Issue 34 October 2006 - Human Rights Stop Press: Benefits, Carlos the Jackal, Electoral law

The Court of Session vacation has meant that there has been little judicial consideration of human rights issues in Scotland in the higher courts over the last few months. However, Strasbourg has been busy as always. The following survey indicates the breadth of the current work of the Court.

Complaints of discrimination in the benefits and tax system contrary to Art.14 (prohibition of discrimination) in conjunction with Art.l of Protocol No.1 (protection of property) have featured in a number of recent applications brought against the UK. No violation of Art.14 or violation of Art.l of Protocol No.1 was found in Barrow v UK (no.42735/ 02); Pearson v UK (no.8374/03) and Walker v UK (no.37212/02).

Mrs Barrow complained that her invalidity benefit stopped when she reached 60 years of age, whereas a man in the same position would have received that benefit until he was 65. While women could claim their state pension at 60 and were exempt from national insurance contributions if they continued to work, Mr Pearson complained the he could not collect his state pension until the age of 65 and Mr Walker complained that he was obliged to pay national insurance contributions after reaching the age of 60.

The Court held that there was no violation. The alleged discrimination resulted from a difference in the age when men and women were entitled to a state pension in the UK. In the light of the original justification for the difference (to correct financial inequality between the sexes), the slowly evolving nature of the change in women's working lives, and in the absence of a common standard among European states, the Court found that the UK could not be criticised for not having started earlier on the road towards a single pensionable age or for introducing the reforms slowly and in stages, especially given the extremely far reaching implications for women and the economy in general.

On September 12, 2006, a chamber of the Court heard submissions in Burden v UK (no. 13378/05). The applicants are elderly unmarried sisters who live in the house they inherited from their parents. They have lived together all their lives. The house is owned jointly by the applicants. Each sister has made a will leaving all her property to the other sister. The applicants are concerned that, when one of them dies, the other will be forced to sell the house to pay inheritance tax. Under the 1984 Inheritance Tax Act, inheritance tax is charged at 40 per cent on the value of a person's property. Property passing from the deceased to his or her spouse or "civil partner" (a category introduced under the 2004 Civil Partnership Act for same-sex couples, which does not cover family members living together) is currently exempt from charge. The applicants complain that, when one of them died, the survivor would face a heavy inheritance tax bill, unlike the survivor of a marriage or a civil partnership. They rely on Art. 1 of Protocol No.1 taken in conjunction with Art.14.

Electoral law was the subject of the oral hearing in Yumak and Sadak v Turkey (no. 10226/03). The application concerns Turkish electoral law, according to which a party must obtain at least 10 per cent of the national vote in parliamentary elections in order to win seats in the National Assembly.

In the parliamentary elections of November 3, 2002 the applicants stood as candidates for the political party DEHAP (Democratic People's Party) in the province Pyrnak. As a result of the ballot, DEHAP obtained approximately 45.95 per cent of the vote (47,449 votes) in Pyrnak province, but did not secure 10 per cent of the vote nationally. The applicants were not elected, in accordance with s.33 of the Election of Members of Parliament Act (Law No.2939), which states that "in order to secure seats in Parliament, parties must obtain at least 10% of the valid votes cast nationally". Consequently, of the three parliamentary seats allotted to Pyrnak province, two were filled by the AKP Justice and Development Party), which obtained 14.05 per cent of the vote (14,460 votes), and the third by an independent candidate, Mr Tatar, who obtained 9.69 per cent of the vote (9,914 votes). Relying on Art.3 of Protocol No.1 (right to free elections), the applicants submit that setting a threshold of 10 per cent of the vote in parliamentary elections interferes with the free expression of the people in their choice of the legislature.

Freedom of expression featured in Monnat v Switzerland (no.73604/0l), on September 21, 2006, a chamber of the Court found a violation of Art.l0. There the case revolved around the right to broadcast a documentary which criticised the role of Switzerland during the Second World War. The Court held that the legal embargo enforced on the documentary amounted to censorship which could not be justified under Art. 10(2).

Turning to a matter of some controversy in this country -the fairness of speed cameras. In Francis and O’Halloran v UK (nos.25624/02 and 15809/02), the grand chamber of the European Court of Human Rights heard a challenge on September 27, 2006 brought by Liberty against the UK, in which it claims that the legislation requiring vehicle owners to disclose who was driving at the time their vehicle was pictured by a speed camera breaches Arts 6(1) and 6(2) of the Convention in that the legislation breaches the presumption of innocence, the right to silence and the right to a fair trial.

The terrorist known as "Carlos the Jackal" was the applicant in Ramirez Sanchez v France (no.59450/ 00). He complained that his detention in solitary confinement breached Art.3. He also complained that it violated Art.13. On July 4, 2006, by 12 votes to 5, the grand chamber of the Court held there was no breach of Art.3. The Court was unanimous in holding that Art.13 had been breached. He had been detained in solitary confinement for around eight years and two months. On the Art.3 complaint the Court found that the conditions of detention complied with the European Prison Rules which had been adopted by the Committee of Ministers on January 16, 2006. He had regular visits from his lawyers, a priest and doctors. His family could visit but chose not to. Whilst the period of solitary confinement was long there was a substantial reason for it. His health had not been affected. Having regard to his character and the danger he posed the confinement did not meet the minimum level of severity. However, for much of the time of his detention French law did not afford him access to an independent judicial authority where he could contest the prolongation of his confinement. Article 13 had been violated.