. 195; and Theakston v MGN Ltd [2002] EWHC 137 (QB); [2002] E.M.L.R. 22.
112
von Hannover (2005) 40 E.H.R.R. 1 at [72].
113
von Hannover (2005) 40 E.H.R.R. 1 at [63][64]. The Court in Peck also stressed that the
applicant was not a public figure and was not participating in a public event at the time that the
footage was obtained (see (2003) 36 E.H.R.R. 41 at [62]).
114
von Hannover (2005) 40 E.H.R.R. 1 at [62] and [72]. See also Tammer v Estonia (2003) 37
E.H.R.R. 43 at [68] where, in the Art.10 context, the Court held that the fact that the applicant
had had an affair with a serving Prime Minister some years earlier and intended to publish her
memoirs was not enough to mean that the use of insulting terms in connection with her private
life was justified by considerations of public concern.
115
Sciacca (2006) 43 E.H.R.R. 20 at [29].
116
Craxi (2004) 38 E.H.R.R. 47 at [64]. See also Krone Verlag GMBH & Co Kg v Austria (2003) 36
E.H.R.R. 57 at [35].
117
Krone Verlag (2003) 36 E.H.R.R. 57 at [37].
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and former Prime Minister118 and, in the Art.10 context, the public interest in efforts
made to conceal the late President Mitterrands illness was held to outweigh his and
his familys interest in honour, reputation and privacy.119 (Unlike English courts, the
Court has not yet applied this reasoning to other individuals who voluntarily enter
the public arena, such as celebrities who court publicity.)120
However, even those who do fit into the Courts narrow conception of public figure
are entitled to a private life: anyone, even if they are known to the general public,
must be able to enjoy a legitimate expectation of protection of and respect for private
life.121 Thus, the public interest in transcripts of a former Prime Ministers telephone
conversations with political associates only covers facts which [were] connected with
the criminal charges brought against the accused122 and the publics right to be
informed does not extend to publications, such as those in von Hannover, of which the
sole purpose was to satisfy the curiosity of a particular readership regarding the details
of the applicants private life.123

Category 2: The collection and disclosure of information


All of the cases discussed so far have been concerned with the physical and
psychological integrity of the person, an interest not yet recognised as part of the
English privacy/breach of confidence tort. In contrast, the next category of cases
clearly overlaps with that developing common law action. It concerns the right to
be free from unwanted informational accessthe right to be free from unwanted
collection and storage of information, the reading of personal materials and the
interception of correspondence.124 (This category also overlaps with the physical and
psychological integrity category discussed abovethose who install bugging devices
or surveillance cameras or disseminate images of others will not only intrude on the
applicants physical and psychological integrity but will also obtain and/or pass on

118
Craxi (2004) 38 E.H.R.R. 47 at [64].
119
Editions Plon v France (2006) 42 E.H.R.R. 36. See also von Hannover (2005) 40 E.H.R.R. 1 at
[64] and Krone Verlag (2003) 36 E.H.R.R. 57 where a Member of Parliaments right to reputation
was outweighed by the medias right to publish a photograph of him alongside a story alleging
that he was unlawfully collecting three salaries.
120
Compare, e.g. Campbell [2004] UKHL 22; [2004] 2 AC 457 and Theakston [2002] EWHC 137
(QB); [2002] E.M.L.R. 22.
121
von Hannover (2005) 40 E.H.R.R. 1 at [69]. See also Craxi (2004) 38 E.H.R.R. 47 at [65]: public
figures are entitled to the enjoyment of the guarantees set out in article 8 of the Convention on
the same basis as every other person.
122
Craxi (2004) 38 E.H.R.R. 47 at [65].
123
von Hannover (2005) 40 E.H.R.R. 1 at [65].
124
Protection of private information is almost universally accepted as part of the privacy
interest. It forms the basis of the English breach of privacy/confidence action and numerous
commentators recognise its importance. See, e.g. H. Gross, Privacy and Autonomy in Pennock
and Chapman (eds), Privacy, p.172; M. Weinstein, The Uses of Privacy in the Good Life in
Pennock and Chapman (eds), Privacy, p.94; Gavison, Privacy and the Limits of the Law (1979)
89 Yale Law Journal 421, 428432; A. Westin, Privacy and Freedom (New York: Atheneum, 1970), p.7;
and R. Wacks, Personal Information: Privacy and the Law (Oxford: Clarendon Press, 1989), pp.1330.
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a good deal of information. However, only those cases which deal specifically with
the collection, storage and use of information and they will be considered in this
section.)

Collecting information

It is a breach of the informational aspects of private life, first, to use intrusive


methods to collect information about an individual. Liability has been imposed for
keeping people under surveillance in or searching their homes, workplaces or prison
cells,125 for enacting legislation allowing authorities to open and inspect mail and read
telegraphic messages,126 for intercepting pager messages,127 for seizing an applicants
diaries or memoirs,128 for monitoring workplace telephone and internet usage,129 and
for telephone metering (the practice of obtaining information about the telephone
numbers called from a particular telephone).130 Non-intrusive information gathering
can also breach Art.8(1). For example, in Friedl v Germany one of the ways the authorities
breached Art.8(1) was by questioning the applicant to establish his identity and by
recording the personal information provided.131

Storing information

Article 8 will also be breached if authorities store information relating to an applicants


private life on a secret police register or national security file, use that information,
and/or refuse to allow the applicant to refute it.132 Systematic collection and storage of

125
See pp.5154 above.
126
Klass (1978) 2 E.H.R.R. 214 at [41]. Interference with written correspondence will also breach
the Art.8(1) right to respect for correspondence. Further, because the word correspondence is
not qualified by the word private, protection of it extends to all types of communication, not
just those which are personal (see Niemietz (1992) 16 E.H.R.R. 97 at [32]). The monitoring and
censorship of prisoners correspondence is usually dealt with under this part of Art.8. See, e.g.
Klamecki v Poland (No.2) (2004) 39 E.H.R.R. 7 at [137][140]; Natoli v Italy (2003) 37 E.H.R.R. 49 at
[40][46]; AB v Netherlands (2003) 37 E.H.R.R. 48 at [81][88]; Petra v Romania (2001) 33 E.H.R.R. 5
at [36][39]; and Giovine v Italy (2003) 36 E.H.R.R. 8 at [24][26].
127
Taylor-Sabori v United Kingdom (2003) 36 E.H.R.R. 17 at [18].
128
See Smith and Grady v United Kingdom (1999) 29 E.H.R.R. 493 at [25] and [71] in which
investigations by military police into the applicants homosexuality (including the seizure of one
of the applicants electronic diary) breached Art.8(1). See also Yankov v Bulgaria (2005) 40 E.H.R.R.
36 at [130][145] where the Court held that punishing a prisoner for recording criticisms of prison
authorities in his private memoirs was an unjustified breach of Art.10. Since the prisoner had not
shown the memoirs to anyone else, the Court said that the case might also raise issues under
Art.8 (at [140]).
129
Copland v United Kingdom (2007) 45 E.H.R.R. 37 at [42].
130
PG and JH (App. No.44787/98), judgment of September 25, 2001 at [42].
131
Friedl (1995) 21 E.H.R.R. 83 at [52]. See also Amann (2000) 30 E.H.R.R. 843 at [69][70].
132
Leander (1987) 9 E.H.R.R. 433 at [48] and Rotaru (App. No.28341/95), judgment of May 4,
2000 at [46].
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information will breach Art.8(1) even if the information in question is publicly avail-
able133 and/or is not of a particularly sensitive or personal nature. The Court has held
that:
. . . [I]t is not for the Court to speculate as to whether the information gathered
on the applicant was sensitive or not or as to whether the applicant had been
inconvenienced in any way. It is sufficient for it to find that data relating to the
private life of an individual was stored by a public authority to conclude that. . . the
creation and storing of the impugned card [in a national security index] amounted
to an interference.134
Because information collection and storage is regarded as a form of surveillance, Art.8(2)
is applied strictly in these cases.135
Finally, even in circumstances where it is acceptable to store personal information
about an individual, Member States will have a positive obligation to store it securely
and, if there is a leak, to provide a plausible explanation for how the information
was released into the public domain.136 Thus, in Craxi v Italy, the Member State
breached its positive obligations, first, by allowing transcripts of conversations lodged
in a court registry to fall into journalists hands and then by failing to investigate the
leak effectively.137

Publishing information

Disseminating information about a person will also interfere with the informational
aspects of private life and therefore breach Art.8(1). The release of telephone transcripts
of an applicants conversations will therefore be actionable,138 as will the dissemination
of images of a person.139

Category 3: Protection of ones living environment


The right to live free from serious environmental pollutionthe third aspect of the right
to respect for private lifedoes not fit neatly into traditional concepts of privacy nor
with other aspects of the private life interest protected under Art.8. They do however
form an important part of the private life interest.

133
Rotaru (App. No.28341/95), judgment of May 4, 2000 at [42][44] and Segerstedt-Wiberg
(2007) 44 E.H.R.R. 2 at [72][73].
134
Amann (2000) 30 E.H.R.R. 843 at [70].
135
See pp.5557 above. Rotaru (App. No.28341/95), judgment of May 4, 2000; Leander (1987) 9
E.H.R.R. 433; Segerstedt-Wiberg (2007) 44 E.H.R.R. 2; and Amman (2000) 30 E.H.R.R. 843 (which are
discussed at pp.5557 above) all involved, inter alia, the storage of information on card registers.
136
Craxi (2004) 38 E.H.R.R. 47 at [74][75]. However, in a persuasive dissent, Judge Zagrebelsky
argued that an obligation to investigate could be inconsistent with the protection of journalistic
sources and that Member States should not be obliged to investigate Convention breaches outside
the context of Arts 2 and 3 (at [O-I21][O-I28]).
137
Craxi (2004) 38 E.H.R.R. 47 at [75].
138
Craxi (2004) 38 E.H.R.R. 47 at [60][84].
139
See pp.5762 above.
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Although there is no explicit right in the Convention to a clean and quiet


environment,140 the Court has acknowledged that:

. . . [S]evere environmental pollution may affect individuals well-being and


prevent them from enjoying their homes in such a way as to affect their private and
family life adversely, without, however, seriously endangering their health.141

Member States have therefore breached their obligations under Art.8 by failing to
prevent a waste treatment plant (which was operating without a licence) from causing
noise pollution and emitting toxic fumes in a residential area,142 failing to provide
information about the risks associated with the operation of a local chemical factory,143
failing to prevent private bar and club operators from causing noise pollution in
a residential area144 and failing to enforce a domestic judgment annulling a permit
which authorised the use of hazardous substances in a gold mining operation.145 In
contrast, the destruction of swampland through urban development (which destroyed
the scenic beauty of the applicants home) did not have a sufficiently adverse effect on
the applicants private and family lives to give rise to a breach.146
The Court has stressed the similarities between Member States positive and negative
obligations in this environmental context. It says:

Article 8 may apply in environmental cases whether the pollution is directly


caused by the State or whether State responsibility arises from the failure properly
to regulate private industry. Whether the case is analysed in terms of a positive duty
on the State to take reasonable and appropriate measures to secure the applicants
rights under paragraph 1 of article 8 or in terms of an interference by a public
authority to be justified in accordance with paragraph 2, the applicable principles
are broadly similar. In both contexts regard must be had to the fair balance that

140
See Hatton (2003) 37 E.H.R.R. 28 at [96] and Kyrtatos v Greece (2005) 40 E.H.R.R. 16 at [52].
141
Lopez Ostra (1994) 20 E.H.R.R. 277 at [51]. See also, Guerra (1998) 26 E.H.R.R. 357 at [60];
Hatton (2003) 37 E.H.R.R. 28 at [96]; and Taskin (2006) 42 E.H.R.R. 50 at [113]. In very serious

cases, the Art.2 right to life might also be engaged. For example, in Oneryildiz v Turkey (2004) 39
E.H.R.R. 12, the Turkish Government violated its positive obligations under Art.2 by failing to
protect slum residents from the effects of an explosion at a rubbish dump in which nine members
of the applicants family were killed.
142
Lopez Ostra (1994) 20 E.H.R.R. 277 at [44][58].
143
Guerra (1998) 26 E.H.R.R. 357 at [56][60].
144
Moreno Gomez v Spain (2005) 41 E.H.R.R. 40 at [53][63]. However, compare Kyrtatos (2005)
40 E.H.R.R. 16 at [54] in which disturbances (caused by noise, lights and the like) resulting from
an urban development in the applicants area were held not to have been sufficiently serious to
infringe Art.8 and Powell and Rayner v United Kingdom (1990) 12 E.H.R.R. 355 at [37][46] where
noise from Heathrow airport was held not to have violated the applicants Art.8 rights.
145
Taskin (2006) 42 E.H.R.R. 50 at [111][126]. Article 8 will also apply where the dangerous
effects have not yet occurred but have been identified as part of an environmental impact
assessment procedure (at [113]).
146
Kyrtatos (2005) 40 E.H.R.R. 16. In order to breach Art.8, environmental pollution must
have a harmful effect on the applicants private or family sphere and not simply cause a general
deterioration in the environment (at [51][53]).
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has to be struck between the competing interests of the individual and of the
community as a whole; and in both contexts the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure compliance with the
Convention.147
Indeed, the Court often declines to articulate whether positive or negative obligations
are at issue in environmental cases. For example, in Hatton, a majority of the Grand
Chamber148 held that a Government scheme permitting an increased number of night
flights at Heathrow could be seen either as a direct interference with Art.8 rights or as a
failure to regulate private industry in a manner which secured proper respect for those
rights.149 In either case the same two questions had to be asked:

First, the Court may assess the substantive merits of the Governments decision, to
ensure that it is compatible with article 8. Secondly, it may scrutinise the decision-
making process to ensure that due weight has been accorded to the interests of the
individual.150
A wide margin of appreciation is accorded to Member States in the substantive part
of this inquiry. For example, the Court in Hatton stressed that the decision concerned
a matter of general policy, on which opinions within a democratic society may
reasonably differ widely151 and concluded that a fair balance had been struck between
the interests of the applicants and those of the aviation industry and the community as
a whole.152
With regard to the procedural question, the Court has held that although Art.8
contains no explicit procedural requirements, the decision-making process which
resulted in the environmental interference must have been fair and have afforded
due respect to the interests of the individual as safeguarded by article 8.153 All the
circumstances of the case will therefore be considered, including the type of policy or

147
Hatton (2003) 37 E.H.R.R. 28 at [98]. See similar passages in Lopez Ostra (1994) 20 E.H.R.R.
277 at [51]; Moreno Gomez (2005) 41 E.H.R.R. 40 at [55]; and Powell and Rayner (1990) 12 E.H.R.R.
355 at [41].
148
Since 1998, substantive decisions of the seven-judge Chambers of the European Court of
Human Rights it has been possible to appeal to the 17-judge Grand Chamber of the Court. See
further Jacobs & White: The European Convention on Human Rights, pp.1011.
149
Hatton (2003) 37 E.H.R.R. 28 at [119]. See also Lopez Ostra (1994) 20 E.H.R.R. 277 at [52];
Taskin (2006) 42 E.H.R.R. 50 at [115]; and Powell and Rayner (1990) 12 E.H.R.R. 355 at [45].
150
Hatton (2003) 37 E.H.R.R. 28 at [99]. See also Taskin (2006) 42 E.H.R.R. 50 at [115].
151
Hatton (2003) 37 E.H.R.R. 28 at [97]. See also [100][103] and [123]; Buckley (1997) 23 E.H.R.R.
101 at [75]; and Taskin (2006) 42 E.H.R.R. 50 at [116]: in cases raising environmental issues the
State must be allowed a wide margin of appreciation.
152
The Court held that the Member State could legitimately consider the economic interests
of the country as a whole (Hatton (2003) 37 E.H.R.R. 28 at [121]) and that it had not disregarded
the applicants interests in the development of the scheme (at [125]): the avowed purpose of the
scheme was to keep noise disturbance at an acceptable level (at [125])), a number of additional
measures designed to keep noise down had been added since the Consultation Paper (at [126]);
and house prices had not been affected, meaning that the applicants were free to leave the area
(at [127]).
153
Taskin (2006) 42 E.H.R.R. 50 at [118].
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decision involved, the extent to which the views of individuals (including the applicants)
were taken into account throughout the decision-making procedure, and the procedural
safeguards available.154 More specifically:

Where a state must determine complex issues of environmental and economic


policy, the decision-making process must first involve appropriate investigations
and studies in order to allow them to predict and evaluate in advance the effects
of those activities which might damage the environment and infringe individuals
rights and to enable them to strike a fair balance between the various conflicting
interests at stake. The importance of public access to the conclusions of such studies
and to information which would enable members of the public to assess the danger
to which they are exposed is beyond question. Lastly, the individuals concerned
must also be able to appeal to the courts against any decision, act or omission where
they consider that their interests or their comments have not been given sufficient
weight in the decision-making process.155

Turkish authorities failed to satisfy these requirements when they refused to comply
with court decisions overturning their decision to allow sodium cyanide to be used in a
local mine; as the European Court held, the refusal deprived the procedural guarantees
available to the applicant of any useful effect.156 By contrast, no procedural flaws were
found in Hatton. The scheme had been preceded by a series of investigations and studies
carried out over a long period of time, applicants had had access to the consultation
paper and could have made representations if they felt it appropriate and were entitled
to challenge subsequent decisions or the scheme itself if those representations were not
taken into account.157

Category 4: Identity
So far, the aspects of the right to respect for private life identified in this articlethe
right to be free from interference with physical and psychological integrity, from
unwanted informational access and from environmental pollutionare consistent with
a negative, freedom from conception of the private life interest (even though in many
individual cases they concern positive obligations). With the exception of freedom from

154
Taskin (2006) 42 E.H.R.R. 50 at [118] and Hatton (2003) 37 E.H.R.R. 28 at [104].
155
Taskin (2006) 42 E.H.R.R. 50 at [119]. See also Hatton (2003) 37 E.H.R.R. 28 at [128]. However,
the Court has stressed that it does not follow from the obligation to conduct investigations that
decisions can only be taken if comprehensive and measurable data are available in relation to
each and every aspect of the matter to be decided (Taskin (2006) 42 E.H.R.R. 50 at [118] and
Hatton (2003) 37 E.H.R.R. 28 at [128]).
156
Taskin (2006) 42 E.H.R.R. 50 at [125] (see also [120][124]). See also Moreno Gomez (2005)
41 E.H.R.R. 40 at [61] where the Court held that a Member State cannot satisfy its positive
obligations simply by pointing to noise prevention measures it has taken if it has tolerated, and
thus contributed to, the repeated flouting of the rules which it itself had established during the
period concerned. Regulations to protect guaranteed rights serve little purpose if they are not
duly enforced . . .
157
Hatton (2003) 37 E.H.R.R. 28 at [128][129].
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68 The Right to Respect for Private Life in the European Convention on Human Rights

environmental pollution, they also overlap considerably with traditional private law
conceptions of privacy (a narrower concept than private life) and, in the case of
informational access, the English tort of breach of privacy. In contrast, the next two
categoriesthe freedom to develop ones identity and to live autonomouslyare part
of a broader conception of private life encompassing the interests of autonomy and
self-determination which have more in common with the US Supreme Courts broad
constitutional right to privacy158 than with concepts found in English private law.
Turning to the first of these freedoms to, the Court has consistently recognised that
aspects of an individuals physical and social identity159 and the right to identity
and personal development160 are protected by the right to respect for private life. A
number of interests fall within this category. Cases concerning the right to information
about ones parents and early development, to recognition of ones sexual and cultural
identity, and to change ones name will be discussed here.161

Information about ones parents and early development

The first way in which the Court protects identity is by imposing a positive obligation
on Member States to facilitate, in appropriate circumstances, access by individuals
to information about their childhood and early development. This means, first, that
authorities must implement appropriate procedures for allowing individuals who grew
up in care to access their social service records. This is because, as the Court said in
Gaskin v United Kingdom, such records contain information concerning highly personal
aspects of the applicants childhood, development and history which could constitute
[their] principal source of information about [their] past and formative years.162 (The
Court continued that limits could be placed on access to records to protect the anonymity
of contributors but they would only be proportionate if an independent body had the
final say if a contributor failed to respond or refused consent to access.)163
Article 8 also protects, at least to some extent, the right of individuals to know the
identity of their parents, the Court having recognised that such information forms
an important part of the childs own identity.164 It has held that there is a direct
link between the establishment of paternity and [an] applicants private life165 and
that Member States have positive obligations to provide adequate measures to resolve
paternity disputes efficiently and accurately so as to avoid prolonged uncertainty

158
See, e.g. Griswold v Connecticut 381 U.S. 479 (1965) and Roe v Wade 410 U.S. 113 (1973).
159
See Pretty (2002) 35 E.H.R.R. 1 at [61] and Van Kuck
(2003) 37 E.H.R.R. 51 at [69].
160
Bensaid v United Kingdom (2001) 33 E.H.R.R. 10 at [47]. See also Odievre v France (2003) 38
E.H.R.R. 43 at [29] and [O-IV11] and Peck (2003) 36 E.H.R.R. 41 at [57].
161
Because being able to express ones identity (e.g. as a homosexual, a gypsy or a post-
operative transsexual) often depends on ones ability to live ones life in a manner of ones
choosing, these interests also overlap with the right to live autonomously which will be discussed
in the next section.
162
Gaskin (1989) 12 E.H.R.R. 36 at [36]. See also MG v United Kingdom (2003) 36 E.H.R.R. 3 at
[27][28].
163
Gaskin (1989) 12 E.H.R.R. 36 at [49]. See also MG (2003) 36 E.H.R.R. 3 at [30][31].
164
Mikulic v Croatia (App. No.53176/99), judgment of February 7, 2002 at [64].
165
Mikulic (App. No.53176/99), judgment of February 7, 2002 at [55].
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as to . . . personal identity on the part of children.166 States have therefore breached


Art.8 by failing to compel a putative father to take a DNA test or to use some other
means to determine paternity speedily,167 by allowing a time limit to prevent a man
from establishing that he was not the father of his ex-wifes child,168 and by refusing to
recognise the biological father of a child who had been stillborn.169 As the Court stressed
in these cases, legal presumptions about paternity should not be allowed to prevail
over biological and social reality unless there is a good reason for them to do so.170
Article 8 will also be applicable if confidentiality rules surrounding birth and
adoption processes prevent individuals from discovering the identity of their birth
mother; the Court in Odievre v France held that [b]irth, and in particular the
circumstances in which a child is born, forms part of a childs, and subsequently
the adults, private life.171 However, the majority in that case also held that a
system which allowed complete anonymity for the mother throughout the birth and
adoption process struck a fair balance between the applicants right to private life and
competing interests because, inter alia, non-identifying information was provided to the
applicant,172 mothers could waive confidentiality if they wished to,173 and the measure
was designed to protect the interests of third parties and to ensure that women who
wished to preserve anonymity had an alternative to abortion and unofficial abandoning
and could protect [their] health by giving birth in appropriate medical conditions.174

The right to recognition of ones gender

The right to identity is also clearly at issue in cases concerning transsexuals rights
to gender identity and personal development.175 In I v United Kingdom, in which the
United Kingdom was held to have a positive obligation to amend birth registers to
reflect individuals post-operative genders, the Grand Chamber held that:

The stress and alienation arising from a discordance between the position in
society assumed by a post-operative transsexual and the status imposed by law
which refuses to recognise the change of gender cannot, in the Courts view, be
regarded as a minor inconvenience arising from a formality. A conflict between
social reality and law arises which places the transsexual in an anomalous position,
in which he or she may experience feelings of vulnerability, humiliation and
anxiety.176

166
Mikulic (App. No.53176/99), judgment of February 7, 2002 at [56][66], especially [66].
167
Mikulic (App. No.53176/99), judgment of February 7, 2002.
168
Shofman v Russia (2007) 44 E.H.R.R. 35.
169
Znamenskaya v Russia (2007) 44 E.H.R.R. 15.
170
See Shofman (2007) 44 E.H.R.R. 35 at [44]; Znamenskaya (2007) 44 E.H.R.R. 15 at [31]; and
Kroon v Netherlands (App. No.18536/91), judgment of October 27, 1994 at [40].
171
Odievre (2003) 38 E.H.R.R. 43 at [29].
172
Odievre (2003) 38 E.H.R.R. 43 at [48].
173
Odievre (2003) 38 E.H.R.R. 43 at [49].
174
Odievre (2003) 38 E.H.R.R. 43 at [44]. See also [45].
175
Van Kuck
(2007) 37 E.H.R.R. 51 at [75]. See also Pretty (2002) 35 E.H.R.R. 1 at [61].
176
I v United Kingdom (2003) 36 E.H.R.R. 53 at [57] and Goodwin (2002) 35 E.H.R.R. 18 at [77].
(These decisions overruled Rees (1987) 9 E.H.R.R. 56; Sheffield and Horsham v United Kingdom (1998)
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70 The Right to Respect for Private Life in the European Convention on Human Rights

Other protections have flowed from this obligation. For example, German domestic
courts breached Art.8 by requiring an applicant to prove the genuine nature of
her transsexuality in a hearing on reimbursement of medical expenses for gender
reassignment surgery. The domestic court had concluded, without any evidence and in
the face of a contradictory experts report, that the applicant had deliberately caused
her transsexuality by taking hormones and that psychotherapy might be adequate
treatment.177 The Court has also held that transsexuals pension rights must be assessed
on the basis of their post-operative gender.178

The right to retain ones name

The Court has held that a surname identifies a person in his or her private and family life
regarding the ability to establish and develop social, cultural or other relationships with
other human beings.179 Protection of it therefore clearly affects identity. Although
some regulation of the use of names is permitted,180 laws preventing married women
from continuing to use their maiden names without adding their husbands name to
them181 and preventing married men (but not married women) from combining their
surname with their spouses surname have been held to interfere with Art.8 when taken
with the anti-discrimination provision, Art.14.182 Arguments relating to tradition and
the preservation of family unity have failed to justify the gender-based difference of
treatment in these cases.183

Cultural identity and the right to live as a gypsy

Finally, Art.8 protects an individuals right to express ones identity as a gypsy by living,
at least to some extent, a traditional gypsy lifestyle. The Court has recognised that for
some applicants:

27 E.H.R.R. 163; and Cossey v United Kingdom (1990) 13 E.H.R.R. 622, in which the Court held that
the UK Government had no obligation to change the birth register system to reflect post-operative
gender (see I (2003) 36 E.H.R.R. 53 at [51][55] and Goodwin (2002) 35 E.H.R.R. 18 at [71][75]). See
also the successful claim in B v France (1992) 16 E.H.R.R. 1.
177
Van Kuck (2007) 37 E.H.R.R. 51 at [78][84]. The Court held that the domestic courts had
substituted the applicants views about her most intimate feeling and experiences with their own
on the basis of general assumptions as to male and female behaviour (at [81]).
178
Grant v United Kingdom (2007) 44 E.H.R.R. 1.
179
Unal Tekeli v Turkey (2006) 42 E.H.R.R. 53 at [35]. See also Burghartz v Switzerland [1994] 18
E.H.R.R. 101 at [24]; Stjerna v Finland [1994] 24 E.H.R.R. 195 at [37]; and Znamenskaya (2007) 44
E.H.R.R. 15 at [23].
180
e.g. a Member State did not breach its positive obligations under Art.8 by refusing to allow
an applicant to change his name to that of his distant ancestors for reasons of preference and
convenience (Stjerna [1994] 24 E.H.R.R. 195).
181
Unal Tekeli (2006) 42 E.H.R.R. 53.
182
Burghartz (1994) 18 E.H.R.R. 101.
183
See Unal Tekeli (2006) 42 E.H.R.R. 53 at [57][69] and Burghartz (1994) 18 E.H.R.R. 101 at
[27][29].
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. . . [O]ccupation of [their] caravan is an integral part of [their] ethnic identity


as a gypsy, reflecting the long tradition of that minority of following a travelling
lifestyle. This is the case even though . . . many gypsies no longer live a wholly
nomadic existence . . . Measures which affect . . . applicant[s] stationing of [their]
caravans . . . affect [their] ability to maintain [their] identity as a gypsy and to lead
[their] private and family life in accordance with that tradition.184

By reason of gypsies vulnerable position as a minority, Member States therefore


have a positive obligation to facilitate the gypsy way of life, at least to the extent of
giving special consideration to their needs and different lifestyle both when developing
regulatory frameworks and when making decisions in particular cases.185 This obligation
was not fulfilled where a Member State operated a statutory scheme permitting summary
eviction of an applicant and his family from a council caravan site without the burden
of giving reasons which could be examined by an independent tribunal.186 Measures
preventing an applicant from stationing her caravans on Green Belt land also breached
negative obligations arising under Art.8(1), although the interference was held to be
justified under Art.8(2) because it protected the rights of others by preserving the
environment.187

Category 5: Personal autonomy


Closely related to the right to ones development identity is the final aspect of
the right to respect for private life, the right to live autonomously. The Court has
recognised that the very essence of the Convention is respect for human dignity
and human freedom188 and that [t]he notion of personal autonomy is an important
principle underlying the interpretation of [Convention] guarantees.189 Although all
interferences with private life will affect autonomy to some extent,190 autonomy and
human freedom are central to cases concerning the right to develop sexual and familial
relationships and to exercise control over ones health and medical treatment. These
particular decisions will therefore be discussed here.

Development of relationships

The Convention right to respect for private life includes the right to establish and to
develop relationships with other human beings, especially in the emotional field for

184
Chapman v United Kingdom (2001) 33 E.H.R.R. 18 at [73].
185
Connors (2005) 40 E.H.R.R. 9 at [84].
186
The Government was unable to show that the measure was necessary to control anti-social
behaviour or that it benefited members of the gypsy community in any way (Connors (2005) 40
E.H.R.R. 9 at [89][95]).
187
Chapman (2001) 33 E.H.R.R. 18 at [98][115].
188
Pretty (2002) 35 E.H.R.R. 1 at [65].
189
Goodwin (2002) 35 E.H.R.R. 18 at [90] and I (2003) 36 E.H.R.R. 53 at [70]. See also Pretty
(2002) 35 E.H.R.R. 1 at [61] and Van Kuck
(2007) 37 E.H.R.R. 51 at [69].
190
e.g. unwanted physical or informational interference will be inconsistent with an
individuals right to determine when and by whom they are accessed.
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72 The Right to Respect for Private Life in the European Convention on Human Rights

the development and fulfilment of ones own personality.191 Respect for private life
must . . . [therefore] comprise to a certain degree the right to establish and develop
relationships with other human beings.192 This aspect of personal autonomy has been
expressly recognised in the case law.

