Issue 36 March 2007 - Human Rights Stop Press

The controversial relationship between human rights law and the rights of convicted prisoners continues to produce challenges.

As this issue was going to press it was reported that interdict proceedings were to be taken by Scottish prisoners to prevent the Scottish Parliamentary elections from taking place in May.The challenge stems from the decision in Smith v Scott (and which is reported in this issue) in which the Court of Session followed the European Court of Human Rights in holding that the inability of convicted prisoners to vote violated Art.3 of Protocol 1 to the ECHR.

Also ongoing is a judicial review of the use of prerecorded telephone messages telling the recipient of the call that the call emanates from a prison. A prisoner alleges that the use of this system breaches the right to respect for his family and private life. He is arguing that the message can inform people that he is in prison in circumstances which he would prefer to remain unknown and which may cause embarrassment to family members. One example given is where a prisoner telephones the place of work of a relative but the call is answered by a colleague of that relative. He argues that the system is not prescribed by law. The Scottish Prisons Complaints Commissioner has upheld complaints about this practice from a number of prisoners. The Scottish Prison Service has declined to follow the recommendation of the Commissioner to end the use of the pre-recorded message. They cite concerns relating to the need to protect the victims of crime from contact with the criminals.

Strasbourg has been busy again with decisions in a range of areas. Articles such as Art.3 state that brutality cases build upon the existing jurisprudence of the Court. Others like Burden v United Kingdom demonstrate novel arguments in new areas which cause the Court to test the limits of the principles of the ECHR. Tsafyo v United Kingdom might suggest that the approach taken by the House of Lords in relation to the application of Art.6 to administrative decision making might not be correct.

In Chitayev and Chitayev v Russia (No.59334/ OO) January 18, 2007, a chamber ruled that there were violations of Art.3, Art.5(1) (c),(3),(4),(5) and Art.13 as the applicants complained they were tortured and unlawfully arrested and detained by the Russian authorities and that there was no effective investigation into those events. They also complained that their home was unlawfully searched and their property unlawfully seized.

In Alsayed Allaham v Greece (App. No.25771 / 03) January 18, 2007, the Court ruled that there was a violation of Art.3. There the applicant complained he had been subjected to acts of police brutality and that the authorities had failed to carry out an adequate investigation into the incident.

In Tsfayo v United Kingdom (App. No.60860/00) The Times, November 23, 2006 the Court held that the Housing Benefit Review Board ("HBRB") decision making process breached Art.6 because the HBRB was lacking in independence from the original decision maker. judicial review by the courts was not enough to meet Art.6.

On one view, Tsfayo appears to conflict with the decision of the House of Lords in Begum (Runa) v Tower Hamlets LBC [2003] 2 A.C. 430. In that case it was held that review by the courts of an administrative body which itself did not meet Art.6 standards were enough to secure compliance with Art.6.

The challenge in Burden v United Kingdom (App. No.13378/05) The Times, January 19, 2007 was decided against the applicants. In that case there was a very high probability that the survivor of two sisters who had always lived together would have to sell their house to pay inheritance tax. The issue was not whether different criteria could have been chosen for tax exemption, but whether the scheme that treated differently those who were married or were in a civil partnership from those who were living together, even in a long-term settled relationship, exceeded any acceptable margin of appreciation. However, in the instant case it did not, and there was no violation of Art. 14 taken in conjunction with Art.1 of Protocol 1. Essentially the court held that any difference in treatment was not unlawfully discriminatory.