Issue 35 December 2006 - Human Rights Stop Press

As always the European Court of Human Rights has been busy. A Chamber of the Court gave judgment in Jelicic v Bosnia and Herzegovina (41183/02, October 31, 2006) in holding that there had been a violation of Art.6(1) and Protocol 1 Art.1 in the case where the applicant complained about the statutory prevention of the enforcement of a final and enforceable civil court judgment in her favour. Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Art. 6 (see Hornsby v Greece, judgment of March 19, 1997, Reports of Judgements and Decisions 1997-II, p.510, § 40). Here, delay of four years in the execution of the judgment was excessive and could not be justified.

In the Chamber judgment in Khudobin v Russia (59696/00, October 26, 2006) the European Court of Human Rights has held that were violations of the European Convention on Human Rights 1950, Art.3, Art.5 (3) (4) and Art.6 (1) after the applicant alleged: that he did not receive adequate medical treatment in the remand prison; that the conditions of his detention had been inhuman and degrading; that his pre-trial detention had exceeded a reasonable time; that his applications for release had either been examined with significant delays or not examined; and, finally, that his conviction had been based entirely on evidence obtained as a result of police provocation.

In the Chamber judgment in Wallova and Walla v the Czech Republic (23848/04, October 26, 2006) the Court held that there was a violation of the European Convention on Human Rights 1950, Art.8 after the applicants complained about being separated from their children and of the Czech authorities' failure to assist them.

In McKay v UK (543/03, October 3, 2006) the Court dismissed a complaint brought under Art.5 in holding that an arrested person who had been charged with a scheduled offence had not been deprived of his right to liberty when the magistrate before whom he had appeared had had no power to release him on bail. On the facts, the case had been conducted with due expedition; the accused had been released three days after his arrest.

In Wainwright v UK September 26, 2006, the UK was found to be in violation of Art.8 where a strip search was held to be a disproportionate interference with the right to privacy. The case related to invasion of privacy where a strip search on visitors to a prison was carried out. One of the visitors was a woman. The other was a severely mentally and physically handicapped adult. The Court emphasised that it was difficult to justify the highly invasive searches carried out where the subjects of the search were only visitors and not convicted prisoners. That in itself rather suggests that a prisoner might be expected to undergo such a procedure but a visitor should not be. In the circumstances, the searches were intrusive and distressing-they did not reach the minimum threshold required for Art.3. In total, 3,000 Euros were awarded to each applicant as compensation because the manner of a strip search was held to violate Art.8. The House of Lords had dismissed the claim primarily on the basis that the events in question had pre-dated the coming into effect of the Human Rights Act and that there was no tort of invasion of privacy at common law: [2004] 2 A.C. 406. Article 13 had also been violated because there had not been available an effective remedy for the breach of Art.8.

Human rights issues continue to arise in other jurisdictions. In Commission of the European Communities v Italy (371/04, 2nd Chamber, October 26, 2006), the European Court of Justice held that by not taking into account professional experience and seniority acquired while working in the State sector of another member state, Italy had failed to fulfill its obligations under Art.39 EC Treaty and Art.7 (1) of Reg.1612/68 to permit the freedom of movement of workers.

Closer to home in JM (Liberia) v Secretary of State for the Home Department, October 4, 2006, the Court of Appeal, in an important judgment, held that the phrase "in consequence of" in the Nationality, Immigration and Asylum Act 2002, s.84(1)(g) was to be interpreted widely, so that the Asylum and Immigration Tribunal had jurisdiction to determine a human rights claim on an application for variation of leave to appeal, even though removal would be only an indirect consequence of a refusal to vary.