Sexual activities

The freedom to develop ones relationships without interference includes the right to
develop sexual relationships and to engage in certain kinds of sexual activity.

a. homosexual activities

There can be no doubt that sexual orientation and activity concern an intimate aspect
of private life193 and criminal prohibitions on homosexual conduct therefore breach
Art.8.194 This continues to be the case even if the prohibitions are not enforced against
the applicant or if no proceedings have been brought in reliance on them in recent years.
The risk of a private prosecution or a change of enforcement policy always remains195
and, as the Court recognises:

. . . [T]he very existence of this legislation continuously and directly affects [an
applicants] private life: either he respects the law and refrains from engaging (even
in private with consenting male partners) in prohibited sexual acts to which he
is disposed by reason of his homosexual tendencies, or he commits such acts and
thereby becomes liable to criminal prosecution.196

191
X v Iceland (1976) 5 D. & R. 86 at 87. See also Botta v Italy (1998) 26 E.H.R.R. 241 at [32];
Rotaru (App. No.28341/95), judgment of May 4, 2000 at [43]; Pretty (2002) 35 E.H.R.R. 1 at [61];
Peck (2003) 36 E.H.R.R. 41 at [57]; and Niemietz (1992) 16 E.H.R.R. 97 at [29].
192
Niemietz (1992) 16 E.H.R.R. 97 at [29]. However, there are limits on this obligation. For
example, in Botta (1998) 26 E.H.R.R. 241, the Court held that the Member State did not have
a positive obligation to ensure that a disabled man could gain access to the beach during his
holidays at a resort a long way from his home. Such a right would concern[] interpersonal
relations of such broad and indeterminate scope that there [could] be no conceivable direct link
between the measures . . . and the applicants private life (at [35]).
193
Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39 at [36].
194
See, e.g. Dudgeon (1981) 4 E.H.R.R. 149 at [40][41]; ADT v United Kingdom (2001) 31 E.H.R.R.
33; Norris (1989) 13 E.H.R.R. 186; and Modinos v Cyprus (1993) 16 E.H.R.R. 485.
195
See Dudgeon (1981) 4 E.H.R.R. 149 at [41] and Norris (1989) 13 E.H.R.R. 186 at [33]. In
neither case was there official policy saying that the legislation in question would not be enforced
(Dudgeon (1981) 4 E.H.R.R. 149 [41] and Norris (1989) 13 E.H.R.R. 186 at [33]). Indeed, in Dudgeon
the applicant had himself been investigated in connection with the legislation ((1981) 4 E.H.R.R.
149 at [41]).
196
Dudgeon (1981) 4 E.H.R.R. 149 at [41]. See also ADT (2001) 31 E.H.R.R. 33 at [23][24];
Modinos (1993) 16 E.H.R.R. 485 at [23][24]; BB v United Kingdom (2004) 39 E.H.R.R. 30 at [25]; and
Norris (1989) 13 E.H.R.R. 186 at [33]: [o]ne of the effects of criminal sanctions against homosexual
acts is to reinforce the misapprehension and general prejudice of the public and increase the
anxiety and guilt feelings of homosexuals.
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The investigation and/or enforcement of professional sanctions against adult


homosexual activity also interferes with Art.8(1). For example, the United Kingdom
breached Art.8 by dismissing individuals from the armed forces on account of their
homosexuality and by carrying out intrusive investigations in connection with those
policies.197 (The investigations included the searching of personal belongings and
detailed interviews with the applicants and third parties about the applicants sexual
orientation and practices.198 )
Professional and criminal prohibitions of this nature have consistently failed to
satisfy Art.8(2).199 Although a broad margin of appreciation is usually applied in cases
involving morals, prohibitions on homosexuality are an exception.200 As the Court
has said, such prohibitions concern a most intimate aspect of private life and there
must therefore exist particularly serious reasons before interferences on the part of the
public authorities can be legitimate.201 Sufficiently serious reasons have not been
established because, as the Court said in Dudgeon:

. . . [S]uch justifications as there are for retaining the law in force unamended are
outweighed by the detrimental effects which the very existence of the legislative
provisions in question can have on the life of a person of homosexual orientation
like the applicant. Although members of the public who regard homosexuality as
immoral may be shocked, offended or disturbed by the commission by others of
private homosexual acts, this cannot on its own warrant the application of penal
sanctions when it is consenting adults alone who are involved.202

As well as breaching Art.8 itself, measures restricting homosexual activity often fall
foul of anti-discrimination protections in Art.14 (which operates in conjunction with
Art.8).203 In order to satisfy Art.14, applicants have to show that the measure in question
interfered with their right to private life under Art.8 and that the measure had no
objective and reasonable justification, that is . . . it does not pursue a legitimate aim
or . . . there is not a reasonable relationship of proportionality between the means

197
See Lustig-Prean and Beckett v United Kingdom (1999) 29 E.H.R.R. 548 (regarding dismissal
from the navy) and Smith and Grady (1999) 29 E.H.R.R. 493 (regarding dismissal from the air
force).
198
See Lustig-Prean and Beckett (1999) 29 E.H.R.R. 548, especially [64] and Smith and Grady
(1999) 29 E.H.R.R. 493, especially [71].
199
See, e.g. Dudgeon (1981) 4 E.H.R.R. 149; Lustig-Prean and Beckett (1999) 29 E.H.R.R. 548; Smith
and Grady (1999) 29 E.H.R.R. 493; and Norris (1989) 13 E.H.R.R. 186.
200
The Court has also stressed in this context that there is European consensus on the legality of
homosexuality and that even those States in which prohibitions are in force usually have policies
of non-enforcement (see Dudgeon (1981) 4 E.H.R.R. 149 at [60] and Norris (1989) 13 E.H.R.R. 186 at
[46]).
201
Dudgeon (1981) 4 E.H.R.R. 149 at [52]. See also Norris (1989) 13 E.H.R.R. 186 at [46] and
Smith and Grady (1999) 29 E.H.R.R. 493 at [90].
202
Dudgeon (1981) 4 E.H.R.R. 149 at [60]. See also Norris (1989) 13 E.H.R.R. 186 at [46].
203
Article 14 of the Convention provides that: The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
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74 The Right to Respect for Private Life in the European Convention on Human Rights

employed and the aim sought to be realised.204 Member States rarely establish an
objective and reasonable reason for discriminating against homosexual applicants. The
Court has stressed that differences based on sexual orientation require particularly
serious reasons by way of justification205 and that negative attitudes on the part of
a heterosexual majority against a homosexual minority cannot amount to sufficient
justification any more than similar negative attitudes towards those of a different race,
origin or colour.206 Narrow margins of appreciation will also apply. Thus, Member
States have consistently failed to provide an objective and reasonable justification for
different ages of consent for heterosexual and homosexual sex,207 particularly in the
face of the ever growing European consensus on the issue.208 However, a refusal to
authorise adoption by homosexuals was held not to be disproportionate even though it
interfered with the applicants private life and engaged Art.14.209

b. sado-masochism

It is unclear to what extent Art.8 protection will be extended to consensual sado-


masochistic activities. In Laskey v United Kingdom, both parties accepted that prosecution
and conviction for participation in a sado-masochism ring was an interference with
private life210 but the Court held that it could in fact be open to question whether

204
See Karner v Austria (2004) 38 E.H.R.R. 24 at [37].
205
Karner (2004) 38 E.H.R.R. 24 at [37].
206
SL v Austria (2003) 37 E.H.R.R. 39 at [44] and L and V v Austria (2003) 36 E.H.R.R. 55 at [52].
207
See Sutherland v United Kingdom (1997) 24 E.H.R.R. CD22; BB (2004) 39 E.H.R.R. 30; L and
V (2003) 36 E.H.R.R. 55; SL (2003) 37 E.H.R.R. 39; Ladner v Austria (App. No.18297/03), judgment
of February 3, 2005; Woditschka and Wilfling v Austria (2005) 41 E.H.R.R. 32; and Wolfmeyer v
Austria (2006) 42 E.H.R.R. 3. The argument that homosexual experiences in early adulthood might
compromise a males sexual development (which had at one stage been used to justify the
discrimination) has been discredited (see SL at [38][43]; L and V at [49][51]; and Sutherland at
[59][60]). Further, those prosecuted under age of consent provisions did not cease to be victims
simply because the provision had been repealed by the time that the Convention claim was heard:
a decision or measure favourable to the applicant is not in principle sufficient to deprive him of
his status as a victim unless the national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, the breach of the Convention (SL at [35]. See also L and
V at [43]; Woditschka and Wilfling at [24]; and Ladner at [22]). Likewise, it is inconceivable how
an acquittal without any compensation for damages and accompanied by the reimbursement of a
minor part of the necessary defence costs could have provided adequate redress for a Member
States breach of the Convention (Wolfmeyer at [33]).
208
SL (2003) 37 E.H.R.R. 39 at [42] and L and V (2003) 36 E.H.R.R. 55 at [50].
209
See Frette v France (2004) 38 E.H.R.R. 21. In reaching that conclusion, the Court emphasised
that the absence of a European consensus meant that Member States had a wide margin of
appreciation when addressing the issue and that French authorities were entitled to take account
of the interests of children eligible for adoption (see [30][33] and [38][43]). However, contrast
Karner v Austria (2004) 39 E.H.R.R. 24 where the Court said that although it could accept that
protection of family in the traditional sense might be a weighty and legitimate reason
justifying a difference in treatment in some cases, the Government had not shown that it was
necessary to exclude persons living in a homosexual relationship from tenancy succession rights
in order to achieve the aim of protecting those interests (see [40][41]).
210
Laskey, Jaggard and Brown (1997) 24 E.H.R.R. 39 at [35].
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the activities of a large sado-masochism ring (which included the recruitment of new
members, the provision of several specially-equipped chambers, and the shooting
of video-tapes which were distributed among the members) fell entirely within the
notion of private life in the particular circumstances of the case.211 The Court said
that not every sexual activity carried out behind closed doors necessarily falls within
the scope of article 8.212 However, sexual activity does not automatically cease to be
a part of a persons private life because it involves more than two people213 and there
seems to be no reason why a Member State cannot be left to rely on Art.8(2) to justify
sanctions against consensual sexual activity. The Court has held that, in spite of the
traditionally strict approach to Art.8(2) where sexual activities are concerned, at some
point, sexual activities can be carried out in such a manner that State interference may
be justified.214 It has therefore held that Member States are:

. . . [U]nquestionably entitled to . . . seek to regulate, through the operation of


the criminal law, activities which involve the infliction of physical harm. This
is so whether the activities in question occur in the course of sexual conduct or
otherwise.215

The right to maintain and to end familial and other relationships

Deportation measures which disrupt familial and other relationships are usually dealt
with under the Art.8 right to respect for family life216 but can also breach the right
to respect for private life. For example, the deportation of an entire family was held
to interfere with respect for home and private life (but not family life) because the
applicants had to leave behind their flat and their network of social, personal and
economic relations even though no dependent or core family members were to
remain.217 The right to end spousal relationships also enjoys some protection under

211
Laskey, Jaggard and Brown (1997) 24 E.H.R.R. 39 at [36]. Indeed, in his concurring opinion
Judge Pettiti said that Art.8 was not even applicable in the instant case (at [61]).
212
Laskey, Jaggard and Brown (1997) 24 E.H.R.R. 39 at [36].
213
See ADT (2001) 31 E.H.R.R. 33 at [25] and [34][37] where the Court held that sexual
activities remained part of the applicants private life even though up to four other men were
involved in them and the activities were recorded on video.
214
ADT (2001) 31 E.H.R.R. 33 at [37] (although ADT was not such a case (see [37][38])). See
also Dudgeon (1981) 4 E.H.R.R. 149 at [49].
215
Laskey, Jaggard and Brown (1997) 24 E.H.R.R. 39 at [43]. The fact that the applicants sado-
masochistic activities involved a significant degree of injury or wounding which could not be
characterised as trifling or transient contributed to the Courts decision that the applicants
convictions were justified under Art.8(2) (at [45]). Although they will not be discussed in this
section, the cases imposing positive obligations on Member States to protect individuals from
interference with their sexual lives by others should also be recalled in this context (see pp.5051
above).
216
See, e.g. Mokrani v France (2005) 40 E.H.R.R. 5; Yildiz v Austria (2003) 36 E.H.R.R. 32; and
Yilmaz v Germany (2004) 38 E.H.R.R. 23.
217
Slivenko v Latvia (2004) 39 E.H.R.R. 24 at [96][97]. See also Jakupovic v Austria (2004) 38
E.H.R.R. 27 and Radovanovic v Austria (2005) 41 E.H.R.R. 6 (the deportation of family members was
held to be a breach of both private life and family life). In a different context, in Pannullo and
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76 The Right to Respect for Private Life in the European Convention on Human Rights

Art.8. A refusal to grant legal aid for judicial separation proceedings has been held to
contravene the positive obligation to make available the means of separating from ones
husband.218

The right to know about and control health and medical interventions
Autonomy is also central to decisions concerning medical self-determination. Three
types situations have been considered in Strasbourg: those where applicants have been
forced to undergo medical procedures, those where they have sought information about
health risks to which they have been exposed, and those where they have been denied
access to medical procedures.

Forced medical procedures

Member States will clearly undermine medical self-determination and autonomy (as
well as the right to moral and psychological integrity discussed above) if they force an
individual to undergo a medical procedure. (The relevant cases were discussed in the
physical and psychological integrity section above.)219

Providing information about health risks

Medical self-determination and autonomy are also at issue in cases where an applicant
has been denied access to information about health risks to which he or she might have
been exposed. Member States have a positive obligation to provide this information in
some circumstances. For example, in the environmental context, failure on the part of
Government to inform citizens about the risks associated with the operation of a local
chemical factory was held to be a breach of positive obligations under Art.8. Article 8
was applicable because of the direct effect of the toxic emissions on the applicants
right to respect for their private and family life220 and it was breached because, despite
the existence of a Government report confirming the danger, national authorities failed
to take the necessary steps to ensure the effective protection of the applicants Art.8
rights.221 Likewise, the United Kingdom breached its positive obligations to former
military personnel by failing to provide an effective and accessible procedure for
accessing all relevant and appropriate information about risks to which they were
exposed during nuclear and chemical testing.222 The Court held that:

Forte v France (2003) 36 E.H.R.R. 42 all parties accepted that a seven-month delay in returning the
body of the applicants two-year-old daughter following a post-mortem examination amounted
to an interference with their right to both respect for private and family life (at [34]).
218
Airey (1979) 2 E.H.R.R. 305 at [32][33].
219
See p.50 above.
220
Guerra (1998) 26 E.H.R.R. 357 at [57].
221
Guerra (1998) 26 E.H.R.R. 357 at [58][60], especially [58]. See also Oneryildiz (2004) 39
E.H.R.R. 12 at [87] where authorities were held to have breached positive obligations under the
Art.2 right to life by failing to warn slum residents of known risks posed by a nearby rubbish
dump.
222
McGinley and Egan v United Kingdom (1998) 27 E.H.R.R. 1 at [101] and Roche v United Kingdom
(2006) 42 E.H.R.R. 30 at [162].
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Article N.A. Moreham 77

Where a Government engages in hazardous activities . . . which might have hidden


adverse consequences on the health of those involved in such activities, respect
for private and family life under Article 8 requires that an effective and accessible
procedure be established which enables such persons to seek all relevant and
appropriate information.223

As it recognised, access to the information could either have allayed the applicants
fears . . . or enabled them to assess the danger to which they had been exposed.224 A
refusal to provide the information therefore adversely affected their private lives.

Access to medical procedures

Applicants have argued, with limited success, that it is a breach of Art.8 not only to
force individuals to undergo medical procedures they do not want but also to deny
them access to medical procedures which they do want. The question of individual
autonomy is central to these decisions.

a. The right to begin and to end a pregnancy

The argument that Member States should provide access to certain medical procedures
has been made, first, in connection with an applicants right to begin and end a
pregnancy. The Court has held that private life incorporates the right to respect for
both the decisions to become and not to become a parent.225 However, the United
Kingdom was held not to have breached its positive obligations by adopting an absolute
rule that either party to IVF treatment could withdraw consent up to the point at
which the embryos are implanted even though it meant that the applicants exceptional
circumstances could not be considered in the case in question (she had lost both
ovaries to cancer after the fertilisation process had taken place and therefore had no
other means of having a genetically-related child).226 There was also no breach when
English authorities denied a woman, whose husband was in prison for murder, access
to artificial insemination facilities.227 In both cases, the Member State was held to have
struck an appropriate balance between the competing interests.228

223
McGinley and Egan (1998) 27 E.H.R.R. 1 at [101]. The unsystematic and uncomprehensive
disclosure of medical records will not satisfy these requirements (see Roche (2006) 42 E.H.R.R.
30 at [166][169]). However, they can be satisfied by disclosure procedures associated with the
litigation process if the applicants sought the information in connection with a litigated dispute
(McGinley and Egan [102]). However, the existence of the litigation disclosure process will not
satisfy the claims of an applicant who is not involved in litigation: it is an obligation of disclosure
. . . not requiring the individual to litigate to obtain it (Roche at [165]).
224
McGinley and Egan (1998) 27 E.H.R.R. 1 at [97]. See also Roche (2006) 42 E.H.R.R. 30 at [155].
225
Evans (App. No.6339/05), judgment of April 10, 2007 at [71].
226
Evans (App. No.6339/05), judgment of April 10, 2007, especially [83][92].
227
Dickson v United Kingdom (2007) 44 E.H.R.R. 21, especially [26][40].
228
e.g. in Dickson (2007) 44 E.H.R.R. 21 the Court stressed that the authorities took into account,
inter alia, the seriousness of the husbands crime and the welfare of any child born (at [38]).
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78 The Right to Respect for Private Life in the European Convention on Human Rights

The status of embryos and foetuses for the purposes of abortion is usually addressed
under the right to life protected by Art.2,229 however, in Bruggeman and Scheuten v
Germany, the applicants argued that restrictions on the circumstances in which they
could abort unwanted pregnancies after 12 weeks interfered with their private lives.230
The Commission rejected this argument on the basis that pregnancy cannot be said
to pertain uniquely to the sphere of private life. Whenever a woman is pregnant,
her private life becomes closely connected with the developing foetus.231 It said that
Art.8(1) could not be interpreted as meaning that pregnancy and its termination are as a
matter of principle solely a matter of the private life of the mother and that not every
regulation of the termination of unwanted pregnancies constitutes an interference with
the right to respect for the private life of the mother.232 However, the requirement that
an Art.8 interest must pertain uniquely to or be solely a matter of the private life of
the applicant has not been applied in other private life cases (indeed, cases concerning
relationships and/or sexual activity seem inconsistent with it) and it is not clear why it
should be introduced here.233 More attractive is Mr J.E.S. Fawcetts dissenting view that
there are no inherent limits on the degree to which pregnancy and its termination are
part of private life and that such limits (at least in the form of legislation) should only
be imposed if they can be justified under Art.8(2),234 presumably with a broad margin
of appreciation.

c. euthanasia

Applicants have also complained that criminal sanctions against assisted suicide
interfere with their autonomy and hence, the right to respect for private life. It is
in this context that the Court first recognised, in Pretty v United Kingdom, that the
notion of personal autonomy is an important principle underlying the interpretation of
[Art.8] guarantees235 and that:

The very essence of the Convention is respect for human dignity and human
freedom. Without in any way negating the principle of sanctity of life under the

229
See Vo v France (2005) 40 E.H.R.R. 12.
230
Bruggeman
and Scheuten v Federal Republic of Germany (1977) 3 E.H.R.R. 244. They claimed that
these restrictions compelled them to renounce sexual intercourse, apply methods of contraception
or carry out a pregnancy against their will (at [50]).
231
Bruggeman
and Scheuten (1977) 3 E.H.R.R. 244 at [59].
232
Bruggeman
and Scheuten (1977) 3 E.H.R.R. 244 at [61] (italics in the original).
233
Indeed, it is difficult not to conclude that this reasoning was motivated, at least in part, by
a desire to avoid the difficult questionwhich the Commission said it did not have to decideof
whether the unborn child [was] to be considered as life in the sense of Article 2. . . or, whether
it could be regarded as an entity which under Article 8(2) could justify an interference for the
protection of others (Bruggeman
and Scheuten (1977) 3 E.H.R.R. 244 at [60]).
234
Bruggeman
and Scheuten (1977) 3 E.H.R.R. 244 at [1] (dissent). He said that although
pregnancy brings with it responsibilities, it would be hard to envisage more essentially private
elements in life than pregnancy and its commencement and termination (at [1] (dissent)).
235
Pretty (2002) 35 E.H.R.R. 1 at [61].
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Article N.A. Moreham 79

Convention, the Court considers that it is under Art.8 that notions of the quality of
life take on significance.236

It continued that:
. . . [T]he ability to conduct ones life in a manner of ones own choosing may
also include the opportunity to pursue activities perceived to be of a physically
or morally harmful or dangerous nature for the individual concerned . . . even
where the conduct poses a danger to health, or arguably, where it is of a life-
threatening nature, the case-law of the Convention institutions has regarded the
States imposition of compulsory or criminal measures as impinging on the private
life of the applicant . . .237

It followed that the Court was not not prepared to exclude the possibility that
sanctions preventing the applicant from choosing to avoid what she considered an
undignified and distressing end to her life were an interference with Art.8(1).238 The
sanctions were, however, held to be necessary in a democratic society for the protection
of others. Member States are entitled to use the criminal law to regulate activities
which are detrimental to the life and safety of others239 and, because the sanctions were
designed to safeguard life by protecting the weak and vulnerable240 and included a
measure of flexibility in enforcement and adjudication,241 the blanket ban on assisted
suicide was held not to be disproportionate.

Conclusion
It is clear from this analysis that the right to respect for private life in Art.8 of the
Convention extends well beyond traditional private law conceptions of privacy. Indeed,
five categories of right can be identified from within itthe right to be free from
interference with physical and psychological integrity, from unwanted access to and
collection of information and from serious environmental pollution, and the right to be
free to develop ones identity and to live ones life in the manner of ones choosing.
English courts will therefore have to continue to navigate uncharted waters when
developing both common law and HRA jurisprudence if the United Kingdom is to
avoid liability in Strasbourg in the future. Discussion of how the courts should do this
is beyond the scope of this article but it is clear that in its current form the common
law privacy action cannot protect all aspects of the private life interest. It is hoped
that the margin of appreciation will provide appropriate leeway for English courts as
they develop both this common law action and their HRA jurisprudence in response to
direction from Strasbourg in the future.

236
Pretty (2002) 35 E.H.R.R. 1 at [65].
237
Pretty (2002) 35 E.H.R.R. 1 at [62].
238
Pretty (2002) 35 E.H.R.R. 1 at [67].
239
Pretty (2002) 35 E.H.R.R. 1 at [74].
240
Pretty (2002) 35 E.H.R.R. 1 at [74].
241
Pretty (2002) 35 E.H.R.R. 1 at [76].
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De minimis non curat the European
Court of Human Rights: The
Introduction of a New Admissibility
Criterion (Article 12 of Protocol No.14)
Xavier-Baptiste Ruedin
M.Jur. (Oxon), Attorney at law (Switzerland)*

Admissibility criteria; De minimis; European Court of Human Rights; Legal maxims

Protocol No.14, amending the ECHR, introduces a new limitation to the right of individual
petition to the European Court of Human Rights. According to Art.12 of Protocol No.14
(Art.35(3)(b) ECHR), the Court shall declare inadmissible any individual application if it
considers that the applicant has not suffered a significant disadvantage. In other words,
Protocol No.14 incorporates the maxim de minimis non curat praetor into the text of the
ECHR. However, as at least the spirit of the maxim was already present in the case law
of the Court, the introduction of this new admissibility criterion should not be considered
as a significant shift in the philosophy of European human rights protection. The notion
of significant disadvantage will have to be interpreted by the Court, which might find
some guidance in domestic judgments concerning the application of the maxim. Even if the
domestic case law is often divergent and difficult to rationalise, the factors that domestic
courts recurrently consider when dealing with de minimis issues could be useful tools for
the European Court.

Introduction
Since the end of the 1980s, the number of individual applications to the European Court
of Human Rights has grown exponentially. Whereas 4,923 applications were introduced
in 1989, their number steadily increased reaching 9,759 in 1993, 18,164 in 1998, 30,069 in
2000, 38,810 in 2003 and finally 51,318 in 2006.1 In order to guarantee the effectiveness
of the system of the European Convention on Human Rights (ECHR)2 in the long term,
Protocol No.14 to the Convention for the Protection of Human Rights and Fundamental

*
I would like to thank Dr Liora Lazarus and Gerard H. Kelly for their valuable comments.
1
European Court of Human Rights, Annual Report 2006, p.110; Survey of activities 2006,
p.47, http://www.echr.coe.int [Accessed January 2, 2008].
2
Convention for the Protection of Human Rights and Fundamental Freedoms (1950; CETS
No.005; ECHR). The articles of the ECHR quoted in this paper refer to the ECHR as amended by
Protocol No.11 and Protocol No.14.
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Article Xavier-Baptiste Ruedin 81

Freedoms, amending the control system of the Convention3 was adopted on May 13,
2004.
One of the main innovations of Protocol No.14 is the introduction of a new
admissibility criterion. According to Art.12 of Protocol No.14 (Art.35(3)(b) ECHR):

The Court shall declare inadmissible any individual application submitted under
Art.34 if it considers that: b. the applicant has not suffered a significant disadvantage,
unless respect for human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that
no case may be rejected on this ground which has not been duly considered by a
domestic tribunal.
This admissibility criterion was introduced to give the Court more flexibility in the
admission of applicationsin order to enable a more rapid disposal of unmeritorious
cases in the long termand to give the Court the possibility to concentrate its resources
on the most important cases.4
According to the preparatory work for Protocol No.14, the new admissibility
requirement of Art.35(3)(b) ECHR (Art.12 of Protocol No.14) is an application of the
ancient maxim de minimis non curat praetor within the framework of the judicial control
mechanism of Strasbourg.5 Before considering the maxim in the context of European
(international) human rights law, as it is necessary to understand its meaning in its
original (national) environment, the first part of the present studywithout having the
ambition of giving a comprehensive overview of the application of the maximwill
analyse its functioning at the domestic level, try to define the factors that are commonly
used by courts (when faced with the maxim), and try to assess whether the maxim can
be rationalised in a theory that would be applicable in all areas of law.
Using the tools derived from the analysis of domestic law (factors, theory), the second
part will, first, analyse the suitability of the application of the maxim in the framework

3
CETS No.194.
4
Frank Schurmann,
Das Protokoll Nr. 14 zur EMRK: Jungste

Anderungen im Strassburger
Kontrollmechanismus in Annuaire suisse de Droit europeen 2003 (Berne: Stampfli, 2004), p.69,
pp.7374; Frederic Vanneste, A New Inadmissibility Ground in Paul Lemmens and Wouter
Vandenhole (eds), Protocol No.14 and the Reform of the European Court of Human Rights
(Antwerp/Oxford: Intersentia 2005), p.69, p.76; Philippe Boillat, Le Protocole no 14 : les enjeux
de la reforme 44 Petites affiches (2 mars 2006) 6, 8.
5
Steering Committee for Human Rights (CDDH), Guaranteeing the long-term effective-
ness of the European Court of Human Rights (April 8, 2003) CM(2003)55 Proposition B.4,
https://wcd.coe.int/ViewDoc.jsp?id=25033&BackColorInternet=DBDCF2&BackColorIntranet=FDC864
&BackColorLogged=FDC864 [Accessed December 20, 2007]; Assemblee Nationale (Martine Auril-
lac), N 2872 - Rapport fait au nom de la commission des affaires e trang`eres sur le projet de loi
n 2788, autorisant lapprobation du protocole n 14 a` la convention de sauvegarde des droits
de lhomme et des libertes fondamentales, amendant le syst`eme de controle de la convention
(February 21, 2006), p.15, http://www.assemblee-nationale.fr/12/rapports/r2872.asp [Accessed Decem-
ber 20, 2007]; Patrick Wachsmann, Droit de recours individuel et protection de la fonction
jurisprudentielle de la Cour [2002] RUDH 309, 310; Marie-Aude Beernaert, Protocol 14 and
New Strasbourg Procedures: Towards Greater Efficiency? And at what Price [2004] E.H.R.L.R.
544, 551.
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82 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

of the ECHR. Does the system of the ECHR exclude the possibility that trivial cases exist
when human rights violations are at stake? Is the introduction of a new admissibility
criterion incorporating the maxim into the text of the ECHR inappropriate? One should
bear in mind that the new admissibility condition is one of the most controversial
points of Protocol No.14.6 The Parliamentary Assembly of the Council of Europe, in
its Opinion No.251 (2004), declared that it could not accept the proposal to add a new
admissibility criterion because of its vagueness, subjectivity and because it was likely to
create serious injustice and would exclude only 1,6 % of existing cases.7 Secondly, the
new admissibility criterion (including the two safeguard clauses that it contains) will
be analysed and interpreted. As Protocol No.14 is not yet in force, one can only make
suppositions about the interpretation that the Court will give to it. Therefore, this study
focuses on the general principles that should guide the Court rather than the possible
application of this criterion by the Court.

The maxim de minimis non curat praetor in domestic law


In general

Although it is doubtful that Roman civil process law knew the formula de minimis
non curat praetor and that trivial matters were generally excluded before the praetor,
the origins of the maxim seem to lie in Roman law, for instance in Justinians Digest
(D.4.I.4)8 :

Scio illud a quibusdam obseruatum, ne propter satis minimam rem uel summam, si
maiori rei uel summae praeiudicetur, audiatur is qui in integrum restitui postulat (I know
that it has been the practice of some magistrates not to hear a person who asks
for restitutio in integrum in respect of a very trivial matter or sum, if this would
prejudice a claim in respect of a more substantial matter or sum).9

The idea of the maxim would be related to the prestige of the functions of the praetor,
whoapart from his judiciary functionshad the power to convene the Senate or to

6
Schurmann,
Das Protokoll Nr. 14, p.73; Vincent Berger, Le prejudice important selon le
Protocole No 14 a` la Convention Europeenne des Droits de lHomme. Questions et reflexions in
Marcelo G. Kohen (ed), Promoting justice, human rights and conflict resolution through international
law: liber amicorum Lucius Caflisch (Leiden: Martinus Nijhoff, 2007), p.81.
7
Parliamentary Assembly, Draft Protocol No.14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Convention
(April 28, 2004) Opinion No.251 (2004), para.11, http://assembly.coe.int/Documents/AdoptedText/ta04/
EOPI251.htm [Accessed December 20, 2007].
8
Erwin Seidl, Zur Gerichtsverfassung in der Provinz Agypten bis ca. 250 n. Chr. (1965) 11
Labeo Rassegna di diritto romano 316, 319; Max Kaser and Karl Hackl, Das romische Zivilprozessrecht
2nd edn (Munich: C.H. Becksche Verlagsbuchhandlung, 1996), p.422, fn.8; Max L. Veech and
Charles R. Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 538; Peter
Forstmoser, Einfuhrung
in das Recht 3rd edn (Berne: Stampfli, 2003), 6, para.117.
9
Theodor Mommsen, Paul Krueger and Alan Watson (eds), The Digest of Justinian, Vol. I
(Philadelphia: University of Pennsylvania Press, 1985), p.112. See also D.4.III.9-11 (pp.121122).
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Article Xavier-Baptiste Ruedin 83

command an army. Consequently, the praetor should not be bothered by details of


dissensions of quotidian public or private life.10
Understood as the expression of common sense, the principle de minimis non curat
praetor developed into a generally invoked and recognised maxim,11 which is present in
common law as well as in civil law jurisdictions and permeates all areas of law (private,
criminal and public).12 It is variously stated and translated : de minimis non curat praetor
or minima non curat praetor (in civil law countries; the praetor does not occupy himself
with petty matters or the court does not concern himself with trifles), de minimis non
curat lex (in common law countries; the law does not concern itself with trifles, the law
takes no account of trifles or the law does not regard trifles), de minimis non curat rex (the
king does not care about trivial matters) or finally shortened to de minimis.13
In common law, the earliest appearance of the maxim in reported English cases can
seemingly be situated, in 1431, in York v York14 and, in 1594, in Taverner v Cromwell.15 In
1818, Sir Walter Scott (later Lord Stowell) explained the rationale and operation of the
maxim in the case of The Reward:

The Court is not bound to a strictness at once harsh and pedantic in the application
of statutes. The law permits the qualification implied in the ancient maxim De
minimis non curat lex.Where there are irregularities of very slight consequence,
it does not intend that the infliction of penalties should be inflexibly severe. If the
deviation were a mere trifle, which, if continued in practice, would weigh little or
nothing on the public interest, it might properly be overlooked.16

10
Philippe Schweizer, De minimis curabat ille praetor in Olivier Guillod and Philippe
Schweizer (eds), Instants dinstances: Melanges Jean Hoffmann (Marin-Epagnier: Pierre Aubert
Diffusion, 1992), pp.123, 124; Jean Hetu, De minimis non curat praetor : une maxime qui a toute
son importance ! [1990] 50 Rev. Barreau Quebec 1065; Henri Roland and Laurent Boyer, Adages du
droit francais 4th edn (Paris: Litec, 1999), p.150.
11
Schweizer, De minimis curabat ille praetor, p.124; Jean Carbonnier, De Minimis. . . in
Melanges dedies a` Jean Vincent (Paris: Dalloz, 1981), pp.2930.
12
The venerable maxim de minimis non curat lex . . . is part of the established background
of legal principles against which all enactments are adopted, and which all enactments (absent
contrary indication) are deemed to accept (Wisconsin Dept of Revenue v William Wrigley, Jr, Co 505
U.S. 214, 231 (U.S.Wis. 1992)). Hetu, De minimis non curat praetor [1990] 50 Rev. Barreau Quebec
1065; Frederick G. McKean, Jr, De Minimis Non Curat Lex [1927] 75 University of Pennsylvania
Law Review and American Law Register 429, 435, 441; Veech and Moon De Minimis Non Curat
Lex [1947] 45 Michigan Law Review 537, 542543; Andrew Inesi, A Theory of De Minimis and A
Proposal For Its Application in Copyright [2006] 21 Berkeley Technology Law Journal 945, 948949;
Jeff Nemerofsky, What is a Trifle Anyway? [200102] 37 Gonzaga Law Review 315, 324; Roland
and Boyer, Adages du droit francais, p.151. Concerning de minimis in German law, see Thomas Buss,
De minimis non curat lex [1998] 6 Neue Juristische Wochenschrift 337344.
13
Bryan A. Garner (ed), Blacks Law Dictionary 8th edn (St Paul: Thomson West, 2004), p.464;
Veech and Moon De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 537538; Inesi,
A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 947948; Nemerofsky,
What is a Trifle Anyway? [200102] 37 Gonzaga Law Review 315, 315316.
14
York v York Y.B. 9 Henry 6, p. 66 b (1431), 22 Viners Abridgement 458 (1745).
15
Taverner v Cromwell Cro. Eliz. 353, 78 E.R. 601 (1594).
16
The Reward 2 Dods. 265, 269270, 165 E.R. 1482, 1484 (1818).
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84 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

The purpose of the maxim is therefore:

. . . [T]o allow the courts to relieve persons who have technically breached a
statute from liability under that statute. Where there are irregularities of a very
slight consequence and the judicial policy has been that the statute did not intend
that the infliction of penalty should be inflexibly severe and, further, if the deviation
were a mere trifle, the doctrine allows the court to overlook a technical breach of
the statute.17

In other words, if a statute is expressed to apply to matters of a certain description, it


will not apply where the description is satisfied only to a very small extent, where the
effect of the violation of the letter of the law is too small to be of consequence. In sum,
the purpose of the maxim is to inject reason into technical rules of law and to round-off
the sharp corners of our legal structure.18
After these theoretical statements, in order to illustrate the functioning of the maxim
in practice, it might be useful to present in detail two cases before entering into the
analysis of the different factors that influence the application of de minimis.
The first case concerns labour law. In Anderson v Mt Clemens Pottery Co,19 the Supreme
Court of the United States addressed the issue of the maxim. In that case, employees
introduced an action against their employer to recover unpaid minimum wages or
unpaid overtime compensation under the Fair Labor Standards Act of 1938 (s.16(b)).20
The Supreme Court considered that the employees had to be on the premises for some
time prior and subsequent to the scheduled working hours, during which they punched
in, walked to their work benches and performed preliminary activitiessuch as putting
on aprons, preparing the equipment for productive work. Such time was pursued
necessarily and primarily for the benefit of the employer and should in principle be
accorded appropriate compensation.21 The Supreme Court then considered the issue of
de minimis non curat lex:

We do not, of course, preclude the application of a de minimis rule where the


minimum walking time is such as to be negligible. The workweek contemplated
by s 7(a) must be computed in light of the realities of the industrial world. When
the matter in issue concerns only a few seconds or minutes of work beyond the
scheduled working hours, such trifles may be disregarded. Split-second absurdities
are not justified by the actualities of working conditions or by the policy of the Fair
Labor Standards Act. It is only when an employee is required to give up a substantial
measure of his time and effort that compensable working time is involved. The de
minimis rule can doubtless be applied to much of the walking time involved in this

17
Alan W. Mewett and Morris Manning, Mewett & Manning on Criminal Law 3rd edn
(Toronto/Vancouver: Butterworths, 1994), p.544.
18
Veech and Moon De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 543544.
See also Nemerofsky, What is a Trifle Anyway? [200102] 37 Gonzaga Law Review 315, 323324.
19
Anderson v Mt Clemens Pottery Co 328 U.S. 680 (U.S. 1946).
20
29 U.S.C.A. s.216(b).
21
Mt Clemens 328 U.S. 680, 690691 (U.S. 1946).
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case, but the precise scope of that application can be determined only after the trier
of facts makes more definite findings as to the amount of walking time in issue.22

Concerning the preliminary activities, the Supreme Court stated that it was appropriate
to apply a de minimis doctrine so that insubstantial and insignificant periods of time
spent in preliminary activities need not be included in the statutory workweek.23
Consequently, the Supreme Court remanded the case:

. . . [F]or the determination of the amount of walking time involved and the
amount of preliminary activities performed, giving due consideration to the de
minimis doctrine and calculating the resulting damages under the Act.24

The District Court to which the case was remanded considered that the maximum
walking time that could be reckoned in favour of any plaintiff was 6.2 minutes daily
and that the total sum for preliminary activities of any plaintiff would be less than 3
minutes a day.25 As regards the admonishment of the Supreme Court that the decision
should be made in the light of the realities of the industrial world, the District Court
said:

We believe that in light of the realities of the industrial world means that our
decision should, if consistent with law, aid in promoting accord and not inciting
discord, and that we should treat industry fairly while granting labor all its rights.
We believe that in light of the realities of the industrial world means that without
labor there would be no industry, and without industry there can be no labor.26

In the light of the realities of the industrial world and after a review of the case law on
the application in labour law of the de minimis rule, the District Court found that the
walking and preliminary activities time involved in the case was de minimis.27
The second case concerns criminal law. In R. v Webster,28 the accused had been
charged for having parked his car in an area in which parking was prohibited from
November 1 to March 31. The purpose of the prohibition was to facilitate snow removal
from the street. The accused argued that the facts had happened only eight days from
the expiry date of the seasonal by-law and that there was no snow on the ground.
Moreover, it was a Sunday and the respondent would not have parked there if he had
been aware of the prohibition. After an analysis of the case law on the maxim, the
Court considered the submissions of counsel for the appellant in which he stated that
three different considerations can bring courts to apply the de minimis maxim: (a) the

22
Mt Clemens 328 U.S. 680, 692 (U.S. 1946).
23
Mt Clemens 328 U.S. 680, 693 (U.S. 1946).
24
Mt Clemens 328 U.S. 680, 694 (U.S. 1946).
25
Anderson v Mt Clemens Pottery Co 69 F.Supp. 710, 716, 719 (D.C. Mich. 1947).
26
Mt Clemens 69 F.Supp. 710, 722 (D.C. Mich. 1947).
27
Mt Clemens 69 F.Supp. 710, 718, 719, 722 (D.C. Mich. 1947).
28
R. v Webster [1981] O.J. No.2455, 15 M.P.L.R. 60, 10 M.V.R. 310 (Ontario District Court 1981).
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intentions of Parliament in enacting statutes29 ; (b) the common sense of justice30 ; and
(c) the Courts desire to protect an accused from a conviction for what is usually
regarded a very serious offence, with the resulting sentence and criminal record, where
the facts of the case disclose a very minor infraction (protection from the stigma of
a criminal conviction).31 Applying these criteria, the Court held that a conviction of
the accused (a) would not further the intention and purpose of the council byelaw to
facilitate snow removal, (b) would be artificial and divorced from reality and an
absurdity and bring the administration of justice into ridicule and contempt, even if
(c) the monetary punishment was minimal (a refusal to pay the fine might nevertheless
have resulted in the accused going to jail).32
Both cases exemplify the richness and complexity of the arguments used by courts in
order to justify the application or the non-application of the de minimis maxim.

Factors considered in applying the maxim

Although the application of the maxim is not easy to rationalise,33 at least


some factorswhich are usually used in combination with one anothercan be
individualised and used as guidelines when a de minimis issue arises.

29
In a number of the cases in which de minimis was invoked, the Courts held that the
conviction of an accused for a mere trace of drugs or alcohol would not be in accordance with
Parliaments intentions or objectives in passing the statute in question. (Webster [1981] O.J.
No.2455 at [21]). For a review of the case law concerning the application of the maxim in drug
cases, see R. v Brett 21 C.C.C. (3d) 353 (British Columbia County Court 1985). Concerning alcohol
prohibition, see United States v Mulkis 39 F. 2d 664 (D.C. Wash. 1930). See also Mewett & Manning
on Criminal Law, pp.544550.
30
The Courts attempt to avoid findings of technical guilt where a conviction would be . . . an
absurdity, fantastic or artificial and divorced from reality, particularly . . . where the liberty of
the subject is at stake. (Webster [1981] O.J. No.2455 at [21]).
31
Webster [1981] O.J. No.2455 at [21].
32
Webster [1981] O.J. No.2455 at [30]. See also the dissent of Justice Arbour in Canadian
Foundation for Children, Youth and the Law v Canada (Att Gen) [2004] 1 S.C.R. 76, [2004] S.C.J. No.6,
2004 SCC 4 (Supreme Court of Canada 2004) at [203][204] (in this case, the appellant sought
a declaration that s.43 of the Criminal Codewhich justified the reasonable use of force by
way of correction by parents and teachers against children in their careviolated the Canadian
Charter of Rights and Freedoms): The defence of de minimis does not mean that the act is
justified; it remains unlawful, but on account of its triviality it goes unpunished . . .. Generally, the
justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to
serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from
the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being
swamped by an enormous number of trivial cases. . . . In part, the theory is based on a notion that
the evil to be prevented by the offence section has not actually occurred. This is consistent with
the dual fundamental principle of criminal justice that there is no culpability for harmless and
blameless conduct.
33
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537.
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Value

Value or the size of the harm done by the violation of the relevant rule is of course an
important factor. The maxim will only apply if the consequences of the irregularities are
of very slight importance, negligible, insignificant, trivial or unsubstantial. For example,
in B & M White Laundry Co v Charleston & WC Ry Co,34 a claim was filed for $16.88 and
the amount paid was $16.875. The Court held that the maxim applied to the discrepancy
of a fraction of the smallest current coin because it was too trivial for the practical
administration of the law. Value can be expressed in terms of money, distance, weight,
time, etc. but, in principle, it is not possible to express what a trifle is in absolute terms.35
Whether a matter is insignificant or not, will depend on the circumstances of the case: in
Re Ambanc La Mesa Ltd Partnership,36 $32,000 was considered de minimis when compared
to a total unsecured debt of $4 million.37
In some areas, the value factor may be irrelevant. If a seemingly trifling matter proves
to embody a point of substance, the maxim should not apply. In Smith v Bradlee, a
suit against the directors of a corporation, the Court considered that the fact that the
shareholder-plaintiffs owned only a few shares of a common stock did not justify the
application of the de minimis maxim, for, in an action brought and prosecuted in autre
droit, neither the proportion nor the value of the plaintiffs holdings of stock is relevant
to the right of action.38 Similarly, the de minimis maxim does not usually apply to class
action lawsuits, even if the interest of the lead plaintiff alone is trivial.39 In Seneca Road
Co v Auburn Rochester RR Co, the Court held that the de minimis maxim should never be
applied to the positive and wrongful invasion of anothers property.40

Ratio legis

The second factor is the ratio legis, the legislative intention, the purpose or the policy
behind the statutory rule, common law rule or contractual clause that has to be

34
B & M White Laundry Co v Charleston & WC Ry Co 83 S.C. 209, 65 S.E. 239 (Supreme Court of
South Carolina 1909).
35
An important factor in determining whether a claim is de minimis is the amount of daily
time spent on the additional work. There is no precise amount of time that may be denied
compensation as de minimis. No rigid rule can be applied with mathematical certainty. . . . Rather,
common sense must be applied to the facts of each case (Lindow v United States 738 F.2d 1057,
1062 (C.A. Or. 1984)). See also Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan
Law Review 537, 569570.
36
Re Ambanc La Mesa Ltd Partnership 115 F.3d 650 (C.A. Ariz. 1997).
37
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 951952;
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 558560.
38
Smith v Bradlee 37 N.Y.S. (2d) 512, 519 (N.Y. Sup. 1942).
39
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 955;
Nemerofsky, What is a Trifle Anyway? [200102] 37 Gonzaga Law Review 315, 333334.
40
Seneca Road Co v Auburn Rochester RR Co 5 Hill 170 (N.Y. Sup. 1843). See also Veech and
Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 550551; McKean, De
Minimis Non Curat Lex [1927] 75 University of Pennsylvania Law Review and American Law Register
429, 430431; Nemerofsky, What is a Trifle Anyway? [200102] 37 Gonzaga Law Review 315,
330331; Roland and Boyer, Adages du droit francais, p.151 (French law).
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interpreted and applied.41 In Mt Clemens, the US Supreme Court considered that the
purpose of the interpreted rules of the Fair Labor Standards Act was not to provide
compensation for overtime irrespective of its length or extent. The compensable work
week under this Act included only substantial and significant periods of time spent by
the employees in walking and preliminary activities.42 Where literal compliance with
the terms of a statutory provision is not essential to the carrying out of the legislative
intention, the maxim is applicable.43 Criminal law, as well as private law, generally
reserves its application to real, substantial misconduct.44
However, a case, which prima facie seems to be too trivial for a court to consider, will
be judicially determined and the de minimis maxim will not be applied, if the purpose
of the rule concerned includes alleven minorcases.45 In Arcos v Ronaasen & Son, the
parties had precisely defined the measurements of the goods that had to be delivered
in a written commercial contract. The seller delivered goods that differed slightly in
size from the contractual description. The House of Lords decided that the buyer was
entitled to demand goods answering the description in the contract and may reject the
goods tendered even if they were merchantable under that description:

If the written contract specifies conditions of weight, measurement and the like,
those conditions must be complied with. A ton does not mean about a ton, or

41
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 545551.
42
Mt Clemens 328 U.S. 680, 693 (U.S. 1946); Veech and Moon, De Minimis Non Curat Lex
[1947] 45 Michigan Law Review 537, 568.
43
McKean, De Minimis Non Curat Lex [1927] 75 University of Pennsylvania Law Review
and American Law Register 429, 441. See also Inesi, A Theory of De Minimis [2006] 21 Berkeley
Technology Law Journal 945, 953954.
44
McKean, De Minimis Non Curat Lex [1927] 75 University of Pennsylvania Law Review and
American Law Register 429, 441. See Art.52 Swiss Penal Code (RS 311.0; http://www.admin.ch/ch/
f/rs/3/311.0.fr.pdf [Accessed December 20, 2007]) which provides that, if the culpability of the
offender and the consequences of his act are not important, the competent authority refuses
to prosecute the case, to bring the case before a court or to inflict a penalty ([s]i la culpabilite
de lauteur et les consequences de son acte sont peu importantes, lautorite competente renonce a` le
poursuivre, a` le renvoyer devant le juge ou a` lui infliger une peine). This provision was introduced
because Swiss criminal law defines the elements of an offence in such a general and abstract
way that they could sometimes apply to relatively insignificant facts, which deserve neither the
severity nor the harshness of the envisaged sanction. It is to be noted that this article will not
be applicable, first, if the culpability of the offender is important but the consequences of his
act are trivial, e.g. damage to property amounting to CHF 1.00 but committed with malicious
intent, and, secondly, if the consequences of the act are important but the culpability of the
author is small, e.g. involuntary manslaughter caused by very slight imprudence (Message
concernant la modification du code penal suisse (dispositions generales, entree en vigueur et
application du code penal) et du code penal militaire ainsi quune loi federale regissant la
condition penale des mineurs du 21 septembre 1998 Feuille Federale 1999 II 1787, 18721873,
http://www.amtsdruckschriften.bar.admin.ch/showHome.do [Accessed December 20, 2007]). See also
Michael Thomas, Prosecution of Corruption Cases in Hong Kong [1988] 10 Asian Journal of
Public Administration 99, 102, http://sunzi1.lib.hku.hk/hkjo/view/50/5000284.pdf [Accessed December
20, 2007].
45
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 550551.
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Article Xavier-Baptiste Ruedin 89

a yard about a yard. Still less when you descend to minute measurements does
1/2 inch mean about 1/2 inch. If the seller wants a margin he must and in my
experience does stipulate for it. . . . No doubt there may be microscopic deviations
which business men and therefore lawyers will ignore.46

In other words, although the contract may substantially have been complied with,
the purpose of the contractual clause required perfect adequacy between owed and
delivered goods.47
In sum, the ratio legis factor should be understood widely: on the one hand, the
purpose of the statutory rule or the contractual clause may require the application of
the de minimis maxim, but, on the other hand, it may also exclude it.

Practicality

In applying the maxim, courts do not only consider the purpose of rules of law, but
they also consider other forms of policy which really includes public convenience and
necessity, private convenience and just plain everyday practicality.48 In Mt Clemens,
in the context of a private litigation, the practical consequences on both parties of the
application or non-application of the maxim (in the light of the realities of the industrial
world) were considered:

We ought to have in mind always that we are in great part an industrial nation
where very recently mass production and fair relations between capital and labor
served us so well; that we should look upon labor and industry as a team pulling
in the same direction, or as husband and wife where the give or the take is not all
on one side.49
The interests of the employees (compensation of all the timeeven unsubstan-
tialnecessary to walk to the work premises and to perform preliminary activities)
should not be considered isolated from the interests of the employers and should
not impose a disproportionate burden on the employer (the accountability for the
compensation of seconds or minutes of overtimedifferent for each employeemight
practically have been a difficult and time-consuming task for the employer).50
As shown in Webster,51 the de minimis maxim gives courts the opportunity to
avoid absurd findings of technical guilt where a conviction would be artificial and
divorced from reality52 and would bring the administration of justice into ridicule and
contempt.53

46
Arcos v Ronaasen & Son [1933] A.C. 470, 479, HL.
47
Litton J., The Latin Maxim De Minimis Non Curat Lex (1993) Law Lectures for Practitioners
34, 3536, http://sunzi1.lib.hku.hk/hkjo/view/14/1400163.pdf [Accessed December 20, 2007].
48
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 551.
49
Mt Clemens 69 F.Supp. 710, 721722 (D.C. Mich. 1947).
50
See also Lindow 738 F.2d 1057, 10621063 (C.A. Or. 1984).
51
[1981] O.J. No.2455.
52
R. v Arne Ling 109 C.C.C. 306, 310 (Alberta Supreme Court 1954).
53
See R. v G (T) [1990] A.J. No.39 (Alberta Provincial Court 1990): in this case, a boy was
accused of having infringed a municipal regulation according to which eating candies in municipal
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The maxim, as the expression of a common sense of justice and as a rule of reason,54 is
consequently necessary to close quickly judicial debates that should never have begun
in order to save courts from a flow of trivial cases, which would waste the time and the
resources of courts.55 Courts of law exist to enforce rights and redress wrongs, not to
encourage litigation . . .. Therefore, it is necessary and expedient that the law should not
be concerned with trivial matters.56

Intent

Good or bad faith, crime, fraud, honest intent, implied intent, negligence, inadvertence
or lack of intent may play a role in the application of the maxim.57 In R. v Webster,
the accused argued that he was a law-abiding citizen who didnt park illegally and
didnt believe in parking illegally58 on that dayas he had not seen the signs that were
erected and on displayand the Court expressly relied on the accuseds lack of intent
in its judgment.59 The presence or absence of intent is therefore important evidence to
be considered in determining the reasonableness of the situation to which the maxim is
to be applied.60
In private litigations such as Mt Clemens, intent can also be relevant. If the employer
was acting in good faith, only large amounts of uncompensated walking and preliminary
activities time should be recognised as a basis for a recovery. But, if:

. . . [T]he defendant employer was taking a gamble and acting with knowledge
that he was violating the act, then, as the general principles indicate, he has no
right to rely on a generous use of de minimis in his favour. On the other hand, if the
employees knowingly allowed the situation to continue for years without objection

buses was prohibited. The Court applied the maximconsidering that a conviction would bring
discredit on the law and contempt on the administration of justice.
54
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 567.
The trifles are measured . . . in terms of the injustice that may be done by a strict and technical
application of the rule (at 551).
55
The offense [defendants possession of whisky while pouring a drink for himself from
co-defendants pocket flask], if any, is too trivial to engage the time of the prosecutor and the
court, of even that police court which federal courts now largely are (Mulkis 39 F. 2d 664 (D.C.
Wash. 1930)). See also Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal
945, 952-953; Roland and Boyer, Adages du droit francais, p.150.
56
McKean, De Minimis Non Curat Lex [1927] 75 University of Pennsylvania Law Review and
American Law Register 429, 429430. See also Hetu, De minimis non curat praetor [1990] 50 Rev.
Barreau Quebec 1065, 1076; Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law
Review 537, 552553; Litton, The Latin Maxim De Minimis Non Curat Lex (1993) Law Lectures
for Practitioners 34, 35.
57
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 554555;
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 955956.
58
Webster [1981] O.J. No.2455 at [8].
59
Webster [1981] O.J. No.2455 at [31].
60
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 556.
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. . . they are also guilty of gambling and are not entitled to expect an application of
de minimis against the employer.61

The intentions of all the involved parties have to be considered. And, in a similar way as
compared with the ratio legis factor,62 the intent factor of the parties can be an argument
in favour, but also in disfavour, of the application of the maxim.

Public interest

Where a question of public interest is raised by a law suit, the de minimis maxim should
not apply, even if the matter as such could be qualified as trivial.63 For example, in
Ballin v Los Angeles County Fair, the Court decided that the maxim should not be applied
where the construction of a statute on a matter which is doubtless of interest to many
persons64 is involved. Furthermore, the public interest factor was used in cases which
concern important issues of interpretation of a statute or the constitutionality of a law:

An attack upon the constitutionality of a legislative act is never unimportant,


and the standing of one otherwise qualified to question the legislation is not to be
determined by the mere matter of dollars and cents involved.65

In other words, the existence of a question of constitutional importance (for example,


concerning the compatibility of a legislative statute with human rights) or of other
questions concerning a large number of citizens might limit the use of the de minimis
maxim, even if the monetary value of the claim is trivial.66

Other factors

The maxim should be equally and fairly available to all parties and in all similar
situations (mutuality factor). If, as in Mt Clemens, minor overtime is considered de
minimis and not compensated (in favour of the employer), the maxim should also
be applied when an employee arrives at work a few seconds late (in favour of the
employee).67
Furthermore, the protection of a person accused of a trivial offence against the
stigma of a criminal conviction and against punishmentalthough closely linked to the
practicality factor (as the application of a common sense of justice)is another factor
specifically designed for criminal law issues.68

61
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 568569.
62
See p.89, above.
63
Field v Bower 111 Conn. 715, 151 A. 191 (Conn. Sup. 1930).
64
Ballin v Los Angeles County Fair 43 Cal.App.2d Supp. 884, 111 P.2d 753 (Cal.Super. 1941).
65
Schwartz v Essex County Board of Taxation 28 A.2d 482, 484 (N.J.Sup. 1942).
66
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 553554;
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 954955.
67
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 556558.
68
Webster [1981] O.J. No.2455 at [21].
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A theory of de minimis

Considering the diversity of the situations in which the maxim is discussedwhat


is more in different areas of lawand of the factors used to justify its application, a
rationalisation of the maxim seems a nearly impossible task.69
Nevertheless, Inesi proposes an interesting Theory of De Minimis, which is
compatible with the factors commonly considered by courts. His theory is based
on the statement that the purposes of the maxim (acceptance of inconveniences as the
price of living in society, judicial economy, interpretative tool to inject reason into
technical rules of law,70 good administration of justice, etc.) share a common insight:
there are times when the social costs of applying black-letter law to a particular legal
violation outweigh the benefits.71 This theory takes the form of a two-step test.
First, given the courts discretion in considering the maxim, it is necessary to minimise
risks of favouritism and inconsistency by limiting the application of the maxim to trifling
matters (value factor): if the harm is insignificant, the court application of the maxim
will produce no significant injustice, even if the decision is inconsistent with other
judgments or the result of favouritism.

When deciding whether a harm is trifling, however, courts should consider only
the harms that the rule in question is designed to prevent. Harms that are unrelated
to the purpose of the rule, such as wounded pride, should not enter the analysis.72
(Ratio legis factor.)

Secondly, after having established the presence of a trifle, courts need to decide whether
or not to apply the maxim:

The key question here should be whether the social costs of adjudication outweigh
the social benefits. As the various formulations of de minimiss purpose indicate, the
maxim fundamentally concerns what is in societys best interest. The fact that use
of de minimis may not be in the interest of the party bringing the suit is not relevant
at this stage of analysis; as noted above, so long as the relevant harm is trifling, the
damage will not be great.73 (Practicality factor.)

In the framework of the second question, indirect benefits of adjudication of trivial


matters may be considered. For instance, failure to apply the law in an intentional trifling
case may lead to more lawbreaking (intent factor). Furthermore, the adjudication on
the merits may resolve a question of law of general interest (public interest factor).
[I]t would make little sense to use the maxim in cases that are worth adjudicating from
a societal standpoint, even if they cannot be justified by the size of the individual legal
harm in question.74

69
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 956.
70
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 543.
71
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 957. See also
Nemerofsky, What is a Trifle Anyway? [200102] 37 Gonzaga Law Review 315, 324.
72
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 958.
73
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 958.
74
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 959.
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Article Xavier-Baptiste Ruedin 93

This theory of de minimis will be useful for courts in order to rationalise their reasoning
concerning the de minimis issue. However, it should not be understood as a test which
would be able to offer a clear answer to the question of the applicability of de minimis
in every given case. Such a hypothetical test, in order to be efficient, would necessarily
have to establish clear rules as to how the different factors should be used to deal with
the maxim and would have to create a hierarchy between them. But, this is not desirable.
As a result of the fact that the maxim is used in very different contexts and areas of
law, the establishment of clear generally applicable rules is a utopia. The judges should
retain a large degree of discretion as to the weight they grant to the different factors,
in order to be able to take into account all the circumstances of the concrete case. This
theory conforms with this perspective and provides for a general framework within
which courts are free to assess the different enumerated factors.

The maxim de minimis non curat praetor in the field of the European Convention on
Human Rights

In general

The new admissibility criterion of Art.12 of Protocol No.14 may lead to certain cases
being declared inadmissible which might have resulted in a judgment without it.75 If
human rights as protected by the ECHR are considered as the minimum standards that
should be guaranteed in any situation to every human being, the fact that cases in which
the applicant has not suffered a significant disadvantage will not be examined by the
Strasbourg Court (application of de minimis) may prima facie seem incompatible with
the European philosophy of human rights protection.

Two-step test

As the two-step test described above76 is designed to help courts to answer the question
whether the de minimis maxim should be applied or not, it can be used as a guide for
the issue of the appropriateness of the use of de minimis non curat praetor within the
framework of the ECHR.

Existence of a trifle

The first question of the two-step test concerns the existence of a trifle. However, for the
purpose of this analysis, it must preliminarily be determined whether it is at all possible
to talk about trifles in the field of European human rights protection.

75
Council of Europe, Explanatory report to Protocol No.14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system of the
Convention in Directorate General of Human Rights, Council of Europe, Guaranteeing the
effectiveness of the European Convention on Human Rights: Collected texts (Strasbourg: 2004), para.79,
http://www.coe.int/t/e/human rights/prot14collection e.pdf [Accessed December 20, 2007].
76
See p.92, above.
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It is interesting to note that, even before Protocol No.14 was opened to signature,
the maxim de minimis non curat praetor, or at least its concept, was not absent from the
system of the ECHR.
In a decision in 1972, the Plenary Commission referred directly to the maxim to
declare an application inadmissible.77 By contrast, in 2001, the Court, in spite of
the small monetary value of the litigation at stake, dismissed the argument of the
Government according to which, in application of the principles de minimis non curat lex
and de minimis non curat praetor, the case was outside its competence.78
In 1981, in Dudgeon v United Kingdom, the Court held:

Where a substantive Article of the Convention has been invoked both on its own
and together with Article 14 (art. 14) and a separate breach has been found of the
substantive Article, it is not generally necessary for the Court also to examine the
case under Article 14 (art. 14), though the position is otherwise if a clear inequality
of treatment in the enjoyment of the right in question is a fundamental aspect of the
case (see the Airey judgment of 9 October 1979, Series A no. 32 p. 16, par. 30).79

In his dissenting opinion, Judge Matscher, implying that the Court had actually applied
the maxim de minimis non curat praetor, explained that the conditions required for its
application should be stricter, but did not argue that the maxim as such was incompatible
with the ECHR:
Admittedly, there are extreme situations where an existing difference of treatment
is so minimal that it entails no real prejudice, physical or moral, for the persons
concerned. In that event, no discrimination within the meaning of Article 14 (art.
14) could be discerned, even if on occasions it might be difficult to produce an
objective and rational explanation for the difference of treatment. It is only in such
conditions that, in my opinion, the maxim de minimis non curat praetor would
be admissible . . .. I do not, however, find these conditions satisfied in the present
case . . .

In Chaare Shalom Ve Tsedek v France,80 the approval necessary for power to authorise
Jewish ritual slaughterers was granted to the Joint Rabbinical Committee. The Joint
Rabbinical Committee is part of the Jewish Consistorial Association of Paris (an

77
Even supposing, therefore, that the refusal of the authorities in 1969 to allow the applicant
to consult a solicitor was not in conformity with Article 6 (1) (Art. 6-1) of the Convention, the
Commission notes first that such a situation will not occur again because the relevant United
Kingdom practice has been liberalised; and, secondly, that the applicant did not consult a solicitor
when he was able to do so. In this respect the Commission refers to the legal principle of de
minimis non curat lex. It seems improper to hold that the authorities prevented the applicant
from obtaining the determination of his civil rights when his later conduct indicates that he was
seeking nothing beyond a lump sum payment of compensation directly from the Government or
the Commission. (X v United Kingdom (App. No.4933/71), decision of December 19, 1972, 43 CD
24, ECommHR).
78
Koumoutsea v Greece (App. No.56625/00), decision of December 13, 2001.
79
Dudgeon v United Kingdom (1981) 3 E.H.R.R. 40 at [67].
80
Chaare Shalom Ve Tsedek v France (App. No.27417/95), judgment of June 27, 2000.
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Article Xavier-Baptiste Ruedin 95

offshoot of the Central Consistory, which is the body most representative of the Jewish
communities of France).81 The applicant association was a minority movement which
split away from the Jewish Central Consistory of Paris and which wished to perform
ritual slaughter according to stricter rules than those followed by the slaughterers
authorised by the Paris Central Consistory. Because the approval was granted to the
Joint Rabbinical Committee alone, the applicant association claimed that the French
authorities had infringed in a discriminatory way its right to manifest its religion
through observance of the rites of the Jewish religion (Art.9 ECHR, taken alone and
in conjunction with Art.14 ECHR). The Court held that it was not established that the
applicant association could not obtain meat which was slaughtered according to the
stricter rules in question. Consequently, as the measure had only limited effect, there
was no interference with the applicants right to freedom to manifest its religion.82
The Court added that even if this restriction was considered as an interference, the
measure complained of was not disproportionate and would have been compatible
with Art.9(2) ECHR.83 In the light of these findings, the Court considered that the
difference of treatment which resulted from the measure was limited in scope84 and
that, if there was a difference of treatment, it had an objective and reasonable justification.
Consequently, there had been no violation of Art.9 ECHR taken in conjunction with
Art.14 ECHR. According to the formulation of the Court, the difference of treatment was
limited in scope (de faible portee) or, in other words, too insignificant to amount to a
discrimination. If the maxim de minimis non curat praetor was not expressly mentioned,
its spirit can be read between the lines of this judgment.85
In K-F v Germany, the time spent by the applicant in police custody had exceeded the
statutory maximum by 45 minutes. The Commission said that the rather short delay
in releasing the applicant had not arbitrarily deprived him of his liberty and found no
violation of Art.5 ECHR.86 Mrs Liddy and MM Pellonpaa , Busuttil, Rozakis, Bratza and
Ress dissented, arguing that they could not accept that:

. . . [A] short period of detention which is unlawful as a matter of domestic law


can be disregarded either on the grounds that it falls within a certain margin of
appreciation afforded to member States or by the application of some de minimis
principle. The maxim de minimis non curat praetor is not part of the legal
framework of the Convention and certainly has no place in the context of the
unlawful deprivation of liberty.

The Court heldwithout taking a position on the applicability of the maximthat,


since the maximum period of detention was known in advance, the authorities had to

81
Chaare Shalom Ve Tsedek (App. No.27417/95), judgment of June 27, 2000 at [22], [77].
82
Chaare Shalom Ve Tsedek (App. No.27417/95), judgment of June 27, 2000 at [83].
83
Chaare Shalom Ve Tsedek (App. No.27417/95), judgment of June 27, 2000 at [84].
84
Chaare Shalom Ve Tsedek (App. No.27417/95), judgment of June 27, 2000 at [87].
85
Patrice Rolland, Liberte de religion et abattage rituel de la viande : Laffaire Chaare Shalom
Ve Tsedek (27 juin 2000) in Paul Tavernier (ed), La France et la Cour europeenne des Droits de
lHomme, La jurisprudence de 2000 (presentation, commentaires et debats) (Cahiers du CREDHO No.7
[2001]) 61, 63, http://www.credho.org/cedh/session07/session07.htm [Accessed December 20, 2007].
86
HF K-F v Germany (App. No.25629/94), Commission report of September 10, 1996 at [65].
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96 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

ensure that the permitted duration was not exceeded and concluded unanimously that
there had been a breach of Art.5(1)(c) ECHR.87
In two dissenting opinions (to reports of the Commission), Mr Alkema argued in
favour of the application of the maxim de minimis non curat praetor within the framework
of the ECHR:

In contrast to Mrs J. Liddy et al. dissenting in H.F. K.F v Germany


(No.25629/94, Comm. Report 10.9.96, unpublished; similarly No.19218/91, Dec.
28.6.95, unpublished), I consider that maxim part of the legal framework of the
Convention. Indeed, it is inherent in its international supervision allowing for a
margin of appreciation; it is also inherent in the wording of the rights and freedoms
referring to e.g. necessary in a democratic society as well as in the wording of
the case-law requiring e.g. a minimum level of severity with respect to Art.3.
The same is true for Art.6, the relevant provision here. It refers to a reasonable
time and may be supervised with a margin of appreciation . . ..Yet, the de minimis
maxim is not to be applied here perfunctorily or mechanically. Factors other than
what is at stake financially may have to be taken into account.88

Concerning Art.6 ECHR, the Court has observed that in order to assess the fairness of a
trial, the trial as a whole has to be considered:

While Article 6 (art. 6) of the Convention guarantees the right to a fair trial, it
does not lay down any rules on the admissibility of evidence as such, which is
therefore primarily a matter for regulation under national law. The Court therefore
cannot exclude as a matter of principle and in the abstract that unlawfully obtained
evidence of the present kind may be admissible. It has only to ascertain whether
Mr. Schenks trial as a whole was fair.89

In other words, some irregularities during the trial may be too trivial to make the trial
as a whole unfair. Orin the words of Art.12 of Protocol No.14the applicant will
have to demonstrate the existence of a significant disadvantage in order to bring the
Court to find a violation of Art.6 ECHR. Furthermore, concerning the notion of civil
rights and obligations (contestations sur ses droits et obligations de caract`ere civil), the
Court said that [t]he contestation (dispute) must be genuine and of a serious nature
in order for Art.6 ECHR to be applicable.90 In sum, in the case law concerning Art.6
ECHR, the idea of de minimis non curat praetor seems to be recognisable.91

87
K-F v Germany (App. No.25629/94), judgment of November 27, 1997 at [72][73].
88
Eyoum-Priso v France (App. No.24352/94), Commission report of April 9, 1997. See also
Lechesne v France (App. No.20264/92), Commission report of May 21, 1997.
89
Schenk v Switzerland (1988) 13 E.H.R.R. 242 at [46].
90
Van Marle v Netherlands (1986) 8 E.H.R.R. 483 at [32]. See also Albert Evert Alkema, The
European Convention as a Constitution and its Court as a Constitutional court in Paul Mahoney,
Franz Matscher, Herbert Petzold and Luzius Wildhaber, Protection des droits de lhomme: la perpective
europeenne, Melanges a` la memoire de Rolv Ryssdal (Cologne/Berlin/Bonn/Munich: Carl Heymanns,
2000), pp.41, 59, fn.79.
91
Vanneste, A New Inadmissibility Ground, p.79.
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Article Xavier-Baptiste Ruedin 97

Finally, according to Art.43 ECHR, the request of any party to a case that the case
be referred to the Grand Chamber shall be accepted only if the case raises a serious
question affecting the interpretation or application of the ECHR of the protocols thereto,
or a serious issue of general importance. It can be argued that the system of the ECHR
considers that some cases are not important enough to be considered by the Grand
Chamber. This feature of the Strasbourg mechanism was even more obvious, when
cases were preliminarily examined by the European Commission of Human Rights.
Some cases in which the Commission had found a violation were denied access to the
European Court of Human Rights (Art.5 of Protocol No.9 to the ECHR92 ). They were
apparently not deemed serious enough to deserve a fully-fledged judicial hearing and
treatment in Strasbourg.93
In sum, this analysis shows that the maxim de minimis non curat praetor is sometimes
expressly present or at least underlying in the system of the ECHR; in its procedural
provisions as well as in some of the substantial provisions, as interpreted by the
Court. Of course, the maxim may be inappropriate in some situations, but, as a general
statement, it can be said that the system of the ECHR does not exclude the possibility
that trivial cases exist within the Strasbourg system and may be disregarded by the
Court.

Social costs versus social benefits

The second part of the two-step test asks whether the social costs of adjudication
outweigh the social benefits or whether the application of de minimis is in societys best
interest. Transposed in the context of the ECHR, the relevant question is whether it is in
the best interest of European society to see the Court adjudicating every case irrespective
of its triviality (individual justice) or whether the Court should rather concentrate its
resources on substantial cases (quasi-constitutional justice)?94 This debate about the
fundamental mission of the Court took place during the elaboration process of Protocol
No.14.95
Under the motto an injustice to one is a threat to all,96 the first camp considers that
the individual interest is the centre of the system of the ECHR. The right of individual
petition constitutes one of the most precious acquis of the ECHR.97 Therefore, measures

92
1990; CETS No.140.
93
Alkema, The European Convention as a Constitution, pp.5859.
94
Luzius Wildhaber, A constitutional future for the European Court of Human Rights?
(2002) H.R.L.J. 161, 162.
95
Vanneste, A New Inadmissibility Ground, p.70; Boillat, Le Protocole no 14 44 Petites
affiches (2 mars 2006) 6, 7.
96
Montesquieu (see Vanneste, A New Inadmissibility Ground, p.72).
97
See Council of Europe, Explanatory report to Protocol No.14 (2004), para.10; Draft-
ing Group on the Reinforcement of the Human Rights Protection Mechanism (CDDH-GDR),
Position paper of the European Court of Human Rights on proposals for reform of the
European Convention on Human Rights and other measures as set out in the report of the
Steering Committee for Human Rights of 4 April 2003 (CDDH(2003)006 final) (September
26, 2003) CDDH-GDR(2003) 024, para.31, http://www.coe.int/t/e/human rights/cddh/3. committees/
07.%20other%20committees%20and%20working%20groups/06.%20guaranteeing%20human%20rights
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98 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

limiting access to the Court should be reduced to the strict minimum and even trivial
cases should be considered by the Court.98 They point out that an accumulation of
insignificant violations can create an insecurity climate for human rights and that
national authorities might develop practices tolerating minor violationsif they know
that the Court will not sanction them.99
In the second camp, the right of individual petition is seen as a means which permits
the raising of the general level of human rights protection in the Member States.100 The
importance of the remedy awarded to the individualwhile valuableis secondary
to the principal aim of reinforcing the protection of human rights at national level.101
According to the principle of subsidiarity, individual justice should first of all be handed
down by national courts.102 What is more, not every individual application contributes
to strengthen the internal protection in the general interest (main objective).103 The Court
must therefore be empowered to concentrate on cases which really contribute to this
objectiveon judgments of principle that are authoritative and create jurisprudence
as well as on allegations of serious human rights violations104 reducing the caseload
to reasonable proportions.105 In this perspective, the introduction of a new admissibility
condition is acceptable.106
To illustrate the practical effects of the debate and arguing in favour of a more
constitutional Court, Luzius Wildhaber, the former President of the Court, gives the
following example107 : when the Court finds a violation of Art.3 ECHR because of bad
prison conditions and evidence indicates that this is a widespread situation in the
defendant state, does it make sense for the Court to treat individually the potentially
thousands of applications that could be introduced by prisoners in a similar situation?
Will the individual award of a just satisfaction to each applicantprovided that the

%20%28cddh-gdr%29/01.%20working%20documents/2003/CDDH-GDR(2003)024%20E%20Views
%20of%20the%20European%20Court%20.asp [Accessed December 20, 2007]; Vanneste, A New
Inadmissibility Ground, p.72.
98
CDDH-GDR(2003) 024, para.34.
99
Florence Benot-Rohmer, Il faut sauver le recours individuel . . . [2003] Recueil Dalloz
2584, 25862587.
100
Wildhaber, A constitutional future for the European Court of Human Rights? (2002)
H.R.L.J. 161, 162; Vanneste, A New Inadmissibility Ground, pp.70-71.
101
CDDH-GDR(2003) 024, para.36; Wildhaber, A constitutional future for the European Court
of Human Rights? (2002) H.R.L.J. 161, 162163; Vanneste, A New Inadmissibility Ground,
p.71.
102
CM(2003) 55, para.13.
103
CDDH-GDR(2003) 024, para.36.
104
The so-called constitutional judgments, see Evaluation Group, Report of the Evaluation
Group to the Committee of Ministers on the European Court of Human Rights (27 September
2001) EG Court (2001) 1, para.98, https://wcd.coe.int/com.instranet.InstraServlet?Index=no&Command
=com.instranet.CmdBlobGet&DocId=215708&SecMode=1&Admin=0&Usage=4&InstranetImage
=62964 [Accessed December 20, 2007].
105
Wildhaber, A constitutional future for the European Court of Human Rights? (2002)
H.R.L.J. 161, 163.
106
CDDH-GDR(2003) 024, paras 3637.
107
Wildhaber, A constitutional future for the European Court of Human Rights? (2002)
H.R.L.J. 161, 164.
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Article Xavier-Baptiste Ruedin 99

Court is able to deal with all these cases within a reasonable timehasten the eradication
of the causes of the original violation, here the prison conditions? Most probably not,
it is submitted, especially if the denounced situation is caused by a lack of funding. In
these circumstances the Courts credibility is diminished, by continually condemning
the respondent state for the same reason, whilst lacking the capacity to ensure that
the source of the violation is eliminated and thus that the general level of human
rights protection is raised. Moreover, if nothing is done to slow down the continuous
increase in the volume of individual applications, the Court will neither be able to
render individual justicepronouncing a judgment could take seven, eight or more
years108 nor quasi-constitutional justice in judgments of principle.109
Acknowledging the legitimacy of both tendencies (individual and quasi-
constitutional), the drafters of Protocol No.14 stated that [a] fair balance should
be struck between the interest of the individual and the interest of the community at
large.110 The right of individual petition should not be considered as untouchable, but
the Court should not be granted unlimited discretionary power to accept or not to accept
cases (on the model of the writ of certiorari before the US Supreme Court) either.111
Consequently, the new admissibility criterionreflecting the maxim de minimis non
curat praetorwas introduced into the ECHR. However, the purpose of this innovation
was not to reduce the right of individual petition. On the contrary, the drafters claim that
it was necessary in order to safeguard the right of individual petition and to guarantee
the long-term efficiency of the Court.112
In other words, in the light of an ever increasing caseload, European societys best
interest seems to lie in the preservation of an efficient Court, which is able to decide
cases within a reasonable time, even if this happens at the cost of some applicants, who
have not suffered a significant disadvantage. The Courts credibility will be reinforced
if it renders fewer judgments that are actually implemented in domestic legal orders,
with the effect that the level of human rights protection rises in the Member States.

Conclusion

In summary, as it seems possible to consider that trifles exist within the Strasbourg
system and, as the compromise found by the Member States of the Council of Europe
in Art.12 of Protocol No.14 is not unreasonable, the application of de minimis non curat
praetor does not appear to be excluded from the system of human rights protection of
the ECHR.

108
Equally, as the guardian of European human rights it is essential that the Court itself is
seen to respect the basic principles of the Convention and the standards adopted by the Council
of Europe. Notable among these are the requirement provided for by Article 6, paragraph 1, of
the ECHR, of a fair trial within a reasonable time by an independent and impartial tribunal. (EG
Court (2001) 1, Appendix V, para.5).
109
CM(2003) 55, para.12.
110
CDDH-GDR(2003) 024, para.32. See also Vanneste, A New Inadmissibility Ground, p.75.
111
Vanneste, A New Inadmissibility Ground, p.71.
112
Boillat, Le Protocole no 14 44 Petites affiches (2 mars 2006) 6, 8; Council of Europe,
Explanatory report to Protocol No.14 (2004), para.39; CM(2003) 55, para.11.
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100 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

The no significant disadvantage criterion

Having set aside the fundamental critique that the de minimis maxim is inappropriate
in the European human rights protection system, it is now possible to consider in more
detail the content and the reach of the no significant disadvantage criterion.
The central problem of this new admissibility criterion is the interpretation of the
notion of significant disadvantage. This difficulty should not prove too high a hurdle
for the Court as the ECHR contains a number of such autonomous notions (victim,
speedily, etc.).113 Nevertheless, according to Art.20(2) of Protocol No.14, the new
admissibility criterion will only be applied by Chambers and the Grand Chamber of the
Court during the two years following the entry into force of Protocol No.14, in order to
give them the opportunity to develop clear criteria for its application.114

The concept of disadvantage

First of all, the concept of disadvantage (in the French version: prejudice) has to be
interpreted. This notion is actually not new in the system of the ECHR, as prejudice is
relevant in the context of Art.41 ECHR, but it is new at the admissibility stage, as the
victim requirement does not presuppose the existence of a prejudice.115
After the entry into force of Protocol No.14, the relevance of the prejudice that
the individual has suffered will no longer remain confined to Art.41 ECHR. Indeed,
if the applicant has not suffered a significant disadvantage (in the French version:
prejudice important), the case will be declared inadmissible.
Because of the obvious similarity between the notion of prejudice or disadvantage
in the context of Art.41 ECHR and in that of the new admissibility criterion, it is very
likely that the Court will interpret this notion in the same way. As a reminder, apart
from costs and expenses, awards of just satisfaction can be made under two heads:
pecuniary loss (prejudice materiel), including loss occurred (damnum emergens) and lost
profit (lucrum cessans),116 and non-pecuniary loss (prejudice moral).117

113
Boillat, Le Protocole no 14 44 Petites affiches (2 mars 2006) 6, 8 ; Vanneste, A New
Inadmissibility Ground, p.76.
114
Council of Europe, Explanatory report to Protocol No.14 (2004), para.105; Vanneste, A
New Inadmissibility Ground, p.79; Boillat, Le Protocole no 14 44 Petites affiches (2 mars 2006)
6, 8.
115
[I]n its use of the word victim, Article 25 [Art.34 ECHR] denotes the person directly
affected by the act or omission which is in issue . . . and the existence of a violation is conceivable
even in the absence of prejudice, prejudice being relevant only in the context of Art.50 [Art.41
ECHR] (Adolf v Austria (1982) 4 E.H.R.R. 313 at [37]; see also Eckle v Germany (1982) 5 E.H.R.R. 1
at [66]). Berger, Le prejudice important selon le Protocole No 14, p.85.
116
Open Door and Dublin Well Woman v Ireland (1992) 15 E.H.R.R. 244 at [85][87].
117
Engel v Netherlands (Art.50) (1976) 1 E.H.R.R. 647 at [9][10]. Clare Ovey and Robin White,
Jacobs and White: The European Convention on Human Rights 4th edn (Oxford: OUP, 2006), p.491;
Vanneste, A New Inadmissibility Ground, pp.76, 82.
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Article Xavier-Baptiste Ruedin 101

Significance of the disadvantage

For the second part of the interpretative processthe determination of the significance
of the disadvantagethe factors that were established during the analysis of the
application of de minimis at domestic level should be kept in mind as they could provide
some guidance. Another aid for the interpretation can be found in the text of the ECHR
which distinguishes between non-derogable and derogable rights.

Non-derogable rights

According to Art.15(2) ECHR, no derogation from Art.2 ECHR (right to life), except in
respect of deaths resulting from lawful acts of war, or from Art.3 ECHR (prohibition
of torture), Art.4(1) ECHR (prohibition of slavery) and Art.7 ECHR (no punishment
without law) shall be made under Art.15 ECHR.
The express qualification (in the text of the ECHR) of these rights as being non-
derogable shows that the ECHR requires that special attention is paid to the respect
of these (core) rights118 even in time of war or other public emergency. In line with
this objective (see ratio legis factor in the context of the application of de minimis at
domestic level), it seems logical to consider that any violation of a non-derogable right
will result in a significant disadvantage for the victim. It is indeed difficult to imagine,
for example, that a victim of torture could be considered as not having suffered a
significant disadvantage.119

Derogable rights

Concerning the other (derogable) rights, further guidance as to the significance of the
disadvantage required by Art.35(3)(b) ECHR can be found in the annex to an impact
assessment made by a Study Group of the Registry, which simulated the application of
the new admissibility condition using the following criteria120 :

All complaints concerning deprivation of liberty (Art.5 ECHR)even clone


cases121 should amount to a significant disadvantage.

118
Gerard Cohen-Jonathan, La Convention europeenne des droits de lhomme (Paris: Economica,
1989), p.562.
119
Vanneste, A New Inadmissibility Ground, pp.7778; Berger, Le prejudice important
selon le Protocole No 14, p.88.
120
Reflection Group on the Reinforcement of the Human Rights Protection Mechanism
(CDDH-GDR), Impact Assessments of some of the Reform Proposals under Consideration (12
March 2003) CDDH-GDR(2003) 017 Annex (Proposal No.2), http://www.coe.int/t/e/human rights/
cddh/3. committees/07.%20other%20committees%20and%20working%20groups/06.%20guaranteeing
%20human%20rights%20%28cddh-gdr%29/01.%20working%20documents/2003/CDDH-GDR(2003)
017%20E%20-%20Impact%20assessment%20of%20some%20proposals%20by%20the%20ECHR.asp
[Accessed December 20, 2007].
121
CDDH-GDR(2003) 017, para.11. Clone cases are (very numerous) cases that are
rooted in one and the same structural problem existing in a state party (e.g. length
of proceedings cases against Italy), see Working Group of the Committee of Experts
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102 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

For length of procedure cases (Art.6 ECHR), what is at stake for the applicant
(for example, home, reputation, family, employment, deprivation of liberty)
would help to define whether there is a significant disadvantage. In cases
concerning the length of criminal proceedings, it was considered that the threat
of a punishment regularly amounted to such significant disadvantage. In
civil length cases, the Study Group fixed at 500.00 (while applying the Courts
adjustment table under Art.41 ECHR, for example 60 per cent for Turkey, 40
per cent for Ukraine) the threshold below which the applicant would not suffer
a significant disadvantage.
Concerning Arts 8, 9, 10 and 11 ECHR, it would depend on what is at stake
for the applicant (for example, separation of family members would always be
viewed as a significant disadvantage).
Spurious applications based on Art.12 ECHR complaints would be excluded.
For complaints under Art.13 ECHR, there would be a significant disadvantage
whenever no remedies are at the applicants disposal. And finally, in the context
of Art.14 ECHR, whether the disadvantage is significant or not would depend
on the degree of discrimination.

As in the context of the application of de minimis at domestic level, the question whether
the disadvantage is significant or not cannot be answered in absolute terms (value
factor). The Study Group of the Registry proposed to fix a financial threshold for
civil length cases, but such a criterion will not allow the Court to avoid considering
the particular circumstances of the case. It is indeed possible to imagine cases in
which a financial threshold would be inappropriate (for example, in disputes between
neighbours or in exceptionally long procedures with a claim value below 500.00).
Furthermore, the subjective criterion of what is at stake for the applicant reinforces
the idea that the Court will have to follow a casuistic approach and will have difficulties
in developing clear-cut criteria for the application of the new admissibility condition.122
In that context, the intent factor should not be neglected, especially as the Court
has already taken intentions into account in its jurisprudence. For example, in V v
United Kingdom, the Court considered the fact that the criminal proceedings against
the applicant [an eleven-year-old child who had murdered a two-year-old boy] were
not motivated by any intention on the part of the State authorities to humiliate him
or cause him suffering123 was an element to justify that Art.3 ECHR had not been
breached. The (bad) intentions of the respondent state could be an argument to declare
admissible cases that do not reach the financial threshold or to counter states that
would intentionally try to benefit unduly from the introduction of the new admissibility
criterion by developing practices of tolerance for trifles (in the hope that the Court will
not condemn them).

for the Improvement of Procedures for the Protection of Human Rights (GT-DH-PR),
Extracts of Different Texts Dealing with the Problem of Clone Cases (June 5, 2002)
GT-DH-PR (2002) 002 bilingual/bilingue, http://www.coe.int/t/e/human rights/cddh/3. committees/
02.%20improving%20of%20human%20rights%20protection%20%28dh-pr%29/03.%20working
%20documents/2002/GT-DH-PR(2002)002bil%20E.asp [Accessed December 20, 2007].
122
Vanneste, A New Inadmissibility Ground, pp.7879.
123
V v United Kingdom (1999) 30 E.H.R.R. 121 at [78].
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Article Xavier-Baptiste Ruedin 103

Concerning Art.5 ECHR, the ratio legis factor could justify that all deprivation
of liberty represents a significant disadvantage for the victim. Because this provision
aims at guaranteeing the liberty of the person (in particular against arbitrary arrest
and detention) and because the Court stresses the fundamental importance of this
guarantee,124 it seems legitimate to hold that each alleged violation of this right will
consequently result in a significant (if not material, at least immaterial) prejudice.
In sum, contrary to the fairly clear situation concerning alleged violations of non-
derogable rightswhich should all deserve due consideration by the Courtthe task
of the Court will be more complicated when violations of derogable rights are invoked,
as it will have to take into account all the circumstances of each individual case. The
Strasbourg Court will have to face the same problems that domestic courts encounter
when they apply in a particular case the de minimis maxim (diversity of areas of law
in which the maxim is applied, variety of possible factors which may influence the
decision about the application of the maxim, weight that should be given to each factor,
etc.). The establishment of schematic criteria for the application of the maxim seems to
be an equally difficult mission at domestic and at European levels.

Safeguard clauses

As the drafters of Protocol No.14 were aware that the no significant disadvantage
criterion may lead to the rejection of cases actually warranting an examination on the
merits, two safeguard clauses were added to the formulation of the new admissibility
condition. Protocol No.14 awards the Court a certain margin of appreciation to decide to
examine cases in which the applicants have not suffered a significant disadvantage.125

Public interest

If the applicant has not suffered a significant disadvantage, the Court shall declare
inadmissible the application unless respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the application on the
merits.126
The cases warranting an examination on the merits will notably include cases which,
notwithstanding their trivial nature, raise serious questions affecting the application
or interpretation of the Convention or important questions concerning national law,
in other words, cases concerning questions of interest to many persons (see public
interest factor).127
The wording of this safeguard clause is drawn from the second sentence of Art.37(1)
ECHR (in fine) where it fulfils a similar function in the context of decisions to strike

124
Kurt v Turkey (1998) 27 E.H.R.R. 373 at [122]: The Court notes at the outset the fundamental
importance of the guarantees contained in Article 5 for securing the right of individuals in a
democracy to be free from arbitrary detention at the hands of the authorities.
125
Vanneste, A New Inadmissibility Ground, p.70.
126
Art.35(3)(b) ECHR.
127
Council of Europe, Explanatory report to Protocol No.14 (2004), para.83.
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104 The Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)

applications out of the Courts list of cases. Consequently, its interpretation should not
be too difficult.128

Due consideration by a domestic tribunal

The second clause, according to which no case may be rejected on this ground [the no
significant disadvantage criterion] which has not been duly considered by a domestic
tribunal,129 ensures that every case will receive at least a judicial examination whether
at national level or at European level. This clause reflects the principle of subsidiarity
within the framework of the ECHR and underlines the fact that domestic courts have
the task to consider all complaints related to ECHR rights, irrespective of their triviality.
It is worth noting that this clause requires only consideration by a domestic tribunal of
the alleged violation, and not its acknowledgment.130

Conclusion
At domestic level, the maxim de minimis non curat praetor cannot be easily defined in
the abstract, isolated from a specific factual situation. Courts hold a large discretionary
power to apply or not to apply the maxim. Consequently, the case law is often divergent.
In spite of centuries-old application of the maxim, it was never fully theoretically
rationalised, particularly as regards the questions of how and under what circumstances
it should be applied. However, some uniform factors used to discuss the application
or the non-application of the maxim seem to arise from the jurisprudence and Inesis
Theory of De Minimis provides for a general guideline for its application.131
At the European level, the introduction of the no significant disadvantage
admissibility criterion is an express sign that the principle of full and generalised
right to an international remedy for every human rights victim is not applicable in the
framework of the ECHR.132 But, this is actually not new, as the maxim de minimis non
curat praetoror at least its underlying ideawas already present in the jurisprudence
and in the system of the Strasbourg Court. Accordingly, the arguments of the proponents
of an unlimited right of individual petition can be rejected and, considering the Courts
ever growing caseload and its need for efficiency to be able to render judgments within
a reasonable time, the introduction of a new admissibility criterion cannot be considered
as completely inappropriate and illegitimate.
The new admissibility condition will give rise to a certain juridical insecurityin
particular for the lawyers who will have to advise their clientssince it will have to be
interpreted. Moreover, except for cases in which the violation of a non-derogable right

128
Council of Europe, Explanatory report to Protocol No.14 (2004), para.81. As to the
interpretation of this clause, see Melnic v Moldova (App. No.6923/03), judgment of November 14,
2006 at [23][24].
129
Art.35(3)(b) ECHR.
130
Council of Europe, Explanatory report to Protocol No.14 (2004), para.82; Vanneste, A
New Inadmissibility Ground, pp.70, 7475, 82.
131
Veech and Moon, De Minimis Non Curat Lex [1947] 45 Michigan Law Review 537, 544545;
Inesi, A Theory of De Minimis [2006] 21 Berkeley Technology Law Journal 945, 946947, 949950.
132
Vanneste, A New Inadmissibility Ground, pp.81, 83.
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Article Xavier-Baptiste Ruedin 105

is alleged, it is foreseeable that, due to the rather subjective criteria of the significance
of the disadvantage,133 the Court will have to follow a causistic approach and that
objective criteria will only be established through the gradual development of the case
law of the Court.134
Finally, although the new condition brings more flexibility in the ECHR system (the
desired open-endedness of the formulation will also authorise an interpretation relating
to the number of applications),135 it is not clear yet whether it will really contribute to the
reduction of the workload of the Court.136 The first estimates seem to evaluate its impact
as rather small, as according to the simulation of the Study Group of the Registry, only
about 5 per cent of the applications should be affected by this admissibility condition.137
Notwithstanding the doubts over the efficiency of the new admissibility criterion, at
least one point was made clear by Protocol No.14: de minimis non curat the European
Court of Human Rights.

133
Benot-Rohmer, Il faut sauver le recours individuel . . . [2003] Recueil Dalloz 2584, 2586;
Berger, Le prejudice important selon le Protocole No 14, p.89.
134
Vanneste, A New Inadmissibility Ground, pp.76, 83.
135
Schurmann,
Das Protokoll Nr. 14, p.74; Council of Europe, Explanatory report to
Protocol No.14 (2004), para.80.
136
Vanneste, A New Inadmissibility Ground, p.81.
137
CDDH-GDR(2003) 017, para.10; Benot-Rohmer, Il faut sauver le recours individuel. . .
[2003] Recueil Dalloz 2584, 2587.
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Protecting the Victims of Trafficking:
Problems and Prospects
Suzanne Egan
Lecturer in Law, School of Law, University College Dublin

International criminal law; Trafficking in human beings; Victims

This article examines the current international and European framework to combat the
crime of trafficking and to protect its victims. It demonstrates that while states have placed
considerable priority on criminalising the practice and on prosecuting the traffickers, they
have been reluctant to undertake legally binding obligations in the matter of protecting
victims. Despite the fact that the essence of trafficking is the savage violation of individual
human rights, victims stand in a twilight zone of international, and in most cases, national
legal protection. To this end, the article considers whether a code of rights for victims of
trafficking can be gleaned from the obligations undertaken by states in the ECHR which
could ultimately be translated into national law and practice.

Introduction
Trafficking in human beings involves the recruitment, transportation, harbouring or
receipt of people, without their consent, for the purposes of exploitation. It is a global
phenomenon that has impinged on practically every country in the world, either as a
country of origin, transit or destination. Trafficking constitutes one of the most severe
violations of human rights and has been aptly described as a contemporary form of
slavery.1 It is commonly acknowledged that the main victims of trafficking are women
and children. It is women and children who are most often trafficked for the purposes of
sexual exploitation,1a though they can also end up being forced into other situations of
forced labour, begging, adoption, false marriage, or as victims of trade in human organs.
Because of the clandestine nature of the activities in question, it is very difficult to find
reliable statistics on the scale of trafficking anywhere in the world.2 It has however
been estimated that approximately 800,000 men, women and children are moved across

1
UN Fact Sheet No.14: Contemporary Forms of Slavery: http://www.unhchr.ch/html/menu6/2/
fs14.htm [Accessed January 16, 2008]; P. Mac Redmond, Human Trafficking in Europe: The New
Slave Trade, unpublished LL.M. Thesis (UCD, 2003).
1a
It has been estimated that of the 800,000 persons trafficked across international boundaries
every year, 70% are female and 50% are children: US State Department, Trafficking in Persons
report (2007), p.8.
2
The International Labour Organisation has estimated that that there are 12.3 million people
in forced labour, bonded labour, forced child labour and sexual servitude at any given time.
According to the recent Trafficking in Persons report, other estimates run between 4 and 27 million.
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Article Suzanne Egan 107

international boundaries every year. This figure does not include the millions of people
trafficked within their own countries.3 And with estimates running as high as $44 billion
dollars a year,4 trafficking is ranked just behind the drugs trade and the arms industry
as one of the most lucrative forms of international crime.5 It is a phenomenon that seems
to be on the increase rather than in decline.
Despite the scale of this phenomenon and the devastating impact on its victims,
trafficking is still a crime that remains relatively invisible in the public consciousness
and also in political and legal circles in many countries. There are many reasons that can
be put forward to explain this lack of visibility: First, the lack of concrete information
on the extent of the phenomenon at national and international levels; secondly, the fact
that unlike most other crimes, the victims remain largely hidden from public view, at
the mercy of the traffickers or criminal gangs who control them; and thirdly, legislative
responses to the phenomenon in many states prioritise law enforcement to the exclusion
of protection of its victims and preventative strategies which are more likely to raise the
profile of the phenomenon in the public mind.
The purpose of this article is to examine the current international and European
framework to combat the crime of trafficking and to protect its victims. It demonstrates
that while states have prioritised the goal of criminalising the practice and prosecuting
the traffickers, they have been reluctant to undertake legally binding obligations in the
matter of protecting victims. Despite the fact that the essence of trafficking is the savage
violation of individual human rights, victims stand in a twilight zone of international,
and in most cases, national legal protection. To this end, therefore, the article considers
whether a code of rights for victims of trafficking can be gleaned from the obligations
undertaken by states in the European Convention on Human Rights (ECHR) which
could ultimately be translated into national law and practice.

Defining trafficking

The nucleus of international law on the issue of trafficking is the Protocol to Prevent,
Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000 (the
Palermo Protocol).6 This Protocol supplements the United Nations Convention Against
Transnational Organized Crime.7 The Protocol is aimed at preventing and combating
trafficking, with particular emphasis on the protection of women and children and the
promotion and facilitation of co-operation amongst contracting states in order to meet
this objective. The Protocol defines trafficking in persons8 as:

3
Trafficking in Persons report.
4
P. Belser, Forced Labour and Human Trafficking: Estimating the Profits (ILO, 2005):
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1016&context=forcedlabor [Accessed
January 16, 2008].
5
Trafficking in Persons report, p.2.
6
Resolution 55/25 (2000). Entry into force December 25, 2003: http://www.uncjin.org/Documents/
Conventions/dcatoc/final documents 2/convention %20traff eng.pdf [Accessed December 21, 2007].
7
Resolution 55/25 (2001). Entry into force September 29, 2003: http://www.unodc.org/pdf/crime/
a res 55/res5525e.pdf [Accessed December 21, 2007].
8
Palermo Protocol Art.3(a).
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108 Protecting the Victims of Trafficking: Problems and Prospects

. . . [T]he recruitment, transportation, transfer, harbouring or receipt of persons by


means of the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person having control
over another person for the purpose of exploitation.

This definition of trafficking has been welcomed on the one hand for its
comprehensiveness,9 and criticised on the other, for its undue complexity.10 The primary
emphasis in the definition is on the crucial element of exploitation which itself is defined
as including . . ., at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.11 The definition makes clear that the use
of coercive tactics, deception, or abuse of a position of authority, will vitiate any alleged
consent to the subsequent exploitation.
The element of exploitation is the factor that distinguishes trafficking from the practice
of smuggling with which it is often confused. The problem of smuggling of persons
is dealt with in a separate Protocol to the Convention on Organised Crime called the
Protocol Against the Smuggling of Migrants by Land, Sea and Air.12 This Protocol
defines smuggling of migrants as:

. . . [T]he procurement, in order to obtain directly or indirectly, a financial or other


material benefit of the illegal entry of a person into a State Party of which the person
is not a national or a permanent resident.13

Thus, smuggling occurs where one or more persons facilitate the illegal entry into a
state of a foreign national for financial gain. At face value, it does not involve any
element of exploitation, as it is presumed that the smuggled person necessarily consents
to the practice. Trafficking victims, on the other hand, have either never consented or,
if they initially consented, that consent has been rendered meaningless by the coercive,
deceptive or abusive actions of the traffickers. In effect, the essence of smuggling is that
it is a crime against the state, whereas trafficking is a crime inflicted on individuals.14
This neat division of form is not always so simple to identify in substance. The practices
of trafficking and smuggling are often interlinked. What may start out as a process of

9
Coalition Against Trafficking in Women, Guide to the New UN Trafficking Protocol (2001), p.4:
http://action.web.ca/home/catw/attach/un protocol.pdf [Accessed December 21, 2007].
10
A. Jordan, The Annotated Guide to the Trafficking Protocol (International Human Rights Law
Group, 2003), p.3: http://www.globalrights.org/site/DocServer/Annotated Protocol.pdf?docID=2723
[Accessed December 21, 2007].
11
Palermo Protocol Art.3(a).
12
Resolution 55/25 (2000), Annex 111: (not in force).
13
Resolution 55/25 (2000), Art.3(a).
14
In principle, the smuggling of persons constitutes an illegal border crossing and is
therefore a violation against the State. In contrast, trafficking in human beings is a violation
of the rights of the individual, so that the victims of the crime are the trafficked persons
themselves: B. Limanowska, Trafficking in Human Beings in Southeastern Europe (Unicef, 2002),
p.3: http://www.unicef.de/download/trafficking-see.pdf [Accessed December 21, 2007].
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Article Suzanne Egan 109

smuggling can in fact end up as one of trafficking. A person who is smuggled willingly
into a country can often be in an extremely vulnerable situation. She may be unable to
pay for the cost of the smuggling and may thus end up being exploited in exactly the
same ways as a victim of trafficking. Thus, while it is important to distinguish between
smuggling and trafficking in the gathering of accurate information on the phenomenon
of trafficking, the fluidity that exists between both practices must also be borne in mind.15

International legal framework


The purpose of the Palermo Protocol is set out in Art.2 as that of preventing and
combating trafficking (with particular attention to women and children); the protection
and assistance of victims of trafficking; and the promotion of inter-state cooperation
to achieve these objectives. To this end, the Protocol sets out a strategic framework
through which states parties are obliged to tackle the phenomenon of trafficking. This
framework includes the adoption of legislative measures to make trafficking an offence
under criminal law, under which individuals may be prosecuted and convicted for
attempting to traffic a person, for participating as an accomplice in any such activity, or
for organising or directing others to commit the offence of trafficking.16 The Protocol also
sets forth measures of prevention that must be taken by states, including requirements
to establish comprehensive policies, programmes and other measures to prevent and
combat trafficking in persons.
The aim of protecting the victims of trafficking is provided for in Art.6 of the
Protocol which obliges states parties in appropriate cases and to the extent possible
under its domestic law to protect as far as possible the privacy and identity of
victims of trafficking, including by making legal proceedings relating to such trafficking
confidential.17 States are also required to consider implementing measures to provide
for the physical, psychological and social recovery of victims of trafficking, including, in
appropriate cases, in co-operation with non-governmental organisations, other relevant
organisations and other elements of civil society, the provision of: appropriate housing;
counselling and information, in particular as regards their legal rights, in a language
that the victims of trafficking in persons can understand; medical, psychological and
material assistance; and employment, educational and training opportunities.18 States
are further required to endeavour to provide for the physical safety of victims of
trafficking in persons while they are within the territory19 ; and to ensure that the
domestic legal system contains measures that offer victims of trafficking the possibility
of obtaining compensation for damage suffered.20 While it is undoubtedly important that
the Protocol includes such detailed measures in regard to the protection of victims, it is

15
See generally, J. Bhabha, Trafficking, Smuggling and Human Rights (Migration Policy Institute,
2005): http://www.migrationinformation.org/Feature/print.cfm?ID=294 [Accessed December 21, 2007].
16
It should be noted that the offence of trafficking in persons is criminalised under the Protocol
only to the extent that the offence is transnational in nature and if it involves an organized criminal
group: Art.5.
17
Palermo Protocol Art.6(1).
18
Palermo Protocol Art.6(3).
19
Palermo Protocol Art.6(5).
20
Palermo Protocol Art.6(6).
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110 Protecting the Victims of Trafficking: Problems and Prospects

regrettable that these measures are framed quite weakly, with little or no firm obligations
being imposed on states in the vital matter of protection. While the measures in question
are professed to be aimed at protecting the human rights of the victims, there can be
little doubt that the emphasis in the Protocol is primarily on the issue of crime control
and prevention.

The European Union


The European Union has also moved to introduce measures on trafficking. The European
Unions Framework Decision on Trafficking of 2002 is intended to complement the work
of the United Nations in this area and to . . . harmonize at European level the definitions
and methods for punishment of offences related to trafficking for the purpose of labour
and sexual exploitation.21 The Framework Decision defines trafficking in very similar
terms to the Palermo Protocol22 and enjoins Member States to take the necessary
measures to ensure that trafficking is a criminal offence in their respective jurisdictions,
punishable by effective, proportionate and dissuasive penalties.23 There can be little
doubt that the emphasis in this instrument is prosecutorial, with very little attention
paid to the inclusion of measures for the protection of victims.24
This emphasis on the primacy of state security over the protection needs of victims
is amplified by the terms of the subsequent EU Directive on Short Term Residence
Permits.25 The Directive aims to facilitate the prosecution of traffickers by assisting
victims of trafficking who co-operate with national authorities in the prosecution
of traffickers. Article 6 of the Directive provides for a reflection period, during
which victims of trafficking must be allowed to recover and escape the influence
of the perpetrators of the offences so that they can take an informed decision as to

21
A Framework Decision, as a matter of EU law, is used as a means of harmonising the laws
and regulations of the Member States in particular areas. Framework Decisions are binding on
states as to the results that must be achieved in the particular areathough the choice of means
in implementing the obligations are left to the discretion of the Member States.
22
Framework Decision Art.1 defines trafficking as involving . . . the recruitment,
transportation, transfer, harbouring, subsequent reception of a person, including exchange or
transfer of control over that person, where: (a) use is made of coercion, force or threat, including
abduction, or(b) use is made of deceit or fraud, or(c) there is an abuse of authority or of a position
of vulnerability, which is such that the person has no real and acceptable alternative but to submit
to the abuse involved, or(d) payments or benefits are given or received to achieve the consent
of a person having control over another person for the purpose of exploitation of that persons
labour or services, slavery or practices similar to slavery or servitude, or for the purpose of
the exploitation of the prostitution of others or other forms of sexual exploitation, including in
pornography.
23
Framework Decision Art.5.
24
Framework Decision Art.7. A more robust approach to the protection of child victims
of sexual exploitation, however, can be found in the EU Framework Decision on Combating
the Sexual Exploitation of Children and Child Pornography 2003 which is designed to forge a
common response to such offences which very often involve trafficking in children.
25
Directive 2004/81 on the residence permit issued to third country nationals who are victims
of trafficking in human persons or who have been the subject of an action to facilitate illegal
immigration, who co-operate with the competent authorities [2004] OJ L261/19.
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Article Suzanne Egan 111

whether to cooperate with the competent authorities.26 The Directive goes on to


provide that where victims of trafficking do agree to co-operate with the authorities,
they may be issued with a short-term residence permit in a state for a period of at
least six months, during which states are obliged to provide them with assistance
and care.27 It obliges States to ensure that victims have suitable accommodation,
emergency medical and psychological treatment and necessary support in the form of
social welfare and means of subsistence. Free legal aid, translation and interpretation
services are also to be provided. During the life of the permit, victims should also
be allowed to work or to undertake training.28 At first blush, these measures may
appear to offer a fairly comprehensive package of protection to trafficking victims.
In human rights terms, however, they are of dubious worth, tied as they are to the
co-operation of the victim in the first place with the prosecution.29 The propriety of
incentivising victims in this manner has been appropriately queried on the basis that
it may raise questions as to the reliability of their evidence in subsequent criminal
proceedings.30

Council of Europe

Taking the Palermo Protocol and other international legal instruments as its starting
point, in 2005 the Council of Europe promulgated a Convention on Action Against
Trafficking in Human Beings 2005 which seeks to strengthen the protection afforded

26
The length of the proposed reflection period shall be determined according to national law:
Directive 2004/81 Art.6(1). Article 7 of the Directive details the measures of protection and care
to be granted to persons during this reflection period.
27
Directive 2004/81 Art.8.
28
Directive 2004/81 Chapter III.
29
Directive 2004/81 Art.8(2) explicitly requires that before issuing a residence permit, the
Member State must consider (a) the opportunity presented by prolonging a persons stay for the
investigation of trafficking or for the purposes of judicial proceedings; (b) whether the person
has shown a clear intention to co-operate; and (c) whether the person concerned has severed all
relations with persons suspected of trafficking. Articles 13 and 14 of the Directive provide that
the permit may not be renewed or may be withdrawn if these conditions cease to be satisfied. The
linkage between protection and prosecution has been specifically rejected by the EUs Experts
Group on Trafficking in Human Beings which has elsewhere recommended that: in order to
effectively address trafficking and to prevent re-trafficking, as well as meeting the States obligation
under international human rights law, Member States should ensure that trafficked persons have
access to adequate remedies, including assistance, protection and compensation, regardless of
their willingness or capacity to testify against the traffickers: Report of the EU Experts Group
on Trafficking in Human Beings, December 22, 2004, Recommendation 89, http://ec.europa.eu/
justice home/doc centre/crime/trafficking/doc/report expert group 1204 en.pdf [Accessed December 21,
2007].
30
Irish Human Rights Commission, Observations on the Scheme of the Criminal Justice
(Trafficking in Persons and Sexual Offences) Bill 2007: Such direct linkage may have the
effect of incentivising the giving of evidence against he accused and thus possibly
contaminating or tainting such evidence (para.3.3): http://www.ihrc.ie/ fileupload/banners/
Observations on the scheme of the Criminal JusticeTPSOBill.doc [Accessed December 21, 2007].
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112 Protecting the Victims of Trafficking: Problems and Prospects

by those instruments and to raise the standards which they lay down31 in regard
to trafficking.32 In particular, the aim of this Convention was to develop existing
international standards in regard to the protection of the human rights of the victims
of trafficking.33 In this regard, therefore, the Convention adopts for the first time
in international law a human rights centred approach34 to the phenomenon of
trafficking.35
Thus, in addition to imposing obligations on contracting states in the matter
of prosecution of traffickers36 and methods of prevention,37 the Convention also

31
Council of Europe Convention Against Trafficking in Human Beings: Explanatory Report (CETS
No.197), para.6, http://conventions.coe.int/Treaty/EN/Reports/Html/197.htm [Accessed December 21,
2007].
32
Trafficking is defined in Art.4(a) of the Convention in substantially the same terms as Art.1
of the Palermo Protocol as . . .the recruitment, transportation, transfer, harbouring or receipt of
persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud,
of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or services, slavery
or practices similar to slavery, servitude or the removal of organs. The definition explicitly
provides that the consent of a victim shall be irrelevant where any of the means set forth in the
definition have been used (Art.4(b)). Moreover, in regard to child victims under the age of 18
years, the recruitment, transportation, transfer, harbouring or receipt of a child for the purposes
of exploitation shall be deemed sufficient to constitute trafficking even if this does not involve
any of the means set forth in the definition (Art.4(c)).
33
Council of Europe Convention Against Trafficking in Human Beings: Explanatory Report, para.30.
34
It should be noted that the approach of the Convention is based in this respect on the
United Nations High Commissioner for Human Rights Recommended Principles and Guidelines
on Human Rights and Human Trafficking, para.1 of which provides that: The human rights of
trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to
protect, assist and provide redress to victims: UN Doc. E/2002/68/Add.1: http://www1.umn.edu/
humanrts/instree/traffickingGuidelinesHCHR.html [Accessed December 21, 2007]
35
The added value provided by the Council of Europe Convention lies firstly in the
affirmation that trafficking in human beings is a violation of human rights and violates human
dignity and integrity, and that greater protection is therefore needed for all of its victims. Secondly,
the Conventions scope takes in all forms of trafficking (national, transnational, linked or not to
organised crime, and for purposes of exploitation) in particular with a view to victim protection
measures and international cooperation: Council of Europe Convention Against Trafficking in Human
Beings: Explanatory Report, para.36.
36
See Chapter IV of the Convention which requires, inter alia, contracting states to criminalise
as offences the intentional trafficking of human beings, as well as attempts at aiding or abetting
of trafficking, or of acts relating to travel or identity documents. Chapter V sets forth further
measure in regard to investigation, prosecution and procedural law.
37
See Chapter II of the Convention, which sets out detailed obligations on states, inter alia, to
establish and/or strengthen effective policies and programmes to prevent trafficking in human
beings, by such means as: research, information, awareness raising and education campaigns,
social and economic initiatives and training programmes, in particular for persons vulnerable to
trafficking and for professionals concerned with trafficking in human beings (Art.5(2)); measures
to discourage demand (Art.6); and in regard to border controls (Art.7).
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Article Suzanne Egan 113

obliges them to adopt such legislative or other measures as may be necessary


to assist victims38 in their physical, psychological and social recovery.39 These
include obligations to provide appropriate and secure accommodation, psychological
and material assistance40 ; access to emergency medical treatment41 ; translation and
interpretive services42 ; counselling and information;43 and access to education for
children.44 It may be noted that in contrast to the EU Directive, states must also
legislate or take other measures to ensure that assistance to a victim is not made
conditional on his or her willingness to act as a witness.45 The Convention also
makes provision for a recovery and reflection period of 30 days for persons who have
been trafficked into a state46 ; and for the issuing of residence permits to them where
their stay is necessary due either to their personal situation or because such stay is
necessary for the purposes of co-operation in a criminal investigation.47 Other provisions
provide for compensation and legal redress48 and the repatriation and return of the
victims.49
These victim-centred measures are further strengthened by the establishment of an
expert committee to monitor the implementation of the Convention by the parties.
The function of this Group of Experts on Action against Trafficking in Human
Beings (GRETA)50 shall be to evaluate periodically the performance of each state
in implementing its obligations under the Convention.51 The reports of the Committee
will be publicly accessible and hence have the same practical impact as those of
the Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) which monitors the Council of Europe Torture Convention.
The addition of this implementation technique to the substantive provisions of the
Convention is thus a highly novel and practically useful approach to the phenomenon
of trafficking.
Encouraging as the elaboration of this Convention may be, a measure of the reluctance
of European States to accede to such a comprehensive code of measures to protect
the victims of trafficking is demonstrated by the fact that, to date, only 10 states

38
Article 4(e) of the Convention defines the term victim as any natural person who is subject
to trafficking in human beings as defined in Art.4(a).
39
Council of Europe Convention Against Trafficking in Human Beings c.III.
40
Council of Europe Convention Against Trafficking in Human Beings Art.12(1)(a).
41
Council of Europe Convention Against Trafficking in Human Beings Art.12(1)(b).
42
Council of Europe Convention Against Trafficking in Human Beings Art.12(1)(c).
43
Council of Europe Convention Against Trafficking in Human Beings Art.12(1)(d).
44
Council of Europe Convention Against Trafficking in Human Beings Art.12(1)(f).
45
Council of Europe Convention Against Trafficking in Human Beings Art.12(6).
46
Council of Europe Convention Against Trafficking in Human Beings Art.13.
47
Council of Europe Convention Against Trafficking in Human Beings Art.14.
48
Council of Europe Convention Against Trafficking in Human Beings Art.15.
49
Council of Europe Convention Against Trafficking in Human Beings Art.16.
50
Council of Europe Convention Against Trafficking in Human Beings Art.36 provides for the
establishment of GRETA. It shall be composed of a minimum of 10 members and a maximum of
15, taking into account gender and geographical balance, as well as multi-disciplinary expertise,
chosen from the nationals of the states parties to the Convention.
51
Council of Europe Convention Against Trafficking in Human Beings Art.38 sets out the
procedure.
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114 Protecting the Victims of Trafficking: Problems and Prospects

have ratified the Convention.52 The Convention will become binding only on these
few states in February 2008. In the meantime, it appears that victims of trafficking
generally are bereft of concrete human rights protection at the international level. Closer
analysis, however, reveals that while the specific requirements of the Council of Europe
Convention may await broader implementation, a more generic duty on states to protect
trafficking victims could, by means of tactical advocacy, be located in other international
human rights instruments, and specifically the ECHR.

International human rights law and trafficking

The main corpus of international law on trafficking, as we have seen, is not built squarely
on human rights foundations. Nonetheless, certain core human rights instruments allude
to it and the committees responsible for their enforcement have increasingly focused
their work in its direction.
Article 6 of the Convention on the Elimination of All Forms of Discrimination Against
Women, for example, commits states to pursue all appropriate measures, including
legislation, to suppress all forms of traffic in women and exploitation of prostitution of
women. The Committee on the Elimination of All Forms of Discrimination Against
Women (CEDAW) has interpreted this provision broadly in that the phrase appropriate
measures should include measures of protection for victims. In its Concluding
Observations on Irelands fourth and fifth periodic reports under the Convention,
for example, CEDAW expressed concern about trafficking of women and girls in
Ireland, the lack of information on the extent of the problem and on specific legislation
in this area, and the lack of a comprehensive strategy to combat it.53 Specifically the
Committee recommended . . . the adoption and implementation of a comprehensive
strategy to combat trafficking in women and girls, which should include preventive
measures, the prosecution and punishment of offenders and the enactment of specific
legislation in the area.54 The Committee also recommended that measures be put in
place to provide for the physical, psychological and social recovery of women and girls
who have been victims of trafficking, including the provision of shelter, counselling and
medical care.55 Recommendations concerning the protection of victims of trafficking
are now a routine feature of the Committees Concluding Observations on states
reports.56

52
The Convention has been ratified by Albania, Austria, Bulgaria, Croatia, Cyprus, Denmark,
Georgia, Moldova, Romania and Slovakia. 27 states have signed the Convention, thus evincing at
least an intention to ratify in the future: http://conventions.coe.int.
53
UN Doc. CEDAW/C/IRL/CO/4-5, July 22, 2005, para.30: http://www.un.org/womenwatch/
daw/cedaw/cedaw33/conclude/ireland/0545060E.pdf [Accessed December 21, 2007].
54
UN Doc. CEDAW/C/IRL/CO/4-5, para.31.
55
UN Doc. CEDAW/C/IRL/CO/4-5, para.31.
56
For most recent examples, see Concluding Observations on Greece (UN Doc.
CEDAW/C/GRC/CO/6, February 2, 2007, paras 21 and 22, http://daccessdds.un.org/doc/UNDOC/
GEN/N07/243/74/PDF/N0724374.pdf?OpenElement; and on Serbia (UN Doc. CEDAW/C/SCG/
CO/1, June 11, 2007, paras 25 and 26, http://daccessdds.un.org/doc/UNDOC/GEN/N07/375/72/PDF/
N0737572.pdf?OpenElement.
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Article Suzanne Egan 115

The United Nations Convention on the Rights of the Child57 obliges states in a
variety of ways to combat the exploitation of children for labour or sexual purposes,
and specifically enjoins states to combat the illicit transfer and non-return of children
abroad58 and to take measures with a view to preventing the abduction of, sale of,
or trafficking in children, regardless of the purpose thereof.59 Crucially, Art.39 places
emphasis on the establishment of appropriate measures to secure the recovery (physical
and psychological) and reintegration of victims who have suffered exploitation or
abuse. Like CEDAW, the Committee on the Rights of the Child (CRC), which monitors
implementation of the Convention, has laid emphasis in its recommendations to states
in recent years on the need for comprehensive measures to combat trafficking in children
and to protect child victims of trafficking.60

The European Convention on Human Rights


It is well-rehearsed that the decision of the European Court of Human Rights in the
case of Soering v United Kingdom61 was the foundation for a trail of decisions by the
Court articulating rights for asylum seekers under the Convention that could hardly
have been foreseen by the drafters of the Convention.62 The decisions in Cruz-Varas v
Sweden,63 Chahal v United Kingdom,64 HLR v France65 and D v United Kingdom66 provide
the basis for many national schemes for complementary protection in states parties to
the Convention, as well as informing aspects of their asylum procedures. While the
concept of trafficking has barely surfaced in Convention jurisprudence to date, a focused
analysis of pertinent articles of the Convention discloses that the instrument could be of
considerable practical value to victims in a similar fashion to the asylum jurisprudence.

Freedom from slavery, forced labour and servitude

The prohibition on slavery and forced or compulsory labour in Art.4 ECHR is the most
obvious starting point for any analysis of the value of the Convention in regard to

57
UNTS vol. 1577, p.3, entry into force September 2, 1990: http://www.unicef.org/crc/ [Accessed
December 21, 2007].
58
UN Convention on the Rights of the Child Art.11.
59
UN Convention on the Rights of the Child Art.35.
60
See, e.g. Concluding Observations on Uruguay, UN Doc. CRC/C/URY/CO/2, July 5, 2007,
paras 65 and 66; the Maldives, UN Doc. CRC/C/MDV/CO/3, June 8, 2007, paras 95 and 96; and
Ireland, UN Doc. CRC/C/IRL/CO/2, September 29, 2006, paras 76 and 77: http://www2.ohchr.org/
english/bodies/crc/sessions.htm.
61
(1989) 11 E.H.R.R. 439.
62
See, e.g. K. OBoyle, Extradition and Expulsion under the European Convention on Human
Rights: Reflection on the Soering Case in OReilly (ed.), Human Rights and Constitutional Law
(Roundhall Press, 1992), p.93; R. Lillich, The Soering Case (1991) 85 A.J.I.L. 128; and S. Egan,
Human Rights Considerations in Extradition and Expulsion Cases: The European Convention
on Human Rights Revisited (1998) 2 Contemporary Issues in Irish Law and Politics 188.
63
(1992) 14 E.H.R.R. 1. See also, Vilvarajah v United Kingdom (1992) 14 E.H.R.R. 248.
64
(1997) 23 E.H.R.R. 413.
65
(1998) 26 E.H.R.R. 29. See also Ahmed v Austria (1997) 24 E.H.R.R. 278.
66
(1997) 24 E.H.R.R. 423.
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116 Protecting the Victims of Trafficking: Problems and Prospects

trafficking victims. This article was successfully pleaded by the applicant in the case
of Siliadin v France67 which concerned an alleged incident of trafficking of a child for
the purposes of labour exploitation. The facts reveal that the applicant, a 15-year-old
Togolese national, had been taken to France by a French national on the pretext that
her immigration status would be regularised and that she would be educated. In fact,
she was subsequently lent, by the woman who had accompanied her to France, to a
family as a domestic servant, in circumstances where she had worked fifteen hours a
day, seven days a week, for no pay. Although the arrangement had persisted for over
three years in total, the French courts had held that her situation did not breach the
French Penal Code. The applicant complained that the exploitation to which she had
been subjected in a private household amounted to a failure by the state to comply with
its positive obligation under Arts 1 and 4 ECHR, taken together, to put in place adequate
criminal law provisions to prevent and effectively punish the perpetrators of those acts.
This argument by the applicant involved a novel extension of the positive obligations
doctrine, previously recognised by the Court principally in regard to Arts 2, 3 and
8 ECHR,68 to the terms of Art.4. The Court agreed, holding that limiting compliance
with Art.4 only to direct action by the state authorities would be inconsistent with
international instruments specifically concerned with slavery and forced labour and
would amount to rendering it ineffective.69 Accordingly, it necessarily followed that
governments indeed have positive obligations to adopt criminal law provisions which
penalise the practices referred to in Art.4 and to apply them in practice.70 While the
circumstances to which the applicant had been subjected did not, in the view of the
Court, amount to slavery, she had been subjected to forced labour and servitude
within the meaning of Art.4 at a time when she was a minor.71 The violation was
established in this case because the provisions of French criminal law had not offered
her adequate protection against her situation and not made it possible for the culprits
to be punished.72
While the decision is obviously of huge significance in so far as it establishes a clear
duty on states parties to the Convention to criminalise trafficking and other forms
of forced labour, it has been obliquely criticised for failing to stretch the positive
obligations in Art.4 beyond the duty to provide an adequate criminal law response and
further in the direction of victim protection.73 The text of Art.4, however, is limited to a
straight-forward prohibition on slavery and forced or compulsory labour. It would
seem unlikely that even the broadest interpretation of Art.4 could give rise to a duty to
provide measures of protection to persons subjected to such treatment. Rather, it would

67
(2006) 43 E.H.R.R. 16.
68
A. Mowbray, The Development of Positive Obligations under the European Convention on Human
Rights (Oxford: Hart, 2004); and The Creativity of the European Court of Human Rights [2005]
E.H.R.L.R. 59.
69
(2006) 43 E.H.R.R. 16 at [89].
70
(2006) 43 E.H.R.R. 16 at [89].
71
(2006) 43 E.H.R.R. 16 at [109][129].
72
(2006) 43 E.H.R.R. 16 at [148].
73
H. Cullen, Siliadin v France: Positive Obligations under Article 4 of the European
Convention on Human Rights (2006) 6 H.R.L. Rev. 585, 590.
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Article Suzanne Egan 117

seem that the more appropriate nexus to victim protection can be located in Arts 8 and
3 ECHR.

Right to respect for physical and moral integrity

The Court has recognised in a number of different contexts that the right to respect
for private life in Art.8 ECHR includes the right of every person to respect for his or
her physical and moral integrity.74 One step below the more demanding standard of
establishing that a state has inflicted or otherwise allowed an individual to be subjected
to degrading treatment in violation of Art.3, this obligation positively obliges states to
take concrete measures, whether legislative or otherwise, to protect a persons physical
and moral integrity. The Court has recognised the existence of this aspect of the right
in cases involving deportation,75 treatment of disabled persons76 and failure to make
adequate criminal law provision in cases of assault.77 Given that the rights in the
Convention apply to all persons within the jurisdiction of the contracting states, it could
well be argued that a failure by any contracting state to provide adequate shelter to a
trafficked person, to fail to meet his or her psychological or physical needs or to supply
emergency medical assistance would be a failure to respect that persons physical or
moral integrity. Again, the essence of such an argument would have to be based on
the failure by the state to fulfil its positive obligations in regard to this aspect of the
right. There can be little doubt but that such an argument would require the Court to
stray into the contentious area of social and economic rights where it is usually quite
uncomfortable.78 However, arguments in this direction could be bolstered by reliance
on the standards for victim protection set forth in the Palermo Protocol and a fortiori in
the Council of Europe Convention Against Trafficking.79 This would be so particularly
given the Courts repeated mantra in cases such as Siliadin that the Convention is a
living instrument which must be interpreted in the light of present day conditions and
in accordance with the increasingly high standards required in the area of human rights
and fundamental liberties.80 The emphasis in this and other judgments on the duty of
the state to protect children and other vulnerable individuals would also be of similarly
persuasive value.81

74
See X and Y v Netherlands (1986) 8 E.H.R.R. 235; and Costello-Roberts v United Kingdom (1995)
19 E.H.R.R. 112.
75
Bensaid v United Kingdom (2001) 33 E.H.R.R. 10.
76
Glass v United Kingdom (2004) 39 E.H.R.R. 15.
77
X and Y (1986) 8 E.H.R.R. 235 and A v United Kingdom (1999) 27 E.H.R.R. 611.
78
Certainly, the view expressed by the Court in the case of August v United Kingdom (2003) 36
E.H.R.R. CD115 is not very encouraging in this respect.
79
It should be noted here that in reaching its decision on the existence of positive obligations
in Art.4 ECHR, the Court drew on the standards elaborated in the International Labour
Organisations Forced Labour Convention 1930, the United Nations Supplementary Convention
on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956
and the United Nations Convention on the Rights of the Child 1989: see (2006) 43 E.H.R.R. 16 at
[85][87].
80
(2006) 43 E.H.R.R. 16 at [121]. See also, Selmouni v France (2000) 29 E.H.R.R. 403 at [101].
81
(2006) 43 E.H.R.R. 16 at [143], citing inter alia, X and Y (1986) 8 E.H.R.R. 235 and A v United
Kingdom (1999) 27 E.H.R.R. 611.
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118 Protecting the Victims of Trafficking: Problems and Prospects

Protection against return to country of origin

On the issue of return to the state of origin, where this arises, the case law on Art.3 ECHR
in regard to asylum is of direct relevance to a victim of trafficking who fears return and
possible revictimisation in her country of origin by her traffickers. The decision of the
Court in the case of HLR v France provides the appropriate principle that individuals
should not be sent back to a state where they are at risk of ill-treatment, even at the
hands of non-state agents, whom the state cannot or will not control.82 However, it
must be acknowledged that it has become increasingly difficult for applicants before
the Court to reach the high threshold of proof demanded by the Court in practice.83
Moreover, Art.3 would seem to provide little grounds for relief in circumstances where
victims do wish to be repatriated, or where their wishes are unclear. The Council of
Europes Convention on Trafficking does provide for a reflection period and provision
of a residence order so as to allow the victim to come to terms with the situation, to
be protected from the trafficker(s), to assess the risks, if any, involved in return, and
to decide whether or not to co-operate with any potential prosecution. Unfortunately,
pending implementation of that Convention and widespread ratification by Council of
Europe states, the ECHR would seem incapable of supplying the deficiency.

Duty of investigation

A persistent difficulty in combating the phenomenon of trafficking has been the low
rates of identification by states of situations of trafficking. Given the incapacity of many
victims to self-identify or to come forward physically, it is hugely important that the
state puts in place trained personnel who can evaluate circumstances that will not
immediately present to an untrained eye as a situation of trafficking. In this respect,
it may be recalled that the Court has previously held that states are under a duty to
investigate situations where there is an arguable claim that persons have been treated
in violation of Art.3,84 even at the hands of private parties.85 Thus, failure by police
to investigate the circumstances of any situation which might reasonably be believed
to amount to a situation of trafficking, which of its very essence at least amounts
to inhuman and degrading treatment, might also ground liability on Art.3 grounds.
Similar arguments may also emerge in regard to a duty of investigation as an inherent
aspect of Art.4.

Conclusion
Despite the devastating impact which the crime of trafficking has on its victims, states
are still reluctant to commit to binding legal obligations in the matter of protection.
The national interest has always taken priority in the fight against trafficking. This

82
HLR v France (1998) 26 E.H.R.R. 29.
83
Egan, Human Rights Considerations in Extradition and Expulsion Cases (1998) 2
Contemporary Issues in Irish Law and Politics 188.
84
Assenov v Bulgaria (1999) 28 E.H.R.R. 652 at [102].
85
Pantea v Romania (2005) 40 E.H.R.R. 26.
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Article Suzanne Egan 119

reluctance to commit to binding legal obligations in regard to protection is evidenced by


the widespread failure of European states to ratify the Council of Europes Convention
Against Trafficking. In such a climate, human rights advocates have increasingly
resorted to core human rights treaties as a means of articulating concrete rights for
victims. There is evidence that this approach is garnering certain success. The above
analysis reveals that the European Convention on Human Rights, in particular, could
provide useful weaponry in the armoury of lawyers representing victims of trafficking,
both at the national level where the Convention is incorporated into domestic law,
and ultimately before the European Court of Human Rights in the years ahead. While
the dividends in individual cases may not be widespread, such a course of strategic
litigation could help place the spotlight on the needs of victims of this most egregious
of crimes.

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Case Analysis

Liberty, Fairness and the UK Control


Order Cases: Two Steps Forward, Two
Steps Back

Adam Sandell*

Control orders; Right to fair trial; Right to liberty and security; Terrorism

The Prevention of Terrorism Act 2005 provides for control orders to be made against
individuals in the United Kingdom suspected of involvement in terrorism. Control orders
may impose curfews and other substantial restraints upon individuals liberties, and may be
made on the basis of secret evidence. In October 2007, in cases involving nine individuals
subject to control orders, the House of Lords handed down judgments on the compatibility
of the regime with the individuals rights to liberty and to fair hearings. This case-note
critically analyses these judgments and suggests that an opportunity to provide more
coherent protection for these rights was missed.

Introduction

The notion that there is a conflict between preserving human rights and protecting
the public from terrorism has gained much currency since September 11, 2001. It was
most recently examined in the pages of this journal by Keir Starmer Q.C., who suggests
persuasively that this perception stems from a failure properly to use the criminal law
to deal with those involved in terrorist activities.1 But the antagonism theme continues
to thrive in the political arena.

*
I gratefully acknowledge the help of Raza Husain, Danny Friedman and Michelle Butler in
sharing with me their insights into these cases. The views expressed, and any errors, are mine.
1
Keir Starmer, Setting the record straight: human rights in an era of international terrorism
[2007] E.H.R.L.R. 123. See also Conor Gearty, Rethinking civil liberties in a counter-terrorism
world [2007] E.H.R.L.R. 111.
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Case Analysis Adam Sandell 121

The United Kingdoms most recent instalment of this story began at the end of 2001
with the enactment of statutory provisions allowing for the indefinite detention of non-
UK nationals whom the Home Secretary suspected of involvement in terrorist activity.2
In November 2004, the Judicial Committee of the House of Lords found the provision
to be irrational, disproportionate and discriminatory. It violated Arts 5 (liberty) and
14 (discrimination) of the European Convention on Human Rights (ECHR).3 Those
rights are provided for within UK domestic law by way of the Human Rights Act 1998
(HRA). So the current regime, contained in the Prevention of Terrorism Act 2005, was
enacted. It allows the Home Secretary, in certain circumstances and with some judicial
supervision, to deprive individuals suspected of terrorist-related activity of a broad
range of freedoms, notably the freedom of movement, by imposing control orders upon
them.
Underpinning this are provisions varying the evidential and procedural rules within
which judicial hearings on control orders operate.4 The effect of these is to allow
intelligence evidence to be used in support of control orders without its disclosure to the
recipient of the order. The modified rules allow for hearings to be conducted in private,
and for those against whom control orders are sought, and their lawyers, to be excluded
(closed proceedings).5 They allow for the interests of excluded parties to be represented
by security-cleared special advocates, who have sight of closed material but are then
prohibited from communicating with those whose interests they represent.6
These are exceptional provisions. They allow the executive to curtail individuals
freedom on the basis of reasonable grounds for suspicion, proven in civil proceedings to
the balance of probabilities, using secret evidence in hearings from which those subject
to the control orders and those they instruct may be excluded.
It is within this context that a panel of five Law Lords considered, for the first time,
the boundaries of the 2005 Acts control order provisions and their compatibility with
Arts 5 and 6 ECHR. This note analyses cases involving control orders against nine
individuals, heard together and decided in three linked judgments.

Secretary of State for the Home Department v JJ [2007] UKHL 45; [2007] 3 W.L.R. 642
Facts

The first case concerned six Iraqi and Iranian nationals who were suspected by the
Home Secretary of involvement in terrorism-related activities and of posing a threat to
the public. Each was subject to a stringent control order. They were required to wear
electronic monitoring tags and to remain within their one-bedroom flats other than
between 10.00 and 16.00. They were required to telephone a monitoring company before
going out at the end of their curfew, and upon their return prior to its onset. Other than

2
Anti-terrorism, Crime and Security Act 2001 ss.21 and 23.
3
A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68.
4
Prevention of Terrorism Act 2005 Sch.; Civil Procedure (Amendment No.2) Rules 2005 (SI
2005/656).
5
CPR r.76.22.
6
CPR rr.76.2376.30.
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122 Liberty, Fairness and the UK Control Order Cases

in an emergency no visitors were allowed to visit without Home Office authorisation,


nor were the men allowed to arrange to meet anyone unauthorised outside of their
homes. The police were permitted to search their homes at any time, and to remove any
items. The respondents could neither possess nor use any communications equipment
other than a fixed telephone line, and they were prohibited from using the internet.
They could each attend only one Home Office-approved mosque. They could not leave
a pre-defined geographical area which, for all but one man, excluded any area in
which they had previously lived. Of those permitted to work, none had done so during
the six-hour period when the curfew did not operate. They received subsistence-level
benefits, mostly in vouchers. A request by one to study at a college outside his area was
refused.7
The principal question arising was whether these conditions amounted to a
deprivation of the right to liberty provided by Art.5(1) ECHR.

Decision

The court held that the orders in this case violated the Art.5(1) ECHR right to liberty,
and were therefore unlawful. As the Home Secretary had no power to make such orders
they were quashed, not modified.
Lord Brown alone suggested that confinement not exceeding 16 hours a day would be
insufficiently stringent to effect a deprivation of liberty; above that threshold, Art.5(1)
would be breached.

Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2007] 3
W.L.R. 681
Facts

The Home Secretary applied for control orders against AF and MB. The open statements
against AF alleged that he had links with Libyan extremists; the open statements against
MB alleged that he was an Islamic extremist who intended to travel to Iraq to fight
against coalition forces. The evidence supporting these allegations was contained in
the closed material. Neither man, therefore, knew the case against him. The order
against AF included a 14-hour curfew in a flat he was already occupying with a family
member, restrictions on contacts with others, and other requirements. The order against
MB involved no curfew or restrictions on social contacts: he was required to live at a
specified address and to report to his local police station daily, and was subject to travel
restrictions.
Questions determined on appeal included: (i) whether the terms of the control
orders deprived AF or MB of their liberty contrary to Art.5; (ii) whether control orders
involved the determination of a criminal charge for the purposes of Art.6; (iii) whether
the modified procedural and evidential rules violated Art.6, either generally or in these
instances; and (iv) remedies, if required.

7
The details may be found in the first annex to the first instance judgment of Sullivan J.
in Secretary of State for the Home Department v JJ [2006] EWHC Admin 1623 and at [20] of Lord
Binghams judgment in JJ.
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Case Analysis Adam Sandell 123

Decision

Following their decision in JJ above, the Lords unanimously found that the 14-hour
curfew did not constitute a deprivation of AFs liberty. They held that the imposition
of a control order did not involve the determination of a criminal charge, although
the Art.6(1) right to a fair civil trial requires procedural protection commensurate with
the gravity of the control orders potential consequences. While the closed evidence
procedure is not inevitably procedurally unfair, neither AF nor MB had been informed
of the accusations levelled against them and so had not had the benefit of a fair hearing.
The Court held that the modified procedural rule should be read so as to give it effect
only when it is consistent with Art.6 ECHR to do so.
Lord Hoffmann dissented, holding that, in principle, the special advocate procedure
provides sufficient safeguards to satisfy Art.6.

Secretary of State for the Home Department v E [2007] UKHL 47; [2007] 3 W.L.R. 720
Facts

The Home Secretary imposed a control order upon E. The requirements included a 12-
hour curfew in his current home, with his wife and children, the wearing of an electronic
tag, restrictions on social contacts, searches of his home by the police at any time, and
other conditions. The Home Secretary subsequently became aware of judgments in
criminal proceedings in Belgium implicating E in terrorism-related offences. Section 8
of the Prevention of Terrorism Act 2005 required the police to review the possibility of
prosecution for terrorism-related offences throughout the period of the control order,
and obliged the Home Secretary to consult with the police before making a control
order. The Home Secretary did not forward the Belgian judgments to the police. He
subsequently consulted the police about the prospects of prosecution and was advised
that there was insufficient evidence, so renewed the control order. E and his wife
appealed.

Decision

Following their decision in JJ above, the Lords held that the control order did not violate
Es Art.5 right to liberty. Their Lordships held that the s.8 requirement implied a duty
upon the Home Secretary to do what she could to ensure that the continuing review
is meaningful. A breach of the requirement to consult the police about the prospect of
successfully bringing a prosecution might invalidate an order where, but for the breach,
the individual could and should have been prosecuted with a reasonable prospect of
success. E could not have been successfully prosecuted at the material time, breach or
no breach, so his control order was validly made. Consultation was not a condition
precedent to the making of a control order.

Analysis
The interdependent rights engaged by the control order regime, the entitlements to
liberty and to a fair hearing, lie at the heart of seminal human rights instruments
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124 Liberty, Fairness and the UK Control Order Cases

from the Magna Carta to the international documents of the last century.8 These cases
represent a somewhat cautious step in the judicial wing of the debate about these
rights contemporary boundaries. Scrutinised closely, they contain mixed messages. But
the thrust is clear: for the purposes of combating terrorism, significant inroads into
core civil liberties may, in the Law Lords judgment, be compatible with the European
Convention.

Civil control orders and criminal charges

Are these criminal proceedings?

Control orders are, prima facie, civil measures. Article 6 ECHR distinguishes between
civil matters and criminal charges. For both, the procedural safeguards insisted upon
by the Convention and the jurisprudence of the European Court are considerable. The
right to a fair trial is the right without which all others are legally otiose. But important
additional safeguards are extended to those charged with criminal offences. These
include the presumption of innocence9 and the unqualified minimum right to examine
or have examined witnesses against [the defendant] and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against
him.10 For AF it was argued that control order proceedings engage the criminal limbs
of Art.6 or, alternatively, that they should attract the same procedural protections.
This accords with the view of the legislatures Joint Committee on Human Rights:

. . . [N]on-derogating control orders of the kind which, according to Lord Carlile


[the governments independent reviewer of terrorism legislation], have so far been
used in most if not all cases, amount to the determination of a criminal charge
against the individual who is the subject of the order, for three reasons.11

Those reasons were, first, that the orders are imposed because of conduct of a particularly
serious criminal nature; secondly, the nature of the restrictions imposed are of a nature
and severity equivalent to a criminal penalty; and, thirdly, their effectively indefinite
duration is tantamount to a criminal sanction.
A fourth reason might, inductively, be understood from the requirements that the
Home Secretary and the police liaise about the possibility of a criminal prosecution prior
to making a control order.12 It is implicit in the regime and accepted by the Government
that criminal prosecutions are, for human rights reasons, the preferred option and that

8
In particular, arts 49 of the French Declaration des droits de lhomme et du citoyen; the fifth
and sixth amendments to the American Bill of Rights; Arts 3, 8, 9, 10 and 13 of the Universal
Declaration of Human Rights, 1948; Arts 5 and 6 ECHR; Arts 7 and 8 of the American Convention
on Human Rights, 1969; Arts 6 and 7 of the African Charter on Human and Peoples Rights, 1981.
9
Art.6(2) ECHR.
10
Art.6(3)(d) ECHR.
11
Joint Committee on Human Rights. Twelfth Report of Session 20052006, HL Paper No.122,
HC No.915, para.50.
12
Prevention of Terrorism Act 2005 s.8.
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control orders are a final resort.13 Control orders exist to prevent criminal conduct. One
might conclude that, when the standard of proof is merely to the balance of probabilities,
the remaining procedural protections that would be enjoyed by individuals were they
instead to be charged with a crime must apply a fortiori.
In the Strasbourg jurisprudence the determination of whether a dispute is civil or
criminal for the purposes of Art.6 involves three considerations.14 These are: the formal
classification of the matter in domestic legal system, the nature of the offence, and the
severity of the penalty. Of these three considerations, the firstthe formal classification
of the matteris the starting point but also the least important: criminal charge has an
autonomous Convention meaning that cannot be escaped through creative packaging.15
The suspicions that may trigger control orders are suspicions of criminal activity.16
As far as the consequences of the orders are concerned, Lord Bingham (for the majority)
held in JJ that:

. . . [T]he [first instance] judges analogy with detention in an open prison was apt,
save that the controlled persons did not enjoy the association with others and the
access to entertainment facilities which a prisoner in an open prison would expect
to enjoy.17

In MB and AF, however, the Law Lords held unanimously that non-derogating control
order proceedings do not involve the determination of a criminal charge for the purposes
of the Convention. Lord Binghams is the only fully reasoned judgment on this question.
His Lordship reached this conclusion essentially on the grounds that the purpose of the
control order regime is preventative, not punitive.18
A close reading of the Strasbourg approach to the question, as established in Engel and
ensuing jurisprudence, suggests that it turns upon consequences, not upon legislative
or executive purpose.19 This is consistent with the principle that states own labelling of
provisions as civil or criminal is not decisive. Whether the Lords reasoning follows this
approach is, it is respectfully suggested, moot.
Softening the blow somewhat, the alternative assertion made on behalf of AF,
that the consequences of control orders may be sufficiently stringent to demand
procedural protection commensurate with the gravity of the potential consequences,

13
See, e.g. the comments of the then Home Secretary John Reid in the Home Office press
release of February 19, 2007, http://press.homeoffice.gov.uk/press-releases/lord-carlile-report [Accessed
December 21, 2007] and the explanation of control orders provided by the UK security service MI5,
http://www.mi5.gov.uk/output/Page307.html [Accessed December 21, 2007]. The Home Secretary
accepted, in his written submissions in Secretary of State for the Home Department v E [2007] UKHL
47; [2007] 3 W.L.R. 720, that control orders should only be made where prosecution is not realistic
(at [14]).
14
Engel v Netherlands (1976) 1 E.H.R.R. 647 at [82].
15
Ozturk
v Germany (1984) 6 E.H.R.R. 409 at [49].
16
See A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68, per
Baroness Hale at [223].
17
JJ [2007] UKHL 45; [2007] 3 W.L.R. 642 at [24].
18
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [24].
19
(1976) 1 E.H.R.R. 647 at [82].
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126 Liberty, Fairness and the UK Control Order Cases

was upheld.20 What this might mean in practice became apparent when the Law Lords
considered the implications of the special advocate procedure, below.

The duty to consider prosecution

The duties with which the Home Secretary and the police are burdened by s.8 of the
Prevention of Terrorism Act 2005 do not, when read in isolation, appear to be onerous
ones. They explicitly require merely consultation, communication and review.21 At the
Court of Appeal the then Home Secretary had argued that this duty required him to do
no more than periodically ask the police whether the prospect of successful prosecution
had increased.22 To this Lord Bingham proffered a gentle judicial reprimand: it is
implicit in the duty that the Home Secretary must do what she reasonably can to
ensure that the continuing review is meaningful, as indeed the new incumbent had
acknowledged.23 But beyond this the Lords did not go. In E, the duty of continuing
review was either not appreciated or taken insufficiently seriously. The Lords accepted
that, had the duty been properly discharged by the Home Secretary (by communicating
the Belgian judgments to the police), a prosecution would not have resulted at a material
time. They left a door ajar: the possibility of quashing a control order if, but for a breach
of the s.8(2) duty, an individual might have been prosecuted with a reasonable prospect
of success. But the test applied by the Court of Appeal and approved by Lord Bingham
was one of material contribution to and vitiation of the decision to make a control
order.24 Control orders are immune to breaches failing that test. Neither compliance
with the s.8(2) duty, nor the absence of a realistic prospect of prosecution, are conditions
precedent for the making by the Home Secretary of a control order.25
This creates a peculiar situation. The Government and the Judicial Committee of
the House of Lords are in agreement that control orders should be made only when
individuals cannot realistically be prosecuted for a terrorism-related offence.26 Following
MB and AF (above), control orders are not criminal matters for the purposes of Art.6.
And the consequence of the Lords decision in E would seem to be that the protections
apparently afforded by s.8 are, if not quite toothless, distinctly gummy. With respect to
Lord Binghams considered and contrary view,27 it seems implausible that this was the
legislatures intention in imposing these requirements upon the regime.

Special advocates and fair trial rights

The variations to the procedural and evidential rules that are permitted in hearings
connected with control orders28 are, by any standard, substantial. The civil courts

20
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [24].
21
Prevention of Terrorism Act 2005 s.8(2)(5).
22
E [2007] EWCA Civ 459; [2007] 3 W.L.R. 1 at [96].
23
E [2007] UKHL 47; [2007] 3 W.L.R. 720 at [18].
24
E [2007] EWCA Civ 459, [2007] 3 W.L.R. 1 at [105]; [2007] UKHL 7 at [20] and [21].
25
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [15] and [16].
26
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [14].
27
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [16].
28
Prevention of Terrorism Act 2005 Sch.; Civil Procedure (Amendment No.2) Rules 2005 (SI
2005/656).
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overriding objective is, as it should be, to deal with cases justly.29 This includes, so far
as is practicable, ensuring that the parties are on an equal footing30 and ensuring that
the case is dealt with fairly.31 The modified rules require that these objectives be given
effect in a way compatible with the duty to ensure that information is not disclosed
contrary to the public interest.32 The rules provide for parties and their representatives
to be excluded entirely from hearings either in pursuit of this objective or, troublingly,
for any other good reason.33 No other possible good reasons are suggested. Special
advocates, where appointed, may not communicate with those they represent, or their
legal representatives, once they have been served with closed material.34
Concerns about the fairness of the procedures are not new. Several special advocates
have previously resigned in protest.35 Material grounds for concerns were highlighted
when a special advocate serendipitously involved in two hearings relating to people
suspected of terrorism realised that security service evidence advanced in one hearing
contradicted that advanced in another.36
Their Lordships were undoubtedly right in finding that the special advocate procedure
does go at least some way to redressing the inequality of arms that necessarily exists
in such proceedings.37 The majority agreed, however, that the procedure is far from
perfect when the special advocate, having been informed of the allegations against the
person whose interests she represents, cannot then take instructions from him.
The reasons upon which the Home Secretary relied in asserting that MB intended to
travel to Iraq to fight against coalition forces were contained in closed material to which
MB, and those whom he was able properly to instruct, were denied access. In Lord
Binghams words:

It is a case in which, on the judges assessment which the Court of Appeal did
not displace, MB was confronted by a bare, unsubstantiated assertion which he
could do no more than deny. I have difficulty in accepting that MB has enjoyed a
substantial measure of procedural justice, or that the very essence of the right to a
fair hearing has not been impaired.38

The test applied by Lord Bingham was whether the process as a whole involved
significant injustice to the controlled person.39 In these cases, it had done.40 Lord Brown
considered that the right to a fair hearing is not merely an absolute right but one of

29
CPR r.1.1(1).
30
CPR r.1.1(2)(a).
31
CPR r.1.1(2)(d).
32
CPR r.76.2(2).
33
CPR r.76.22.
34
CPR r.76.25.
35
http://news.bbc.co.uk/1/hi/uk politics/4405415.stm [Accessed December 21, 2007].
36
http://news.bbc.co.uk/1/hi/uk/6042872.stm [Accessed December 21, 2007].
37
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [35], [54], [66], [85] and [90].
38
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [41].
39
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [35].
40
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [41] and [43].
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altogether too great importance to be sacrificed on the altar of terrorism control.41 The
majority agreed that the validity of these control orders required reconsideration.
Baroness Hale reached this conclusion via a different route. Her Ladyships starting
point was the courts duty under s.6(1) of the Human Rights Act 1998 to act in a way
compatible with Convention rights. The non-disclosure provision42 should therefore be
read and given effect except where to do so would be incompatible with the right of the
controlled person to a fair trial.43 Having considered a declaration of incompatibility
with Convention rights under s.4(2) of the Human Rights Act, the majority elected to
adopt Baroness Hales solution.
Baroness Hale considered, in particular, that the special advocate procedure has the
advantage of allowing cases to be proven using evidence other than that which may
have been obtained through the use of torture.44 Her Ladyship observed, somewhat
wryly, that experience elsewhere in the world has been that, if pushed, the authorities
discover that more can be disclosed than they first thought possible.45 If they do not,
the material cannot be relied upon.
On this issue Lord Hoffmann dissented. His Lordship recognised that the special
advocate procedure is imperfect, but noted the acceptance of the Strasbourg Court in
Chahal that reliance upon closed material may be unavoidable in matters of national
security.46 Lord Hoffmann did not think that we should put the Secretary of State in
such an impossible position [of having to disclose material that a judge considers it
would be contrary to the public interest to disclose] and I therefore [sic] agree with the
Court of Appeal that in principle the special advocate procedure provides sufficient
safeguards to satisfy article 6.47
What are the practical implications of this decision? A procedural rule has shifted.
Special advocates can argue for disclosure to those they represent on the grounds of
fairness, and need not frame arguments entirely within the overriding constraints of
public interest. Judges have acquired a power to require the Home Secretary to disclose
all evidence necessary for the individual to enjoy a fair hearing. The minds of the Home
Secretary and the security services may, in at least some cases, be applied to careful
consideration of the true risks to the public safety of disclosing information, and to
individuals rights to fair hearings. They may, on occasion, elect to manage public risk
in less intrusive ways.
It is not easy to dissect from the judgments a clean test to be applied in determining
whether the procedure adopted has afforded the respondent a sufficient measure of
procedural protection to comply with his Art.6(1) rights. Baroness Hale indicates that
the considerations are:
. . . [T]he nature of the case; what steps had been taken to explain the detail of the
allegations to the controlled person so that he could anticipate what the material

41
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [91].
42
Prevention of Terrorism Act 2005 Sch. para.4(3)(d).
43
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [72].
44
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [73].
45
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [72].
46
Chahal v United Kingdom (1996) 23 E.H.R.R. 413 at [131].
47
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [54].
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in support might be; what steps had been taken to summarise the closed material
in support without revealing names, dates or places; the nature and content of the
material withheld; how effectively the special advocate had been able to challenge
it on behalf of the controlled person; and what difference its disclosure might have
made.48
If the Home Secretary has reasonable grounds for suspicion on the basis of the open
material, the issue does not arise.49 If not, has the thrust of the case . . . been conveyed
to him by way of summary, redacted documents or anonymised statements?50 Where
possible, efforts must be made to enable special advocates to taken appropriate
instructions: Baroness Hale suggests consideration of leave to ask specific, carefully
tailored questions, and that special advocates might call or have called witnesses to
rebut closed material.51
The decision was hailed by one human rights group as a victory for fairness over
secrecy.52 It is certainly an incursion into the exceptional procedural framework within
which control orders operate. But the substance of that framework remains largely
intact. It was far from the wholesale declaration of incompatibility with Art.6 advocated
by some, and toyed with by Lord Bingham.53
More remotely, if Baroness Hale is right in venturing that the security services may,
as a result, find themselves able to disclose rather more to those upon whom the Home
Secretary proposes to impose a control order, it is conceivable that this will focus
governmental minds again upon the possibility of permitting intercept evidence to be
used in criminal proceedings, as it is elsewhere in the world. The only opponent to
doing so has been the Government. Others have argued for correcting this self-imposed
anomaly precisely in order to enable criminal prosecutions to be brought, with all their
associated procedural safeguards and sentencing options, in situations where control
orders are currently sought.54 If a governmental change of heart on this were to be an
indirect consequence of the judgment, it would be to applause from several quarters.

Control orders and liberty

Article 5(1) ECHR allows for deprivation of liberty in certain circumstances, such as
after conviction, or from persons of unsound mind. The circumstances do not include
anything like control orders. JJ therefore turned upon whether the control orders
amounted to a deprivation of liberty.
Deprivation of liberty has a specific Convention meaning. It deals with physical
liberty.55 Article 5 does not apply to restriction of liberty; the distinction from deprivation

48
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [65].
49
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [41], per Lord Bingham.
50
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [41]; echoed by Baroness Hale at [66].
51
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [66].
52
JUSTICE press release, October 31, 2007, available from http://www.justice.org.uk.
53
MB and AF [2007] UKHL 46; [2007] 3 W.L.R. 681 at [44].
54
See Conor Gearty, London Review of Books, March 17, 2005; Keir Starmer, Setting the record
straight: human rights in an era of international terrorism [2007] E.H.R.L.R. 123, 129130.
55
Guzzardi v Italy (1980) 3 E.H.R.R. 333 at [92]; Engel (1976) 1 E.H.R.R. 647 at [58].
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130 Liberty, Fairness and the UK Control Order Cases

of liberty is one of degree or intensity, not one of nature or substance. 56 (Article 2 of


Protocol No.4 to the European Convention provides for the right to liberty of movement
and freedom to choose ones residence. The United Kingdom has not ratified this
Protocol.) But deprivation covers not just prison or strict arrest: it takes numerous other
forms.57 It is the concrete situation of the individual that is the starting point.58 Lord
Bingham considered it inappropriate to reach a conclusion based solely upon the period
of confinement when Engel requires that account should be taken of a whole range of
factors such as the nature, duration, effects and manner of execution or implementation
of the penalty or measure in question.59
The control orders imposed upon JJ and his five co-respondents, outlined above,
involved 18-hour curfews in small flats in which all but one had not lived previously.
They had a range of other restrictive conditions attached. Sullivan J., in the High Court,
drew a comparison with an open prison and considered that the orders went far
beyond the restrictions in those cases where the European Court of Human Rights has
concluded that there has been a restriction upon but not a deprivation of liberty.60 The
majority of the Lords agreed.
Lord Brown, in that majority, went further. He considered what degree of interference
with liberty by a curfew would amount to a violation of Art.5 and, as a matter of pure
opinion,61 judged that the threshold lay at 16 hours. This clearly becomes persuasive
authority, especially in the context of the particularly constraining package of ancillary
requirements imposed upon the respondents in JJ. But whether this simple threshold
can be reconciled with the requirement, established by the Strasbourg Court in Engel,
to consider a whole range of factors such as the nature, duration, effects and manner
of execution of the penalty or measure in question,62 is questionable. Can there really
be no circumstances at all in which a curfew of fewer than 16 hours would constitute a
deprivation of liberty?
Again Lord Hoffman dissented, holding that Art.5 deals with literal physical
restraint.63 Having held in the case of A that the provisions of the Anti-terrorism,
Crime and Security Act 2001 were incompatible with Art.5 ECHR,64 his Lordship felt
unable to conclude that Art.5 involved anything other than actual imprisonment.65
An immediate consequence of this judgment was that the challenges based upon
Art.5 to the control orders imposed upon MB, AF and E all failed. Another is that, where
the Home Secretary seeks future orders imposing curfews, it seems unlikely in the wake
of this judgment that she will seek to impose them for fewer than 16 hours. Better safe
than sorry.

56
Guzzardi (1980) 3 E.H.R.R. 333 at [93].
57
Guzzardi (1980) 3 E.H.R.R. 333 at [95].
58
Engel (1976) 1 E.H.R.R. 647 at [59].
59
Engel (1976) 1 E.H.R.R. 647 at [59]; JJ [2007] UKHL 45, [2007] 3 W.L.R. 642 at [16].
60
[2006] EWHC Admin 1623 at [73] and [74].
61
JJ [2007] UKHL 45; [2007] 3 W.L.R. 642 at [102], quoting Guzzardi (1980) 3 E.H.R.R. 333 at
[93].
62
Engel (1976) 1 E.H.R.R. 647 at [59].
63
JJ [2007] UKHL 45; [2007] 3 W.L.R. 642 at [36].
64
A [2004] UKHL 56; [2005] 2 A.C. 68.
65
JJ [2007] UKHL 45; [2007] 3 W.L.R. 642 at [44].
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Conclusions
Could the Lords have found the whole control order regime to have been unlawful?
Possibly. The Strasbourg jurisprudence upon which their rulings on criminality and
liberty were based, the lineages running from Engel and Guzzardi respectively, have not
dealt with anything quite like control orders and can certainly be read as demanding
rather more liberal results for these cases. The threshold below which a hearing is unfair
is (it is submitted) a matter not of nice legal analysis but, in the end, a judgment call.
Had the Lords held the procedure to be intrinsically unfair, they would have found
themselves in good company.
Having broadly upheld the regime, certain problems are resolved neatly, not least
by Baroness Hales insistence that procedural modifications not be permitted to
compromise the Art.6(1) right to a fair trial. But loose ends remain. Exactly what
level of procedural protection will be commensurate with the gravity of the potential
consequences of any particular control order? Justice Chaskalson, former South African
Chief Justice, has suggested extra-judicially that there is a difference between keeping
some information secret, and keeping information which may be decisive, secret,66 a
distinction that seems to lie near the kernel of the right to a fair hearing.
Most worrying are the boundaries around the Art.5 right to liberty drawn by the
Lords in JJ. The splitting, in the Convention, of rights to liberty into those provided by
Art.5 and those provided by Protocol No.4 (to those in that large majority of Council
of Europe States that have ratified this Protocol67 ) is problematic. Each provision must
serve a distinct purpose. If the Convention itself provides no protection to someone
restricted in a fashion compared unfavourably to an open prison, the question must
arise as to quite what practical protection Art.5 provides. The Strasbourg jurisprudence
on the meaning of Art.5 is constraining. The Lords decision in JJ does not take the
articles interpretation in an encouraging direction.
The possibility of, and comparison with, criminal prosecution run as threads through
the reasoning of all three cases. The Law Lords were unable to exorcise the phantom
of a conflict between human rights and protection from terrorist-related activity. The
opportunity to do so remains for the Government and the legislature, perhaps with
the encouragement of the European Court of Human Rights. Repealing the prohibition
on the use of intercept evidence for the purposes of bringing criminal prosecutions68
would be a good start.

66
Arthur Chaskalson, The widening gyre: counter-terrorism, human rights and the rule
of law, Seventh Sir David Williams Lecture, p.16, http://ejp.icj.org/IMG/Speech AC May 2007.pdf
[Accessed December 21, 2007].
67
Protocol No.4 has been ratified by 39 states. The naysayers are Andorra, Greece,
Liechtenstein, Spain, Switzerland, Turkey and the UK.
68
Regulation of Investigatory Powers Act 2000 ss.1718.
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Cases and Comment
Selected decisions from the European Court of Human Rights for August, September
and October 2007.
Editors: James Welch, solicitor, Legal Director of Liberty, and Anna Fairclough, solicitor,
Liberty.
Contributors: Catharina Harby (lawyer, AIRE Centre), Alex Gask (solicitor, Liberty), Deirdre
Malone (Advice and Information Officer, Liberty), Adam Goodyer, Ashley Dunford, Kamran
Rabbani and Katherine Hughes (all seconded trainee solicitors, Liberty).
Note on Court judgments: European Court judgments are either delivered by a chamber of seven
judges from one of the Courts five sections or by a Grand Chamber of seventeen judges. Within
three months of a chamber judgment either the applicant or the respondent government may
request that the case be referred to the Grand Chamber. A judgment of the Grand Chamber
is final. A chamber judgment becomes final when the parties confirm that they will not seek a
referral to the Grand Chamber, when three months have elapsed from the date of the chamber
judgment without any request for a referral, or, if there has been such a request, when a panel of
the Grand Chamber rejects it.

Adverse possession
Control of useArt.1 of Protocol No.1

Adverse possession; Control of use of property; Peaceful enjoyment of possessions;


Registered land

J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v United Kingdom
(Application No.44302/02)
European Court of Human Rights (Grand Chamber): Judgment of August 30, 2007.

Facts

The second applicant, a property development company, was the registered owner of
a plot of 23 hectares of agricultural land. Mr and Mrs Graham, adjacent land owners,
occupied the land under a grazing agreement until December 1983. A further grazing
agreement was refused by the applicants and a letter sent to the Grahams requiring
them to vacate the land. The Grahams continued to use the land for grazing and the
applicants made no contact with them. The evidence showed that the Grahams would
happily have paid for the grazing had they been asked to do so.
In 1997 the Grahams registered cautions against the applicants title on the ground that
they had obtained title by adverse possession. The applicants then issued proceedings
seeking possession of the land. The Grahams challenged the claims under the Limitation
Act 1980 and the Land Registration Act 1925.
The High Court held that the Grahams were entitled to be registered as proprietors of
the land. The Court of Appeal reversed the decision, on the ground that the Grahams did
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Cases and Comment 133

not have the necessary intention to possess the land, and the applicants were therefore
not dispossessed of it. The House of Lords allowed the Grahams appeal.
Relying on Art.1 of Protocol No.1, the applicants applied to the European Court
and the case was determined by the Chamber (Former Fourth Section) on November
15, 2005. The Chamber found a violation of Art.1 of Protocol No.1. The Government
requested that the case be referred to the Grand Chamber.

Held

There was no violation of Art.1 of Protocol No.1 (by ten votes to seven).
The Governments argument that the case concerned limitation periods and should
therefore be dealt with solely under Art.6 was rejected. There is nothing in principle to
preclude the examination of a claim under Art.1 of Protocol No.1 where the complaint
is directed against legislation concerning property rights.
The statutory provisions which resulted in the applicant companies loss of beneficial
ownership were not intended to deprive beneficial owners of their ownership, but
rather to regulate questions of title in the context of the use and ownership of land as
between individuals. The applicants were therefore affected not by a deprivation of
possessions but rather a control of use within the meaning of the second paragraph
of Art.1 of Protocol No.1.
The aim of the interference was to regulate possession and title. The existence of a
12-year limitation period for actions for recovery of land pursues a legitimate aim in
the general interest. As to the specific general interest in the extinguishment of title
and the attribution of a new title at the end of the limitation period, the margin of
appreciation is wide and the Court will accept the legislatures judgment as to what is
in the public interest unless that judgment is manifestly without reasonable foundation.
To extinguish title where the former owner is prevented by application of law from
recovering possession of land cannot be said to be manifestly without reasonable
foundation.
As to proportionality, even though the general position in English law is that the
expiry of a limitation period bars the remedy but not the right, the Court accepted that
where an action for recovery of land is statute-barred, termination of the title of the
paper owner does little more than regularise the respective positions, namely to confirm
the person who has acquired title as the owner. The legislation in question had been in
force for many years and the applicants had not suggested that the conclusions of the
domestic courts were unforeseeable. The 12-year limitation period was relatively long,
and very little action would have been required by the applicant companies to stop time
running, either by seeking rent so as to prevent the possession from being adverse,
or by commencing an action for recovery.
Since the Court (unlike the Chamber) found that the interference amounted to a
control of use rather than a deprivation, the case law on compensation was not directly
applicable. A requirement of compensation for a party who had failed to observe a
limitation period would sit uneasily alongside the very concept of limitation periods.
Nor were the applicant companies without procedural protection (as the Chamber
judgment had found). They could have agreed terms with the adverse possessors;
brought a court action for repossession of the land which would have stopped time
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running for the purposes of adverse possession; and even after expiry of the period they
could argue before the courts, as they had, that the possession had not been adverse.
In response to the applicants contention that their loss was so great, and the windfall
to the beneficiaries of the adverse possession so significant, that this itself upset the fair
balance required by Art.1 Protocol No.1, the Court held that the possibility of a windfall
would not affect the overall assessment of proportionality of the legislation. Limitation
periods, if they are to fulfil their purpose, must apply regardless of the size of the claim
and the value of the land can be of no consequence.

Cases considered

AGOSI v United Kingdom (1987) 9 E.H.R.R. 1


Air Canada v United Kingdom (1995) 20 E.H.R.R. 150
Anheuser-Busch Inc v Portugal (2007) 45 E.H.R.R. 36
Beyeler v Italy (2003) 36 E.H.R.R. 5
CM v France (App. No.28078/95), decision of June 26, 2001
Gasus Dosier- und Fordertechnik GmbH v Netherlands (1995) 20 E.H.R.R. 403
Immobiliare Saffi v Italy (1999) 30 E.H.R.R. 756
Jahn v Germany (2006) 42 E.H.R.R. 49
James v United Kingdom (1986) 8 E.H.R.R. 123
Jokela v Finland (2003) 37 E.H.R.R. 26
Kopecky v Slovakia (2005) 41 E.H.R.R. 43
Papachelas v Greece (1999) 30 E.H.R.R. 923
Pla and Puncernau v Andorra (2006) 42 E.H.R.R. 25
Stubbings v United Kingdom (1996) 23 E.H.R.R. 213
VgT Verein gegen Tierfabriken v Switzerland (2002) 34 E.H.R.R. 4
Zvolsky and Zvolska v Czech Republic (App. No.46129/99), judgment of November 12,
2002

Commentary

The major departure from the Chamber judgment is that the rules on adverse possession
constitute a control on use rather than a deprivation of property. As well as being an
important conceptual distinction, the practical implications of this finding are important.
As regards deprivations a fair balance impliedly requires the payment of at least
some compensation in all but exceptional cases. However, as regards control on use
there is no inherent right to compensation.
In the Grand Chamber a significant number of judges dissented. Judges Rozakis,
Bratza, Tsatsa-Nikolovska, Gyulumyan and Sikuta stated that the extinction of the
applicant companys beneficial interest in the land of which they were the registered
owners was in violation of their rights to peaceful enjoyment of property under Art.1
of Protocol No.1. The main point of divergence with the majority was on the question
of whether a fair balance was struck, or whether the applicant was required to bear an
individual and excessive burden. While they accepted that where land was abandoned
it might be in the general interest that it should be acquired by someone who would
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put it to effective use, they did not accept that the general interest would extend to
depriving a registered landowner of his beneficial title to land except by a proper
process of compulsory acquisition for fair compensation. They noted that the impact
of the law on the registered landowner was exceptionally serious and that, while
the absence of compensation of itself could not be regarded as rendering the control of
use disproportionate, the lack made the loss of beneficial ownership more serious and
required particularly strong measures of protection if a fair balance was to be preserved.
They did not accept that the procedural protections cited by the majority were sufficient
for this purpose. Judges Loucaides and Kovler did not even go so far as to agree that
adverse possession of registered land serves a legitimate aim since ownership of the
land would not be in doubt.
It should be noted that although s.96 of the Land Registration Act 2002 altered the
rules on adverse possession for registered land, the old 12-year rule remains in effect for
unregistered land. It also appears that this judgment will apply to the new rules, as well
as the old, because the fundamental question posed was whether it was a breach of Art.1
of Protocol No.1 for landowners to be deprived of ownership without compensation
through adverse possession (whether that is through the operation of common law or
statutory provision). The Grand Chamber explicitly did not limit the judgment to the
specific facts of the Pye case.

Prostitution
Prostitutionprostitute required to make social security contributionsforced
prostitutionArts 3 and 4(2)

Contributions; Forced labour; Inhuman or degrading treatment or punishment;


Prostitution; Slavery; Social security; Surcharges

Tremblay v France (Application No.37194/02)


European Court of Human Rights (Second Section): Judgment of September 11, 2007.

Facts

The applicant, Viviane Tremblay, was a French national who lived and worked as a
prostitute in Paris. Having decided to give up prostitution, she applied to the social
security contributions agency (URSSAF) on August 20, 1990 to register as a self-
employed decorator. On finding that the applicant had in fact been a prostitute, the
URSSAF registered her as self-employed under the heading profession X as from 1986
and began to send her demands for the back-payment of social security contributions
with surcharges for delayed payment. In 1991 the National Institute for Statistics and
Economic Studies entered the applicant on the national register of companies as a
management consultant under the liberal professions category. On the basis of this
entry the URSSAF claimed further contributions from her. The applicant challenged
these demands before the relevant French tribunals. The applicant was successful in
the Paris Social Security Tribunal but the decision was overturned by the Court of
Appeal, which ordered the applicant to pay 6,606.07 by way of overdue social security
payments for the period January 1, 1992 to June 30, 1996. An appeal to the Cour de
Cassation based on Arts 3 and 4 ECHR was declared inadmissible on April 11, 2002.
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From information provided by the Government it appeared that at least 15 demands


had been sent to the applicant for contributions due for the years 1988 to 1997 inclusive.
At least 33,000.19 had been claimed from the applicant in social security contributions
with a further 5,196.82 in additional charges.
The applicant applied to the European Court of Human Rights alleging that the
obligation to pay the social security contributions and surcharges had the effect of
forcing her back into prostitution and that this infringed her rights under Arts 3 and
4(2).

Held

(1) There had been no violation of Art.3 (by six votes to one).
The Court noted that the applicant complained that she was forced by the attitude of
the URSSAF to continue working as a prostitute; she did not claim that prostitution was
in itself inhuman or degrading within the meaning of Art.3. The Court was therefore
not required to rule on this point. It noted, however, that there was no European
consensus on how prostitution should be viewed from the perspective of Art.3. Some
members of the Council of Europe, France among them, had opted for an abolitionist
approach: while considered incompatible with human dignity, prostitution was neither
prohibitedin contrast with living off the proceeds of prostitution, which is a criminal
offencenor regulated. France was one of 25 Member States which had ratified the
1949 United Nations Convention on the Suppression of the Traffic in Persons and the
Exploitation of the Prostitution of Others (the Trafficking Convention), the preamble to
which states that prostitution is incompatible with human rights and human dignity.
Some other Member States took a prohibitionist stanceprostitution is forbidden and
prostitutes and their clients are subject to criminal sanctionswhile others sought to
regulate and control prostitution.
The Court had no hesitation, however, in making clear its view that forced prostitution
was incompatible with the rights and dignity of the human person. More controversial
was whether, as some maintain, prostitution is always forced, being compelled by social
and economic circumstances. This was not an issue that the Court had to decide in this
case.
The issue here was whether, where a state body by whatever means forced someone
to work as a prostitute, this amounted to inhuman or degrading treatment within the
meaning of Art.3. The Court therefore had to consider whether the applicant was indeed
forced by the URSSAF to continue working as a prostitute. It did not doubt that she
genuinely intended to give up prostitution.
The Court noted that a total of 40,000 of contributions and surcharges were claimed
from the applicant. The Court recognised that these debts would have made it difficult
for the applicant to give up prostitution and would have hindered her reintegration
into society. However, the Court was not convinced that the applicant could properly
maintain that she was forced by the URSSAF to continue working as a prostitute. Neither
the URSSAF nor any other state authority had required her to fund her contributions
through continuing to work as a prostitute and the applicant had failed to provide
concrete evidence that it was impossible for her to fund the payments by other means.
Further, while the URSSAF had displayed a degree of inflexibility towards her, it had
been prepared to enter into arrangements, such as payments by instalments, to make
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it easier for her to pay. The Government pointed out that the URSSAF had agreed on
one occasion to payments by instalments but that the applicant had not requested other
measures of this nature.
There was therefore no breach of Art.3.
(2) No separate issue arose under Art.4.

Cases considered

Siliadin v France (2006) 43 E.H.R.R. 16


Van der Mussele v Belgium (1983) 6 E.H.R.R. 163

Commentary

This appears to be the first case in which the Court has considered the issue of
prostitution. Its clear condemnation of forced prostitution is unsurprising. Much more
contentious is prostitution willingly entered into. The Court alludes to the argument
that prostitution can never be truly consensual, prostitutes being constrained by social
and economic circumstances. It also records the fact that members of the Council of
Europe respond to prostitution in very different ways. Whether and how the Court will
ever have to rule on consensual prostitution remains to be seen.
Judge Fura-Sandstrom
dissented from the majority on the issue of whether the
applicant was in fact forced by the URSSAF to continue working as a prostitute.
Two factors persuaded her that the French State bore responsibility under Art.3: the
considerable back-payments demanded of the applicant when it was clear that she had
no means of paying them other than through working as a prostitute, and the URSSAFs
persistence in seeking payment from her, the sums increasing with each demand.
She also pointed to the degree of ambiguity on the part of the French State. On the one
hand, as a signatory of the Trafficking Convention, it regards all prostitutes as victims
and has made it a criminal offence to live off the proceeds of prostitution; on the other
hand it profits itself from prostitution by requiring prostitutes to pay tax and social
security contributions on their earningsa bit like a pimp.

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Presumption of innocence
Presumption of innocenceacquittal for want of proofcivil/administrative proceedings linked
to criminal proceedingsArt.6(2) and Art.1 of Protocol No.1

Acquittals; Administrative law; Criminal proceedings; Freedom of expression;


Presumption of innocence; Right to fair and public hearing

Stavropoulos v Greece (Application No.35522/04)

European Court of Human Rights (First Section): Judgment of September 27, 2007.

Facts

In 1984 the applicant was allocated a house by the Workers Housing Association. It
was a condition of the allocation that he owned no other property that could serve as a
residence. The applicant made a declaration of his assets that made no mention of any
such property. In 1986, acting on a tip-off, the Association confirmed that the applicant
owned a property in the same region. It revoked the allocation on the grounds that he
was ineligible for rehousing both because he owned another property where he and his
family could live and by reason of the false declaration.
The applicant was prosecuted for fraud and making a false declaration. His conviction
at first instance was overturned on appeal in June 1991, the appeal court stating that,
having reviewed all the evidence, it had doubts as to his guilt.
Meanwhile the applicant appealed the decision to revoke the allocation to the Athens
administrative court. His appeal was rejected and he appealed. By the time that his
appeal was heard by the administrative court of appeal, the overturning of his criminal
conviction had become final. He asked that the court take account of the criminal
court of appeals judgment, in particular as proof that his failure to declare the other
property was not intentional. The court rejected his appeal. However, this decision was
overturned by the Council of State on the grounds that the administrative court of
appeal was wrong to hold that it was not bound by the criminal courts judgment; while
not bound by it the court should nonetheless have taken it into account. The case was
remitted back to the administrative court of appeal.
In February 2000 the administrative court of appeal again rejected the applicants
appeal against the revocation of the allocation. It noted that the applicant had failed to
declare all his assets and that he had not shown that this omission was not deliberate.
As to his acquittal on the charges of fraud and making a false declaration, the criminal
courts had not concluded that the offences alleged against the applicant were not made
out for want of wilful misrepresentation, but had allowed his appeal because there were
doubts as to his guilt. The Council of State rejected the applicants appeal against this
decision, stating that he had been acquitted because there were doubts as to his guilt
and not because it had been shown that the elements of the offences alleged against him
were not made out or for want of wilful misrepresentation.
The applicant applied to Court of Human Rights alleging breaches of Art. 6(2) and
Art.1 of Protocol No.1.
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Held

(1) The complaint under Art.6(2) was admissible but the complaint under Art.1 of
Protocol No.1 was inadmissible (unanimously).
The Court rejected the Greek Governments argument that Art. 6(2) was not applicable
because the procedures before the administrative courts did not relate to a criminal
accusation. The main issue for the administrative courtswhether the applicants failure
to declare his assets correctly was deliberate or notwas one of the constituent elements
of the offences of which the applicant was accused. The Council of State had recognised
the link between the two sets of proceedings by allowing the applicants first appeal
because the administrative court of appeal had failed to take account of the criminal
courts decision. There was a sufficient link between the two sets of proceedings for Art.
6(2) to be applicable.
As to Art.1 of Protocol No.1, the article does not protect a right to property which is
conditional. The allocation of housing was subject to conditions, one of which was that
the person applying should own no other property which could serve as a residence.
There was nothing that persuaded the Court that the domestic decision to revoke
the allocation was wrongly made. The complaint under Art.1 of Protocol No.1 was
inadmissible.
(2) There had been a violation of Art.6(1) (by six votes to one).
There was no qualitative difference between an acquittal on the grounds that an
allegation was not proven and one where there was no doubt as to the accuseds
innocence. The Court noted that the administrative courts had relied on the fact that
the applicant had been acquitted for want of proof in support of their conclusion that
his omission had been intentional. Both the administrative court of appeal and the
Council of State had used terms which went beyond the administrative framework of
the litigation and left no doubt as to the supposed intention of the applicant not to
include in his declaration all the immovable property that he owned.

Cases considered

Brualla Gomez de la Torre v Spain (2001) 33 E.H.R.R. 57


Cardot v France (1991) 13 E.H.R.R. 853
Castells v Spain (1992) 14 E.H.R.R. 445
Del Latte v Netherlands (2005) 41 E.H.R.R. 12
Diamantides v Greece (No.2) (App. No. 71563/01), judgment of May 19, 2005
Edificaciones March Gallego SA v Spain (2001) 33 E.H.R.R. 46
Garca Ruiz v Spain (2001) 31 E.H.R.R. 22
Iatridis v Greece (2000) 30 E.H.R.R. 97
Kopecky v Slovakia (2005) 41 E.H.R.R. 43
Lamanna v Austria (App. No.28923/95), judgment of July 10, 2001
Leutscher v Netherlands (1997) 24 E.H.R.R.181
Lavents v Latvia (App. No.58442/00), decision of November 28, 2002
Malhous v Czech Republic (App. No.33071/96), decision of December 13, 2000
Pine Valley Developments Ltd v Ireland (1992) 14 E.H.R.R. 319
Pressos Compania Naviera SA v Belgium (1996) 21 E.H.R.R. 301
Puig Panella v Spain (App. No.1483/02), judgment of April 25, 2006
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140 Cases and Comment

Ringvold v Norway (App. No.34964/97), judgment of February 11, 2003


Rushiti v Austria (2001) 33 E.H.R.R. 56
Sekanina v Austria (1994) 17 E.H.R.R. 221
Van der Mussele v Belgium (1984) 6 E.H.R.R. 163
Y v Norway (2005) 41 E.H.R.R. 7

Commentary

This is a puzzling case. The breach of Art.6(2) appears to have arisen because of the
language used by the administrative courts in considering the applicants acquittal
by the criminal courts. However, with one exception, the relevant passages of these
rulings are not reproduced in the judgment, so it is difficult to gauge exactly why
the Court considered them to offend against Art.6(2). Certainly, the formulation which
the Strasbourg Court does reproduce verbatim (albeit in a French translation of the
original Greeksee above) makes little sense; how can there have been doubt as to the
applicants guilt without there being doubt as to whether the elements of the offences
were made out or that he concealed his assets deliberately? Presumably it was this
ambiguity that led the majority of the Court to find a breach of Art.6(1).
In his dissenting judgment Judge Jebens points out that, while Art.6(2) requires
that civil courts respect acquittals by the criminal courts, they are not bound by their
assessments of the facts. This follows from the different standards of proof that apply
in the criminal and civil courts: proof beyond reasonable doubt and the balance of
probabilities. It is surprising that this very obvious point was not made in the judgment.
Perhaps on the facts of the case it simply was not relevant. Without more information
about the domestic courts judgments it is difficult to tell.

Enforcement
Enforcement of ECtHR judgmentrefusal by domestic courts to revise their judgment in the
light of an ECtHR judgmentwhether this amounted to a fresh breachArts 6(1) and 10

Advertisements; Animal welfare; Broadcasts; Enforcement; Freedom of expression;


Observations; Right to fair and public hearing

Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (Application No.32772/02)


European Court of Human Rights (Fifth Section): Judgment of October 4, 2007.

Facts

The applicant, Verein gegen Tierfabriken Schweiz (VgT), was a Swiss-registered animal
protection association focused on working against animal experimentation and battery
farming. As a reaction to meat industry commercials broadcast on television, the
applicant created its own television commercial showing a family of boars in the forest
followed by another sequence showing a crowded pig house where the conditions were
compared to a concentration camp. The message of the commercial was: Eat less meat
for the sake of your health, the animals and the environment.
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Permission to broadcast the commercial was refused by the company responsible for
television commercials, a decision upheld by the Federal Court on August 20, 1997.
The applicant association lodged an application with the European Court of Human
Rights, which in a judgment of June 28, 2001 held that the Swiss authorities refusal
to broadcast the commercial in question had breached the associations freedom of
expression under Art.10. It awarded the applicant association 20,000 Swiss francs
(approximately 12,000) for costs and expenses.
On December 1, 2001, on the basis of the Courts judgment, the applicant association
applied to the Federal Court for revision of the final domestic judgment prohibiting
the commercial from being broadcast. In their observations the Federal Department
of Environment, Transport, Energy and Communication and the Swiss Radio and
Television Company submitted that the request for revision should be refused. In a
judgment of April 29, 2002 the Federal Court refused the request for revision, finding
that the applicant association had not provided a sufficient explanation of the nature of
the amendment of the judgment and the redress being sought and had been unable to
show how revision of the judgment was the only means of affording redress. In addition,
the association had not sufficiently shown that it still had an interest in broadcasting the
commercial, which now appeared out of date, almost eight years after it had initially
intended to do so.
The Committee of Ministers of the Council of Europe had not been informed of the
Federal Courts refusal of the request for revision and accordingly ended its examination
of the applicant associations initial application by adopting a resolution in July 2003.
However, the resolution noted the possibility of lodging a request for revision with the
Federal Court.
In July 2002 the applicant association lodged the application in the present case with
the European Court. It claimed that it did not have the chance of responding to either
the Governments or the television companys observations before the Federal Court
considered its request for revision, resulting in a violation of Art.6(1). The Federal
Courts refusal had also constituted a violation of Art.10.

Held

(1) The complaint under Art.6(1) was declared inadmissible (unanimously).


The Court noted from its case law that Art.6 does not apply to a request for revision
of a civil judgment. There was no reason not to apply the same argument to a request
for revision based on a violation of the Convention.
(2) The complaint under Art.10 was declared admissible (unanimously).
The Governments objection that the applicant association had failed to exhaust
its domestic remedies was rejected. The Court joined to the merits of the case the
Governments argument that Art.10 did not apply. There were two ways of viewing the
application: it either concerned a new interference or a problem with the execution of
the earlier judgment under Art.46. If it was the latter, the complaint should be rejected
ratione materiae. The issue raised sufficiently complex and new considerations that it
could not be resolved at the admissibility stage.
(3) There had been a violation of Art.10 (by five votes to two).
The Court recalled that the effect of its finding a violation of the Convention is to
impose a legal obligation on the respondent state to put an end to the breach and to
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make reparation for its consequences in such a way as to restore, as far as possible, the
situation existing before the breach (restitutio in integrum). It is up to the state concerned,
subject to the supervision of the Committee of Ministers, to decide upon the general
and/or, if appropriate, individual measures to be adopted in its domestic legal system
to put an end to the violation found and, as far as possible, redress the effects. Further,
the purpose of awarding monetary compensation under Art. 41 is to provide reparation
solely for damage suffered that cannot otherwise be remedied.
While the Convention does not oblige Member States to put in place a mechanism
for reopening a case after the finding of a violation, the existence of such a procedure
is an important aspect of the execution of the Courts judgments and demonstrates the
commitment of a contracting party to respect the Convention and the jurisprudence that
it generates. However, the existence of such a procedure in domestic law is not enough.
The national jurisdiction concerned (in this case the Federal Court) needed to apply the
Convention and the Courts jurisprudence directly. This was all the more important in
this case, as the Committee of Ministers had concluded its supervision of the execution
of the judgment, simply noting that the applicant had the possibility of seeking a review
of the Federal Courts judgment but without awaiting the result.
The Court noted that in its earlier judgment it had not awarded the applicant
association any compensation. In the absence of a request from the association it had
not even expressed a view as to whether the finding of a breach was sufficient just
satisfaction for the non-pecuniary loss that it had suffered. In the circumstances a review
of the case by the Federal Court applying the principle restitutio in integrum would have
mitigated, in so far as possible, the violation of the Convention found by the Court.
Further, the Court noted that the request for a review had been dealt with very
summarily. Nevertheless, the Federal Courts views on the applicant associations
interest in the broadcast of the commercial, however summary they may be, could give
rise to a fresh interference with its freedom of expression. The application was not
incompatible with the Convention ratione materiae.
As to whether the interference could be justified under Art.10(2), the Court recalled
that in its earlier judgment it had found that there was a basis in Swiss law for the
interference and that it pursued the legitimate aim of protecting the rights of others.
Given its conclusion that the fresh interference resulting from the Federal Courts
decision of April 29, 2002 was not necessary in a democratic society, it was not necessary
for the Court to consider whether these still applied.
On that issue, the Court noted that the Federal Court had refused the applicant
associations request for revision on the ground that the association had not provided a
sufficient explanation of the nature of the amendment of the judgment and the redress
being sought. This approach appeared overly formalistic. Further, in holding that the
applicant association had not sufficiently shown that it had an interest in broadcasting
the commercial in its original form, the Federal Court had substituted its view for that of
the applicant association without explaining how the public debate on battery farming
had changed or become less topical since 1994. The Federal Courts reasons were not
relevant and sufficient to justify the interference the applicants rights under Art. 10.
(4) No award was made under Art.41 (unanimously).
The applicant had not made any claims for compensation under Art.41.
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Cases considered

Ankerl v Switzerland (2001) 32 E.H.R.R. 1


Artico v Italy (1981) 3 E.H.R.R. 1
Assanidze v Georgia (2004) 39 E.H.R.R. 32
Atik v Germany (App. No.67500/01), decision of May 13, 2004
Barber`a, Messegue and Jabardo v Spain (App. Nos 10588/83, 10589/83, 10590/83), judgment
of June 13, 1994
Bianchi v Switzerland (App. No.7548/04), judgment of June 22, 2006
Broniowski v Poland (2005) 40 E.H.R.R. 21
Chammas v Switzerland (App. No.35438/97), decision of May 30, 1997
Delcourt v Belgium (197980) 1 E.H.R.R. 355
Ferrazzini v Italy (2002) 34 E.H.R.R. 45
Fischer v Austria (App. No.27569/02), decision of May 6, 2003
Hertel v Switzerland (App. No.53440/99), decision of January 17, 2002
Huber v Switzerland (App. No.12794/87), decision of July 9, 1988
Ilascu v Moldova and Russia (2005) 40 E.H.R.R. 46
Jamal-Aldin v Switzerland (App. No.19959/92), decision of May 23, 1996
Jersild v Denmark (1995) 19 E.H.R.R. 1
Krcmar v Czech Republic (App. No.69190/01), decision of March 30, 2004
Leterme v France (App. No.36317/97) judgment of April 29, 1998
Lyons v United Kingdom (2003) 37 E.H.R.R. CD183
Marckx v Belgium (197980) 2 E.H.R.R. 330
Mehemi v France (No.2) (2004) 38 E.H.R.R. 16

Ocalan v Turkey (2005) 41 E.H.R.R. 45
Pailot v France (2000) 30 E.H.R.R. 328
Papamichalopoulos v Greece (1996) 21 E.H.R.R. 439
Pelladoah v Netherlands (1995) 19 E.H.R.R. 81
Piersack v Belgium (App. No.8692/79), judgment of October 26, 1984
Pisano v Italy (2002) 34 E.H.R.R. 27
Procaccini v Italy (App. No.65075/01), judgment of March 29, 2006
Rando v Italy (App. No.38498/97), judgment of February 15, 2000
Sablon v Belgium (2003) 37 E.H.R.R. 14
Sadi v France (1994) 17 E.H.R.R. 251
Scozzari and Giunta v Italy (2002) 35 E.H.R.R. 12
Sejdovic v Italy (2006) 42 E.H.R.R. 17
Steel and Morris v United Kingdom (2005) 41 E.H.R.R. 22
Thaler v Austria (App. No.58141/00), decision of September 15, 2003
VgT Verein gegen Tierfabriken v Switzerland (2002) 34 E.H.R.R. 4
Voggenreiter v Germany (App. No.47169/99), November 28, 2002

Commentary

It will be interesting to see whether this case sets a precedent that will be widely built
on in the future. The Courts reasoning is unconvincing and one cannot help wondering
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144 Cases and Comment

whether the judges that formed the majority, including the former President, Judge
Wildhaber, were not keen for the Court to develop enforcement powers itself. There
seems little doubt that enforcement by the Committee of Ministers is often half-hearted,
their failure to investigate whether the Federal Court had agreed to review its ruling in
the light of the Strasbourg courts first judgment being a case in point.
It is interesting to note that Protocol No.14 to the Convention, which is still awaiting
ratification by Russia before it can enter into force, will allow the Committee of Ministers,
if it considers that a state is refusing to abide by a Court judgment, to refer the case
back to the Court so that the Court can examine whether the state has failed to fulfil its
obligations under Art.46. Although it is probable that this procedure will only be invoked
in the most exceptional of cases, it will be an opportunity for the Court to consider
actively questions of non-execution, without having to make the problematical and in
fact not very clear distinction between a new issue and question of enforcement as
in this case.
In her dissenting judgment, in which she was joined by Judge Borrego Borrego,
Judge Jaeger expressed the view that, the Committee of Ministers having discharged its
functions in relation to the original application, the Court was not competent to rule on
the case again.

Education
Religious educationdominance of Sunni Islamrespect for parents religious
convictionsexemption from classesArt.9 and Art.2 of Protocol No.1

Freedom of thought conscience and religion; Islam; Religious education; Right to


education

Hasan and Eylem Zengin v Turkey (Application No.1448/04)


European Court of Human Rights (Former Second Section): Judgment of October 9,
2007.

Facts

The applicant Hasan Zengin lodged the application on behalf of himself and his
daughter Eylem Zengin. At the time she was attending the seventh grade of a state
school.
The applicants were followers of Alevism, a branch of Islam which has deep roots in
Turkish society and history. It represents one of the most widespread faiths in Turkey
after the Hanafite branch of Islam, which is one of four schools of Sunni Islam. Alevism
was influenced by some pre-Islamic beliefs and two great Sufis of the 12th and 14th
centuries. Its religious practices differ from those of the Sunni schools in relation to
prayer, fasting and pilgrimage. According to the applicant, Alevis do not pray five
times a day but express their devotion through religious songs and dances. They do
not attend mosques but meet regularly in cemevi (meeting or worship rooms). They also
reject the Sharia and do not consider the pilgrimage to Mecca as a religious obligation.
As a pupil at a state school, Eylem Zengin was obliged to attend classes in religious
culture and ethics. Mr Zengin submitted requests to the Directorate of National
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Education and the administrative courts for his daughter to be exempted from the
lessons in question. Pointing out that his family were followers of Alevism, he argued
that under international instruments such as the Universal Declaration of Human Rights
parents had the right to choose the type of education their children were to receive.
He further claimed that the course in religious culture and ethics was incompatible
with the principle of secularism and was not neutral, as it was essentially based on the
teaching of Sunni Islam. All his claims were dismissed on the ground that the course
was in accordance with both the Constitution and other Turkish legislation.
Before the European Court of Human Rights the applicants claimed that there had
been a violation of Art.2 of Protocol No.1, the right to education in conformity with
religious convictions, as well as Art.9, the right to freedom of religion. They argued in
particular that the courses syllabus lacked objectivity because no detailed information
about other religions was included and it was taught from a religious perspective which
praised the Sunni interpretation of the Islamic faith and tradition.

Held

(1) There had been a violation of Art.2 of Protocol No.1 (unanimously).


The Court noted that according to the syllabus for religious culture and ethics
classes, the subject aimed to transmit knowledge concerning all the major religions
and was to be taught in compliance with respect for the principles of secularism and
freedom of thought, to foster a culture of peace and a context of tolerance. This in itself
was clearly compatible with Art.2 of Protocol No.1. However, examining the Ministry
of Educations guidelines and school text books on the subject, the Court found that the
syllabus gave greater priority to knowledge of Islam than to that of other religions and
philosophies. In particular, it included study of the prophet Mohamed and the Koran.
Pupils had to learn several suras from the Koran by heart and study, with the support
of illustrations, daily prayers. They also had to sit written tests.
The textbooks did not just give a general overview of religions but provided specific
instruction in the major principles of the Sunni Muslim faith, including its cultural
rites such as the profession of faith, the five daily prayers, Ramadan, pilgrimage and
other aspects. By contrast, pupils at state schools did not receive any teaching on the
confessional or ritual specificities of the Alevi faith until the 9th grade, even though its
followers represented a large proportion of the Turkish population. Teaching at this late
stage was not sufficient to compensate for earlier shortcomings. The religious culture
and ethics lessons in Turkey could not be considered to meet the criteria of objectivity
and pluralism necessary for education in a democratic society and for pupils to develop
a critical mind towards religion.
It was then necessary to examine whether appropriate means existed in the Turkish
educational system to ensure respect for parents convictions. According to Turkish case
law, it was possible for children of Turkish nationality who belong to the Christian or
Jewish religion to be exempted from the lessons provided they affirm their adherence
to those religions. The Government also indicated that exemption could be extended
to other religious or philosophical convictions, without producing specific examples.
The possibility for Christian and Jewish children to withdraw suggested that the lessons
were likely to create conflict between the religious instruction given by the school and
their parents religious or philosophical convictions. The situation was open to criticism:
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146 Cases and Comment

if the course was intended to be about different religious cultures, there was no reason
to make it compulsory for Muslim children alone.
Obliging parents to inform the authorities of their religious or philosophical
convictions was an inappropriate way to ensure respect for freedom of conviction.
In addition, the authorities always had the option of refusing exemption requests, as
they had done for Eylem Zengin. The exemption procedure did not provide sufficient
protection to those parents who could legitimately consider that the subject taught was
likely to raise a conflict of values in their children. This was especially so where no
choice had been envisaged for the children of Muslim parents who had convictions
other than those of Sunni Islam and where the exemption procedure involved the heavy
burden of disclosing their religious or philosophical convictions.
(2) There was no need to examine separately the complaint under Art.9 (unanimously).
(3) The finding of a violation of Art.2 of Protocol No.1 constituted in itself sufficient
just satisfaction.
The applicants made no claim for compensation for pecuniary and non-pecuniary
loss. They were awarded 3,726.80 for their legal costs and expenses.

Cases considered

Angeleni v Sweden (App. No.10491/83), decision of December 3, 1986


Buscarini v San Marino (2000) 30 E.H.R.R. 208
Campbell and Cosans v United Kingdom (1982) 4 E.H.R.R. 293
CJ, JJ and EJ v Poland (App. No.23380/94), decision of January 16, 1996
Folger v Norway (App. No.15472/02), judgment of June 29, 2007
Hasan and Chaush v Bulgaria (2002) 34 E.H.R.R. 55
Kjeldsen, Busk Madsen and Pedersen v Denmark (197980) 1 E.H.R.R. 711
Kose v Turkey (App. No.26625/02), decision of January 24, 2006
Manoussakis v Greece (1997) 23 E.H.R.R. 387
Sahin
v Turkey (2007) 44 E.H.R.R. 5
Serif v Greece (2001) 31 E.H.R.R. 20
Sofianopoulos v Greece (App. Nos 1977/02, 1988/02, 1997/02), decision of December 12,
2002
Valsamis v Greece (1997) 24 E.H.R.R. 294
Zenon Bernard v Luxembourg (App. No.17187/90), decision of September 8, 1993

Commentary

This case follows the recent Grand Chamber judgment in the case of Folger v Norway. In
that case, the Court held by a slim majority of nine votes to eight that there had been a
violation of Art.2 of Protocol No.1 in that Christian religion and philosophy as taught
by Norwegian state schools gave a greater weight to Christianity than other religions,
and the provisions for seeking and being granted exemption subjected parents to a
heavy burden with a risk of undue exposure of their private life.
The present case is very similar, the Court finding that greater priority was given
to the Sunni Islam religion. It also considered that the exemption procedures placed a
heavy burden on parents.
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Before addressing the issue of just satisfaction the Court reproduced the text both of
Art.41 and, unusually, Art.46. This would appear to have the effect of reinforcing the
Courts conclusion that the appropriate form of compensation would be for the Turkish
educational system and domestic legislation to be brought into conformity with the
Convention. The Court evidently wishes to make clear to the Committee of Ministers
that, in exercising their supervisory role, they should ensure that this is done.
According to media reports, the Central Executive Committee of Turkeys ruling
Justice and Development Party (AK Party) has already agreed to introduce significant
changes to the curriculum. In addition, students who do not wish to attend religious
classes will be able to abstain but will instead receive universal religious knowledge
teaching where all religions are covered.
When ratifying Protocol No.1 to the Convention, the UK Government entered a
reservation to Art.2, which reads: . . . the principle affirmed in the second sentence of
Article 2 is accepted by the United Kingdom only so far as it is compatible with the
provision of efficient instruction and training, and the avoidance of unreasonable public
expenditure. This reservation was preserved by the Human Rights Act 1998.

Restraint
Death caused by restraint techniquepositive obligationArt.2

Police powers and duties; Positive obligations; Restraint; Right of access to court;
Right to life

Saoud v France (Application No.9375/02)


European Court of Human Rights (Second Chamber): Judgment of October 9, 2007.

Facts

The applicants were the mother and siblings of Mohamed Saoud, who died on November
20, 1998 aged 26.
Saoud had been assessed as 80 per cent disabled due to his suffering from
schizophrenia. A week before his death he had sought admission to a psychiatric
hospital but due to a lack of space, his admission was deferred to November 23, 1998.
On November 20, 1998, the police were called to the family home because Saoud was
being violent towards his mother and two sisters, who were trapped in the first floor
apartment. He had tied up his sister Siems legs on the balcony of the apartment and
was kicking her repeatedly. Armed with an iron bar and a baseball bat, he attacked the
interior of the property and the balcony.
When the police arrived they were informed by Saouds sister Yasmina of his illness
and of the need to call a doctor. Saoud refused to open the reinforced door to the
apartment but freed Siem over the balcony. He continued to shout at the police and
began attacking Yasmina with the iron bar. The police shot him twice in the abdomen
with rubber bullets, but this weakened him only momentarily. He then attacked a police
officer with the iron bar, injuring the officers hands and fracturing his left wrist. He
hit another officer in the shoulder and threw a third from the balcony, although the
other officers broke his fall. Whilst an officer attempted to restrain him, Saoud drew a
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revolver and shot four times into the floor, perforating the officers shoe, before he was
disarmed.
The injured officers were replaced by others who, being unable to handcuff him to
the rear, handcuffed him to the front and pinned him to the floor face down. One officer
held his wrists, another his ankles and a third pinned down his shoulders with his
extended arms and placed his knee in the small of Saouds back. He was held in this
position for around 30 minutes in total. The ambulance service was called only after he
had been so restrained for 15 minutes.
The fire brigade arrived and administered first aid to the injured officers. They
considered that Saoud remained too agitated for medical treatment and decided to
await the ambulance service to administer a sedative, which they were unable to
do. Moments later, Saoud weakened and died due to what later emerged to be a
cardio-respiratory arrest.
The applicants lodged a complaint for murder of a particularly vulnerable person.
The subsequent police investigation concluded that the force used had been reasonable
in the circumstances. The examining magistrate investigated the applicants complaints
but decided not to pursue any criminal proceedings against the police for voluntary or
involuntary manslaughter for the same reason. The applicants appeals (as civil parties
within the criminal proceedings) also failed.
The applicants complained about the circumstances of the death and matters relating
to the criminal proceedings. They relied on Arts 2, 3 and 6(1).

Held

(1) There had been a violation of the positive obligation to protect Saouds life under
Art.2 (unanimously).
The medical experts had identified the cause of death as asphyxiation due to the
position in which he was held by police. Despite knowing of his medical condition, and
despite his being cuffed hand and foot, the police had not relaxed the position in which
they held Saoud for 35 minutes and no medical examination, however superficial, had
been carried out to establish his state of health during that time. The position used was
well known to risk causing positional or postural asphyxiation and death. The
Court deplored the absence of guidance in France concerning the use of this restraint
technique.
(2) No separate issue arose under Art.3 (unanimously).
(3) There had been a violation of the right of access to a court under Art.6(1) due to the
inability of the lawyer appointed by the legal aid authorities to file written submissions
on the applicants behalf (unanimously).
The applicants complaints under Art.6 were deemed inadmissible save for this
complaint concerning the inability of a lawyer, appointed late by the legal aid
authorities to represent one of the applicants before the Cour de Cassation, to file written
submissions on her behalf. The applicants original requests for funded assistance had
been refused on merits grounds. One of the applicants successfully appealed this refusal
to the Cour de Cassation. However, by the time the lawyer was appointed to represent
the applicant, almost a month had passed since the deadline to file submissions and
none could be filed.
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(4) The applicants were awarded, jointly, 20,000 in respect of non-pecuniary damages
and 5,000 for costs and expenses.

Cases considered

Andronicou and Constantinou v Cyprus (1998) 25 E.H.R.R. 491


Anguelova v Bulgaria (2004) 38 E.H.R.R. 31
Berger v France (App. No.48221/99), judgment of December 3, 2002
Del Sol v France (2002) 35 E.H.R.R. 38
Demir v Turkey (App. No.34491/97), judgment of January 13, 2005
Ergi v Turkey (2001) 32 E.H.R.R. 18
Giummarra and Plouzeau v France (App. No.61166/00), decision of June 12, 2001
Gnahore v France (2000) 34 E.H.R.R. 38
Huohvanainen v Finland (App. No. 57389/00), judgment of March 13, 2007
Isayeva, Yusupova and Bazayeva v Russia (2005) 41 E.H.R.R. 39
McCann v United Kingdom (1996) 21 E.H.R.R. 97
Makaratzis v Greece (2005) 41 E.H.R.R. 49
Osman v United Kingdom (2000) 29 E.H.R.R. 245
Scavuzzo Hager v Switzerland (App. No.41773/98), judgment of February 7, 2006
V v United Kingdom (2000) 30 E.H.R.R. 121
Vernillo v France (1991) 13 E.H.R.R. 880

Commentary

Central to the Courts finding of a violation under Art.2 was the failure of the French
authorities to provide proper regulation as to the use of the restraint technique employed.
Both the Committee for the Prevention of Torture and Amnesty International have
highlighted the risks of asphyxia inherent in the use of such face-down restraint and
the need for the use of such a technique to be tightly circumscribed. The technique has
been banned in some countries, including Belgium and parts of the United States.
In common with Makaratzis v Greece this judgment reflects the need for an operation
of this nature to be regulated and organised in such a way as to minimise to the
greatest extent possible any risk to life. In light of the findings of the Independent Police
Complaints Commission, it will be interesting to see whether the operation which
resulted in the death of Jean Charles de Menezes met this standard.
The finding of a violation of Art.6 may be linked to the system of legal aid in France.
The applicants initial application to the legal aid authorities was refused but that
decision was overturned by the Cour de Cassation itselfa decision that implicitly
acknowledged the merit of the applicants case, but came too late for the representative
to lodge submissions.

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150 Cases and Comment

Defamation
Novel drawing on real eventsdefamationcriminal conviction for defamationfreedom of
the pressArts 6 and 10

Defamation; Freedom of expression; Publishers; Right of appeal in criminal matters;


Right to fair trial

Lindon, Otchakovsky-Laurens and July v France (Application Nos. 21279/02 and


36448/02)

European Court of Human Rights (Grand Chamber): Judgment of October 22, 2007.

Facts

In 1998 Mr Lindon published a novel called Le Proc`es de Jean-Marie le Pen which


concerned the murder of a young man of North African descent by a Front National
militant. It explored the responsibility of Mr Le Pen, as the outspoken leader of Front
National, for the murder. Mr Otchakovsky-Laurens was the chairman of the board of
directors of the publishing company that published the novel. The novel was fictional,
but drew on real facts. Mr Le Pen brought proceedings against Mr Lindon and Mr
Otchakovsky-Laurens for the offence of public defamation of a private individual under
the Freedom of the Press Act 1881. The Paris Criminal Court convicted Mr Otchakovsky-
Laurens of defamation and Mr Lindon of complicity in that offence. They were each
fined the equivalent of 2,286.74 and ordered to pay, jointly, 3,811.23 in damages both
to Mr Le Pen and the Front National. The Court found four passages in particular to be
defamatory: (1) that Mr Le Pen led a gang of killers and that people would have
voted for Al Capone too; (2) that the Front National used violence against anyone who
left the party; (3) that behind each of Mr Le Pens assertions loomed the spectre of the
worst abominations of the history of mankind, and (4) that he was a vampire who
thrived on the bitterness of his electorate, but sometimes also on their blood, like the
blood of his enemies and that he was a liar who used defamation against his opponents
to deflect accusations away from himself.
In November 1999 the newspaper Liberation published a petition signed by 97 writers
protesting against the conviction, and reproduced verbatim the passages found to
be defamatory. Mr July, publication director of Liberation, was also found guilty of
defamation. He was sentenced to pay a fine equivalent to 2,286.74 and 3,811.23 in
damages.
The Paris Court of Appeal upheld the convictions of Mr Lindon and Mr Otchakovsky-
Laurens in relation to three of the four impugned passages (finding the second passage
not defamatory), and upheld the conviction of Mr July. Appeals to the Cour de Cassation
on points of law were dismissed. The applicants applied to the Court arguing that their
criminal convictions were in breach of Art.10. Mr July also alleged a breach of Art.6(1),
arguing that his case was not heard by an independent court, because two of the judges
had decided the original case. The Chamber to which the case was assigned relinquished
jurisdiction in favour of the Grand Chamber.
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Held

(1) There was no breach of Art.10 (by 13 votes to 4).


The conviction was prescribed by law and pursued a legitimate aim prescribed by
Art.10(2), the protection of the reputation or rights of others. The issue was whether
it was necessary in a democratic society.
In relation to Mr Lindon and Mr Otchakovsky-Laurens, the Court noted that the
work was a novel, contributing to the exchange of ideas and information, and therefore
protected by Art.10. It was also likely to have a narrower readership than the mass
media, and hence the potential damage to the rights and reputation of Mr Le Pen and
his party was likely to have been limited. Nevertheless, it appeared that the conviction
was not based on the arguments in the novel but on the specific content of only three
particular passages regarded as damaging to the honour or reputation of Mr Le Pen
and his party. The Court of Appeals approach was to try and determine the authors
opinions from remarks of characters, and, if they were defamatory, to judge by how
much the author had distanced himself from those remarks. This was consistent with
Art.10. Further, the domestic courts finding that the work impugned the honour and
reputation of Mr Le Pen could not be criticised due to the virulence of language used
in the relevant passages and the specific naming of Mr Le Pen and his party. Lastly,
the attempt to ascertain the authors thoughts was for his own benefit, and actually
led to one of the four passages referred to the Court of Appeal being held not to be
defamatory.
The Court of Appeal had noted that the work could not be treated as if it were purely
factual, but that since the novel juxtaposed fact and fiction, it was relevant to consider the
factual investigation undertaken by the applicants before publishing the novel. It had
also noted that there was no evidence of a basic verification of the reality supposed to
be evoked by the words of the novel. This approach was consistent with the Convention.
Under Convention case law facts asserted must be proved. Value judgments need not,
but must have a sufficient factual basis. There was no specific evidence in this case to
show that the defamatory remarks rested on a basic verification. Indeed, the domestic
court had taken a measured approach, requiring only a basic verification of the
defamatory passages, not a full justification.
The Court of Appeals finding that the language was not dispassionate also accorded
with the Convention. A degree of provocation or exaggeration is acceptable and Mr
Le Pens extreme views expose him to harsher criticism, but the novel went too far. A
minimum degree of moderation is required even in forceful political debates, and the
novel contained remarks intended to stigmatise and stir up violence and hatred.
As a consequence there were relevant and sufficient reasons for the convictions
and the imposition of a fine. Given the margin of appreciation, a criminal offence of
defamation was not per se disproportionate, and the fines imposed in this case were
moderate. The domestic court was entitled to find that the interference with freedom of
expression was necessary in a democratic society within the meaning of Art.10.
In relation to Mr July, the Court noted that, as freedom of the press was at issue,
a particularly high level of protection under Art.10 applied. It observed that the
conviction was not for reporting on the first conviction or expressing a view about the
first conviction, or for failing to distance the newspaper from the defamatory remarks,
but for reproducing the defamatory passages with approval. The publication of the
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152 Cases and Comment

passages in a national daily newspaper with a large circulation had a large potential
impact, and it was not necessary to reproduce the passages in order to report on the
conviction. The media have duties and obligations even when reporting on matters
of general public interest, and special reasons are needed before they can be released
from the duty to verify statements. Having regard again to the moderate nature of the
fines imposed and the damages awarded, as well as the content of the writings and the
potential impact of publishing them in the mass media, the interference with freedom
of expression was proportionate.
(2) There was no breach of Art.6 in Mr Julys case (unanimously).
There was no evidence that the judges in his case felt personally targeted by the alleged
defiance shown to their first judgment by Liberation. Mr July had not been convicted
because he had criticised the judges in question but because he had disseminated,
without a proper preliminary investigation, a text containing particularly serious
allegations and offensive remarks.
There was no objectively justifiable basis for a fear that the tribunal lacked impartiality.
Even though two of the judges had determined the first case, the cases were separate,
even though connected. In particular, the issues and defendants were different. The fact
that reference was made to the first judgment did not show a lack of impartiality. The
first judgment was binding and needed consideration. It also would have been binding
on any court, however composed. The situation was not akin to one where judges
were called upon to consider whether they themselves had erred in law in an earlier
judgment. Consequently any doubts about the impartiality of the Court of Appeal when
it ruled in the second case were not objectively justified.

Cases considered

Abeberry v France (App. No. 58729/00), decision of September 21, 2004


Alnak v Turkey (App. No. 40287/98), judgment of March 29, 2005
Bladet Troms A/S and Pal Stensaas v Norway (2000) 29 E.H.R.R. 125
Brasilier v France (App. No. 71343/01), judgment of April 11, 2006
Cantoni v France (App. No. 17862/91), judgment of November 15, 1996
Chauvy v France (2005) 41 E.H.R.R. 29
Craxi v Italy (No.3) (App. No. 63226/00), decision of June 14, 2001
Cumpana and Mazare v Romania (2005) 41 E.H.R.R. 14
Dabrowski v Poland (App. No. 18235/02), judgment of December 19, 2006
Dagtekin v Turkey (App. No.36215/97), judgment of January 13, 2005
De Haes and Gijsels v Belgium (1998) 25 E.H.R.R. 1
Feldek v Slovakia (App. No. 29032/95), judgment of July 12, 2001
Gautrin v France, (1999) 28 E.H.R.R. 196
Handyside v United Kingdom (1979) 1 E.H.R.R. 737
Hertel v Switzerland (1999) 28 E.H.R.R. 534
Jersild v Denmark (1995) 19 E.H.R.R. 1
Karatas v Turkey (App. No. 23168/94), judgment of July 8, 1999
Karman v Russia App. No. 29372/02), judgment of December 14, 2006
Klein v Slovakia (App. No. 72208/01), judgment of October 31, 2006
Ku
cuk
v Turkey (App. No. 28493/95) , judgment of December 5, 2002
Kyprianou v Cyprus (2007) 44 E.H.R.R. 27
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Lingens v Austria (1986) 8 E.H.R.R. 407


Lopes Gomes da Silva v Portugal (2002) 34 E.H.R.R. 56
Mam`ere v France (App. No.12697/03), judgment of November 7, 2006
Muller
v Switzerland (1991) 13 E.H.R.R. 212
Oberschlick v Austria (No.2) (1998) 25 E.H.R.R. 357
ur
Ozg Gundem
v Turkey (2001) 31 E.H.R.R. 49
Padovani v Italy (App. No. 13396/87), judgment of February 26, 1993
Pedersen and Baadsgaard v Denmark (2006) 42 E.H.R.R. 24
Radio France v France (2005) 40 E.H.R.R. 29
San Leonard Band Club v Malta (2006) 42 E.H.R.R. 23
Steel and Morris v United Kingdom (2005) 41 E.H.R.R. 22
Surek
v Turkey (No.1) (App. No. 26682/95), judgment of July 8, 1999
Thoma v Luxembourg (2003) 36 E.H.R.R. 21
Thomann v Switzerland (1997) 24 E.H.R.R. 553
Vereinigung Bildender Kunstler
v Austria (App. No. 68354/01), judgment of January 25,
2007
Vides Aizsardzbas Klubs v Latvia (App. No. 57829/00), judgment of May 27, 2004
White v Sweden (2008) 46 E.H.R.R. 3
Wirtschafts-Trend Zeitschriften-Verlags GmbH v Austria (App. No. 58547/00) judgment of
October 27, 2005

Commentary

The strong nature of the impugned language, and the relatively small level of the
fines imposed, were significant in this case. The decision highlights that where political
expression amounts to stigmatisation and stirs up violence and hatred, it may be
permissible to limit it. This suggests that controversial offences in the United Kingdom
comprising incitement to hatred on protected grounds (race, religion and, prospectively,
sexuality) may continue to be justifiable under the Convention. A concurring judgment
was given by Judge Loucaides.
The Courts decision was not, however, unanimous on Art.10. Judges Rozakis, Bratza,

Tulkens and Sikuta gave a dissenting judgment. They emphasised, inter alia, the
importance of artistic work and that it should not be treated the same as other forms
of expression such as advertising. They concluded that it was simply excessive to say
that the novel constituted an appeal to violence or hatred. They took issue with the
majoritys approach, which was in effect to review and approve the approach of the
Paris Court of Appeal, rather than to form its own judgment on the balance to be
struck between freedom of expression and the protection of reputation. The minority
also questioned whether criminal sanctions for defamation are appropriate in the 21st
century. They concluded that the sentence handed down was more than symbolic, and
that the majority had not reviewed its proportionality.
The core of this case is therefore not merely the scope of freedom of expression per se,
but rather the intensity of review properly to be applied to national sanctions limiting
political expression.

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154 Cases and Comment

Torture
Ill-treatment in detentionstate pressureArts 3 and 34

Individual applications; Inhuman or degrading treatment or punishment;


Intimidation; Police detention; Torture

Colibaba v Moldova (Application No.29089/06)


European Court of Human Rights (Fourth Section): Judgment of October 23, 2007.

Facts

On April 21, 2006 the applicant was arrested for assaulting a police officer and detained.
He alleged he was tortured by three police officers in order to extract a confession. He
alleged that his hands and feet were tied together behind his back and a metal bar from
a coat hanger was passed under his arms. The metal bar was placed on two chairs and
his body was suspended for more than 40 minutes. While suspended, his head was
covered with a coat and he was beaten with a chair on the back of his head. After being
taken back to his cell, the applicant unsuccessfully attempted suicide. The Government
contested the allegations of ill-treatment.
On April 27, 2007 the applicant was allowed to have contact with his lawyer in the
presence of a police officer and complained that he had been tortured. He alleged he
was tortured again in retaliation for complaining to his lawyer. On April 28 his lawyer
lodged a complaint with the prosecutors office.
On April 29 the applicant was taken by the police officers who had allegedly ill-treated
him for a medical check up in their presence. The medical report concluded that, besides
the injury caused by his attempted suicide, the applicant did not have any other signs of
violence on his body. One of the police officers was removed from the applicants case
on account of the complaints, to ensure the objectivity of the complaint investigation.
The lawyers request for the applicant to undergo further, independent medical
examinations was refused. Following complaints by the applicants lawyer, Amnesty
International organised action in support of the applicant. The Moldovan authorities
received 27 letters and the case was widely reported in the media.
On May 16 the applicant was released from detention and sought medical assistance
from a non-governmental organisation. He was found to be suffering from cranial
trauma, post-traumatic otitis, mixed deafness, auditory sensitivity, concussion with
permanent vegetative disorder and intracranial hypertension.
On May 24 the applicants torture complaint was dismissed by the prosecutors
office on the grounds that the police had denied the allegations, the medical report of
April 29 showed no sign of injury, and no coat hanger had been found at the scene.
The prosecutor also considered the suicide attempt had been simulated so as to avoid
criminal responsibility. The applicant appealed to the District Court who dismissed the
appeal as unfounded without giving an assessment of any of the applicants evidence.
The medical report from the non-governmental organisation became available on
July 5, but the prosecutors office decided there were no grounds for reopening the
investigation.
In the meantime on June 22 the applicant lodged this complaint with the European
Court alleging a violation of Art.3.
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Cases and Comment 155

On June 26 the Prosecutor General wrote a letter to the Moldovan Bar Association,
stating that Moldovan lawyers had been involving international human rights
organisations to serve their personal interests and avoid criminal responsibility of
their clients. The letter contained two examples, including the case of the applicant,
naming him and his lawyer. The Prosecutor General stated that he had examined
the complaints of torture thoroughly and accused the applicants lawyer of being
irresponsible, knowing no acts of torture had been committed and presenting facts
erroneously to win the case. The lawyers were threatened with a criminal investigation
of their practices. The Moldovan Bar Association issued a statement in which it
characterised the Prosecutors Generals letter as an attempt to intimidate lawyers.
The applicant complained to the European Court relying on Arts 3, 13 and 34.

Held

(1) The applicants complaint under Art.3 that he had not been provided with food and
water in detention was deemed inadmissible (unanimously).
The applicant had adduced no evidence in support of this complaint and accordingly
the complaint was deemed manifestly ill-founded.
(2) There had been a violation of Art.3 due to the applicants ill-treatment while in
detention (unanimously).
Injuries sustained while in detention or otherwise under the control of the police will
give rise to a strong presumption that the person was subjected to ill-treatment and
the burden of proof rests on the authorities to provide a satisfactory and convincing
explanation. The Governments assertion that the applicant could have been injured
after his release, between May 16 and May 18, appeared implausible.
The Court also noted the applicants complaint of retaliatory torture and the removal
of a police officer from the applicants case. The Court found it difficult to give weight
to the first medical report, conducted in the presence and under the supervision of the
police officers who had allegedly tortured him. The Court concluded that the applicants
cranial trauma was caused during his detention and the Government had not satisfied
the burden on it to persuade the Court that the injuries were caused by anything other
than ill-treatment in police custody.
(3) There had been a violation of the investigative aspect of Art.3 (unanimously).
The Court noted serious shortcomings in the investigation into the applicants
assertions of ill-treatment while in custody. The applicants request to the prosecutors
office for an independent medical examination was rejected without any plausible
reasons being given. His appeal had been refused without any reasons being given and
the court manifested no interest in seeing the independent medical report. The Court
considered the domestic authorities had not made a serious attempt to investigate the
applicants complaints of ill-treatment.
(4) It was not necessary to examine separately the complaint under Art.13.
(5) The respondent state had failed to comply with its obligations under Art.34 ECHR.
The Court reiterated the importance of the effective operation of the system of
individual petition without applicants being subject to any form of pressure from the
authorities to withdraw or modify their complaints. Pressure includes not only direct
coercion and flagrant acts of intimidation, but also improper indirect acts or contacts
designed to dissuade or discourage applicants from pursuing a Convention remedy.
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
156 Cases and Comment

The language employed by the Prosecutor General, expressly naming the applicants
lawyer in the context of the case, and the warning that a criminal investigation
would be initiated as a result of the lawyers allegedly improper complaint to
international organisations could easily be construed as amounting to pressure on
the applicants lawyer. This perception was shared by the Moldovan lawyers and
Amnesty International.
Although it was unclear whether the Prosecutor General knew about the application
to the Court when he wrote his letter, in any event the wording of the letter could
have had a chilling effect on the applicants lawyers intention to bring or pursue the
application before the Court.
(6) The applicant was awarded 14,000 in respect of non-pecuniary damage and
2,500 in respect of costs and expenses.

Cases considered

Akdivar v Turkey (1997) 23 E.H.R.R. 143


Aksoy v Turkey (1997) 23 E.H.R.R. 553
Assenov v Bulgaria (1997) 28 E.H.R.R. 652
Bati v Turkey (2004) 42 E.H.R.R. 37
Bursuc v Romania (App. No.42066/98), judgment of October 12, 2004
Gul
v Turkey (2002) 34 E.H.R.R. 28
Ireland v United Kingdom (1980) 2 E.H.R.R. 25
Kurt v Turkey (1999) 27 E.H.R.R. 373
Labita v Italy (App No.26772/95), judgment of April 6, 2000
Salman v Turkey (2002) 34 E.H.R.R. 17
Selmouni v France (1999) 29 E.H.R.R. 403
Tanrikulu v Turkey (2000) 30 E.H.R.R. 950

Commentary

When injuries are sustained in custody, it is well-established that, once the complainant
raises a credible assertion of ill-treatment, the evidential burden to provide a satisfactory
explanation lies on the state. In Sheppard v Home Office [2002] EWCA Civ 1921, the
appellant sought to argue that the European jurisprudence went further, so that in
these cases it is actually for the defendant to disprove his responsibility; that is to say,
that the burden of proof rests on the defendant to show that he has not committed
the tort alleged. The Court of Appeal disavowed any reversal of the burden of proof,
but confirmed there will be a powerful evidential burden resting upon the authorities
to demonstrate that responsibility for the injury or death does not lie at their door. A
state defendant in such a case will virtually inevitably be required to put forward a
substantial positive case on the facts if he is to avoid the conclusion that the claimants
case is proved.
The Strasbourg Court was critical of the Prosecutor Generals intimidating letter to
Moldovan lawyers, which named the applicants lawyer, and his censure of complaints
to international organisations specialising in the protecting of human rights. The
letter stated:
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Cases and Comment 157

Lately, the Prosecutor Generals Office has been confronted with the phenomenon
whereby some Moldovan lawyers involve international organisations specialising
in the protection of human rights in the examination by the national authorities of
criminal cases. These organisations are used as an instrument for serving personal
interests and for avoiding the criminal responsibility of suspected persons . . . After
having examined sufficiently thoroughly the complaints alleging torture and abuse
on the part of the police . . . the Prosecutors Office dismissed the complaints on
the ground of lack of proof . . . in such circumstances the irresponsible attitude and
behaviour of the lawyers A.U. and R. Zadoinov give rise to concern. They knew
that no acts of torture had been committed . . . they complained to international
organisations . . . They presented the facts erroneously in order to win their cases . . .
Such practices by lawyers will be investigated by the Prosecutor Generals Office
in order to determine whether they have committed the offence.

It is interesting that although the letter made no mention of any application to the
European Court, the Court considered that the letter would in any event have a chilling
effect on the applicants lawyers intention to pursue an application before the Court in
contravention of Art.34.
Surveillance
Recording private telephone conversationspolice involvementArt.8

Criminal evidence; Perjury; Right to respect for private and family life; Telephone
tapping

Van Vondel v Netherlands (Application No.38258/03)


European Court of Human Rights (Third Section): Judgment of October 25, 2007.

Facts

The applicant worked as a police officer for the Kennemerland Regional Criminal
Intelligence Service (Regionale Criminele Inlichtingendienst; RCID) in the Netherlands
between January 1989 and August 1994. In December 1994, following the disbandment
of another criminal investigation team on account of its use of controversial investigation
methods, a parliamentary commission of inquiry on criminal investigation methods
(parlementaire enquetecommissie opsporingsmethoden; PEC) was initiated. Separately, in
April 1995 a special team of the National Police Internal Investigation Department
(NPIID) launched a fact-finding inquiry into the Kennemerland RCIDs operations
between 1990 and 1995.
After the applicant had twice given evidence before the PEC, the chief public
prosecutor of the Hague was sent a formal record of perjury concerning various parts of
the applicants evidence, in particular those parts concerning the question of payments
to Mr R, one of the applicants informers. The applicant stood trial before the Regional
Court of the Hague on charges of perjury before the PEC and of having sought to
intimidate Mr R when the applicant knew or had serious reason to assume that a
statement from Mr R would be sought in the context of the PEC inquiry. Recordings of
telephone conversations between the applicant and Mr R were used in evidence. The
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158 Cases and Comment

applicant was convicted on April 8, 1998, following which he appealed to the Court of
Appeal of the Hague.
The Court of Appeal rejected the applicants argument that the evidence used against
him was obtained unlawfully. The Court of Appeal disagreed with the applicants
contention that the recording by Mr R of his telephone conversations with the applicant
with technical equipment made available by the NPIID had infringed his right to privacy
under Art.8. It was held that, as the conversations were of an exclusively professional
nature and content, the applicants private life was not in issue. It further held that
Mr Rs recourse to recording equipment had mainly been prompted by Mr Rs need
to substantiate his account in order to be believed by the NPIID. The Court noted that
Mr R had been entirely free to decide whether to activate the recording equipment
and whether to make the recordings available to the NPIID. The Court only accepted
interference with Art.8 by the NPIID in respect of the one recorded conversation for
which Mr R had received explicit instructions from the NPIID, and only to the extent
that that conversation related to matters falling within the applicants sphere of privacy.
However, that particular conversation was not used in evidence. The Court also held
that its findings were not altered by the fact that the NPIID had an interest in recording
the conversations for the purposes of verifying information relevant to its fact-finding
inquiry.
The applicants appeal to the Supreme Court was rejected on July 8, 2003 and the
applicant then complained to the European Court of Human Rights of a violation of his
right to privacy under Art.8.

Held

(1) The application was not manifestly ill-founded and was thus admissible
(unanimously).
(2) There had been a violation of Art.8 (unanimously).
The Court reiterated that the term private life should not be interpreted restrictively.
In particular, respect for private life comprises the right to establish and develop
relationships with other people and there is no reason to justify excluding activities of a
professional or business nature from the notion of private life. The Court described a
zone of interaction of a person with others, even in a public context, which may fall
within the scope of private life.
The Court noted that the recording of private telephone conversations by one of the
participants of the conversation and the private use of such recordings does not per
se violate Art.8 if done with private means, but that this is to be distinguished from
the covert monitoring and recording of communications by a private person in the
context of and for the benefit of an official inquiry with the connivance and technical
assistance of public investigation authorities. The Court observed that although the
recordings of the applicants conversations were made by Mr R on a voluntary basis and
for his own purposes, the equipment was provided by the authorities, who on at least
one occasion gave him specific instructions as to what information should be obtained
from the applicant. In these circumstances, the Court considered that the authorities
made a crucial contribution to executing the scheme and it was not persuaded that
it was ultimately Mr R who was in control of events. The Court concluded that to hold
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Cases and Comment 159

otherwise would be tantamount to allowing investigating authorities to evade their


responsibilities under the Convention by the use of private agents.
The Court held that the interference with the applicants rights under Art.8 was not in
accordance with law, noting that the Government had not presented any arguments
that the interference at issue was based on and in compliance with any statutory or
other legal rule. The Court further noted that, as the investigation in the context of
which the interference occurred was a fact-finding inquiry, the NPIID was not allowed
to have recourse to any investigative powers such as, for instance, the covert recording
of telephone conversations. Although the Court acknowledged the difficulties of an
individual such as Mr R who feared to be disbelieved by investigation authorities and
that such a person may need technical assistance from these authorities to substantiate
his account, it could not accept that the provision of that kind of assistance by the
authorities was not governed by rules aimed at providing legal guarantees against
arbitrary acts. The Court therefore concluded that the applicant was deprived of the
minimum degree of protection to which he was entitled under the rule of law in a
democratic society.
(3) There was no call to award the applicant any sum for just satisfaction
(unanimously).
As the applicant had not submitted any claim for just satisfaction, the Court held that
it was unnecessary to make such an award.

Cases considered

Aalmoes v Netherlands (App. No.16269/02), judgment of November 25, 2004


A v France (1994) 17 E.H.R.R. 462
Halford v United Kingdom (1997) 24 E.H.R.R. 523
Heglas v Czech Republic (App. No.5935/02), judgment of March 1, 2007
MM v Netherlands (2004) 39 E.H.R.R. 19
Narinen v Finland (App. No.45027/98), judgment of June 1, 2004
Niemietz v Germany (1993) 16 E.H.R.R. 97
PG and JH v United Kingdom (App. No.44787/98), judgment of September 25, 2001

Commentary

The facts of this case are relatively complex, but the claimants Art.6 argument had
been found to be inadmissible (see partial decision on admissibility dated March 23,
2006), meaning that the remaining legal point in issue was a straightforward one:
what level of involvement by a public authority in a violation of Art.8 will trigger the
states responsibility under the Convention? In deciding that the Netherlands police
were responsible for the Art.8 breach because they supplied Mr R with the recording
equipment and gave him instructions as to what evidence to obtain, the Court followed
a clear line of authority from A v France and, more recently, MM v Netherlandsdespite
the Netherlands Governments concerns that such an approach would render the
authorities unnecessarily cautious in lending assistance to members of the public.
Only Judge Myjer suggested any concern from the Court at this line of authority.
In his separate concurring opinion he attempted to justify why he had, prior to his
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
160 Cases and Comment

appointment, been extremely critical of the MM v Netherlands judgment. In doing so he


makes an unconvincing distinction between a private individual awaiting and recording
incoming calls (no interference with Art.8) and the deliberate making and recording of
calls for the purposes of obtaining evidence (interference with Art.8).
The consistent approach of the Court (Judge Myjer apart) has direct relevance for
the interpretation of the Human Rights Act (HRA) in the United Kingdom. Since the
HRA seeks to give individuals remedies in domestic courts for Convention breaches
where previously they were required to apply to Strasbourg (bringing rights home),
the way in which the European Court interprets public authority for the purpose
of the Convention will affect the way in which domestic courts interpret public
authority under the HRA. Thus it appears that the responsibility of UK law enforcement
agencies under the HRA will be engaged when they provide surveillance equipment
to private individuals, to the extent that they make a crucial contribution to executing
the scheme. Thus authorisation would need to be sought under the Regulation of
Investigatory Powers Act 2000 (see the Court of Appeal case of R. v Hardy [2002] EWCA
Crim 3012; [2003] 1 Cr. App. R. 30 which confirmed that the recording of telephone
conversations by an undercover officer party to them did not amount to interception
under the Regulation of Investigatory Powers Act, but was lawful and Art.8 compliant
if authorised as either directed surveillance or the conduct and use of covert human
intelligence).
Logically, it appears that the approach taken in A v France and MM v Netherlands
could extend beyond surveillance alone and enter other areas of delegated law
enforcement. For example, public authority liability could arguably arise where the
police set up, finance and provide equipment to support private schemes designed to
prevent unruly customers from entering retail establishments. However, the seemingly
general reluctance of domestic courts to extend the meaning of public authority under
the HRA may prevent the principle in this case reaching beyond its particular factual
context.

[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008


Book Review
The Human Rights Field Operation: Law, Theory and Practice (Michael OFlaherty,
ed.), (Ashgate, 2007), 467 pages, ISBN 978 0 7546 4937 3, 25 (paperback).
Many readers whose human rights-related work consists of domestic legal practice or
campaigning would have difficulty in defining the human rights field operation. This
valuable volume of essays, which focuses on the operations of the United Nations (UN),
makes it clear that such field operations are less well understood than they could be,
not only because of patchy public communication, but more fundamentally because of
a lack of practical, institutional, and theoretical coherence. The volumes stated aim is to
address this lack of coherence by making a preliminary contribution to the articulation
of an underlying doctrine (p.18). To this end the editora member of the UN Human
Rights Committee, who has led UN human rights operations in Bosnia and Sierra
Leonehas assembled an impressive range of contributors, from academics to those
involved in the organisation of field operations in various challenging locations.
As the editors introductory essay makes clear, the promotion and protection of
human rights in areas where those rights are under challenge has often come a poor
second to the UNs immediate military or political objectives. Indeed, the first official
UN deployments of specific human rights field teams in the early 1990s, in locations such
as El Salvador, Cambodia, Haiti and Guatemala, took place under the auspices of the
New York-based Security Council or General Assembly, rather than the Geneva-based
Centre for Human Rights (now the Office of the High Commissioner for Human Rights,
or OHCHR). Unlike the field teams deployed by the Security Council, the Centres first
few field operationsin Cambodia in 1993, Rwanda in 1994, and Burundi in 1995had
to be funded by voluntary contributions, rather than from the official UN budget.
The ad hoc nature of these missions, and the lack of institutional capacity to develop
and support them, led to a desire by the OHCHR to insert human rights components
in New York-led missions rather than itself mounting entire operations (p.5). This
mainstreaming of human rights within UN operations in conflict areas became the
prevailing norm around the turn of the century: it went so far that the UN integrated
mission in Afghanistan, set up in 2002, in fact contained no dedicated human rights
monitoring unit. It became clear that, while in an ideal world human rights protection
would be an integral part of all programmes, removing specific human rights units from
such missions created the risk that, under the guise of mainstreaming, human rights
would in fact be subordinated to military and political objectives.
In an important development in 2005, the new High Commissioner for Human Rights,
Louise Arbour, published a plan of action, stating that her office would become more
present on the ground in a sustained manner, and that her preference was for stand-
alone UN human rights offices. The publication of this volume is therefore timely. It
raises fundamental questions which this new wave of specialised field operations will
have to address, many of which have received insufficient or inconsistent attention in
the past. In respect of the important monitoring function, for example, the editor asks:

How should the monitoring be undertakenshould it seek to establish personal


responsibility for actions and collect court-ready evidence or instead simply map
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
162 Book Review

out patterns of human rights abuse? When is it appropriate to monitor individual


casesare these cases the actual object of the monitoring exercise or are they
instead intended to serve as illustrations of broader phenomenaor is this even a
valid distinction? (p.11)

The essays in the volume are premised on the basis that, while questions like these do
not admit of easy answers, there is a pressing need for them to be clearly identified.
The books main achievements are to ask the questions, and then to contribute to the
beginnings of a framework within which the questions could be answered.
One of the most original chapters is that by George Ulrich, who explores the ethical
code which should govern those carrying out operations on the ground. He emphasises
that the legally-based human rights standards being applied in such operations do
not in themselves offer an ethical code to guide the daily interactions of field officers.
His essay highlights how institutional values have been to the forecompliance
with organisational aims; projecting an image of professionalism on behalf of the
organisationrather than values guiding the actual interactions between field officers
and those whose rights they are there to protect. All too often, he argues, such matters
are not considered at the institutional level, and too much is left to the individual
conscience of field officers. Ulrichs emphasis on the need for a spirit of humility on
the part of those whose professional role brings them into ethically charged contact with
highly vulnerable people has resonance for human rights lawyers in domestic legal
systems, as does his warning that this spirit of humility stands in danger of eroding in
situations where optimism about effecting positive change gives way to sentiments of
disillusionment and cynicism (p.81).
The primary readership for the book will be those involved in planning, researching
or carrying out human rights field operations, but the book will also have much of
interest to others with an interest in human rights. After a series of chapters on the
legal and ethical bases for field operations, and the relationship of such operations
with peacekeeping, security, transitional justice and humanitarian relief, and with non-
governmental organisations such as the Red Cross and Peace Brigades International,
the book concludes with a fascinating series of case studies. Accounts of human rights
field operations in East Timor, Sierra Leone, Angola, Bosnia and Herzegovina, and
Guatemala, explore the huge practical challenges involved in the responsible promotion
and protection of human rights in these difficult circumstances. These chapters make
sobering reading for those whose human rights work takes place in more comfortable
surroundings.

Alison Macdonald
Matrix Chambers

[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008


Index
Acquittals effect on administrative decisions,
criminal proceedings 138140
effect on administrative decisions,
138140 De minimis
Administrative law European Court of Human Rights
criminal proceedings admissibility criteria, 80105
effect of acquittals, 138140 Defamation
Admissibility criteria right of appeal in criminal matters
European Court of Human Rights freedom of expression, 150153
de minimis, 80105 Disclosure
Adverse possession European Court of Human Rights
control of use of property right to respect for private and family life,
peaceful enjoyment of possessions, 4479
132135 Discrimination
Advertisements equality
animal welfare constitutional rights, 2043
freedom of expression, 140144
Animal welfare Enforcement
advertisements advertisements
freedom of expression, 140144 freedom of expression, 140144
Appointments equality
European Court of Human Rights constitutional rights, 2043
measures to deal with rising caseload, Equal treatment
111 discrimination
Autonomy constitutional rights, 2043
European Court of Human Rights Equality
right to respect for private and family life, discrimination
4479 constitutional rights, 2043
European Court of Human Rights
Bill of Rights de minimis
equality admissibility criteria, 80105
constitutional rights, 2043 public opinion
Broadcasts measures to deal with rising caseload,
advertisements 111
freedom of expression, 140144 right to respect for private and family life
jurisprudence of court, 4479
Contributions
social security Forced labour
prostitution, 135137 prostitution
Control of use of property social security contributions, 135137
adverse possession Freedom of expression
peaceful enjoyment of possessions, advertisements
132135 animal welfare, 140144
Control orders defamation
terrorism right of appeal in criminal matters,
right to liberty and security, 120131 150153
Criminal evidence right to fair and public hearing
telephone tapping acquittal in criminal proceedings,
right to respect for private and family life, 138140
157160 Freedom of thought conscience and religion
Criminal proceedings religious education
acquittals exemption from classes, 144147
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Index

Identity right to respect for private and family life,


European Court of Human Rights 157160
right to respect for private and family life, Police detention
4479 inhuman or degrading treatment or
Individual applications punishment
inhuman or degrading treatment or torture and intimidation, 154157
punishment Police powers and duties
police detention, 154157 right to life
Information death caused by restraint technique,
European Court of Human Rights 147149
right to respect for private and family life, Positive obligations
4479 right to life
Inhuman or degrading treatment or death caused by restraint technique,
punishment 147149
police detention Presumption of innocence
torture and intimidation, 154157 right to fair and public hearing
acquittal in criminal proceedings, 138140
prostitution
Proportionality
social security contributions, 135137
equality
International criminal law
constitutional rights, 2043
trafficking in human beings
Prostitution
protection of victims, 106119 social security
Intimidation contributions, 135137
inhuman or degrading treatment or Public opinion
punishment European Court of Human Rights
police detention, 154157 measures to deal with rising caseload,
Islam 111
religious education Publishers
exemption from classes, 144147 defamation
freedom of expression, 150153
Justiciability
equality Registered land
constitutional rights, 2043 control of use of property
peaceful enjoyment of possessions,
Legal maxims 132135
de minimis Religious education
ECHR admissibility criteria, 80105 freedom of thought conscience and religion
Legislation exemption from classes, 144147
equality Restraint
constitutional rights, 2043 right to life
police powers and duties, 147149
Right of access to court
Member States
police powers and duties
European Court of Human Rights
death caused by restraint technique,
measures to deal with rising caseload,
147149
111 Right of appeal in criminal matters
defamation
Observations freedom of expression, 150153
advertisements Right to education
freedom of expression, 140144 religious education
exemption from classes, 144147
Peaceful enjoyment of possessions Right to fair and public hearing
control of use of property advertisements
adverse possession, 132135 freedom of expression, 140144
Perjury presumption of innocence
telephone tapping acquittal in criminal proceedings, 138140
[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008
Index

Right to fair trial Surcharges


defamation social security
freedom of expression, 150153 prostitution, 135137
terrorism
control orders, 120131 Telephone tapping
Right to liberty and security perjury
terrorism right to respect for private and family life,
control orders, 120131 157160
Right to life Terrorism
police powers and duties control orders
death caused by restraint technique, right to liberty and security, 120131
147149 Torture
Right to respect for private and family life inhuman or degrading treatment or
European Court of Human Rights punishment
jurisprudence of court, 4479 police detention, 154157
telephone tapping Trafficking in human beings
perjury, 157160 international criminal law
protection of victims, 106119
Slavery
prostitution Victims
social security contributions, 135137 trafficking in human beings
Social security protection under international criminal
contributions law, 106119
prostitution, 135137

[2008] E.H.R.L.R. ISSUE 1. SWEET & MAXWELL LTD 2008

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