Clift v United Kingdom [2010] ECHR 1106 (13 July 2010)

In Clift v The United Kingdom, the European Court of Human Rights gave a broad reading to art 14 of the European Convention of Human Rights, finding that a person’s status as a particular class of prisoner could be a ground of discrimination under the Convention.

Facts

Clift had been serving a sentence of 18 years’ imprisonment.  In accordance with the law at the time, he became eligible for release on parole in 2002, and entitled to release in 2005.  In order to qualify for release on parole, prisoners serving determinate (fixed-term) sentences of more than 15 years’ imprisonment required the recommendation of the Parole Board and further approval by the Secretary of State.  For prisoners serving a fixed-term sentence of less than 15 years, or prisoners serving an indeterminate (life) sentence, the further step of approval by the Secretary was not required.

Clift was denied release in 2002 by the Secretary, despite a positive recommendation by the Parole Board.  He was later released on licence, but two years after his initial eligibility for release.  Clift claimed that the Secretary’s decision to deny his release constituted discrimination on the ground of his status as a prisoner serving a sentence of 15 years or more.  He argued that he was in an analogous position to fixed-term prisoners serving sentences of less than 15 years, but treated less favourably by the imposition of a more stringent requirement for release.  He argued that the discrimination was objectively unjustifiable.  He alleged that this violated art 14 of the Convention (which prohibits discrimination), considered in conjunction with art 5 (which protects the right to liberty and security of person).

Clift’s claim was unsuccessful before the Divisional Court, on appeal to the Court of Appeal, and before the House of Lords.  Clift then appealed to the European Court of Human Rights.

The main issue before the Court was whether or not the alleged ground of discrimination – the applicant’s status as a certain class of prisoner – fell within the ambit of art 14.  In particular, did the ground of ‘other status’ mentioned in art 14 extend to cover a status that was not ‘personal’ to the complainant but rather the result of a distinction made by law (between certain classes of prisoner) or because of the conduct of the complainant.  The United Kingdom government argued that these characteristics were divorced from the ‘innate’ character of the individual, and therefore were not covered by the section.  The applicant argued that in light of the purpose of the Convention to protect human rights, the words of art 14 should not be strictly construed.

Decision

The Court began by acknowledging that the alleged basis of discrimination did not expressly fall within the terms of art 14.  However, they recognised that the grounds listed in art 14 were ‘illustrative and not exhaustive’.  The Court accepted that some of the grounds specifically relate to ‘innate’ or ‘inherently personal’ characteristics.  However, it was noted that in the past, the Court has accepted that the word ‘status’ has been given a broad reading and not restricted in this way.  The decision in James and Others v the United Kingdom, 21 February 1986, in which the alleged ground of discrimination was a difference between large and small property owners, was mentioned, as was the decision in Engel and Others v the Netherlands, 8 June 1976, where the Court held that a distinction based on military rank could run counter to art 14.  The Court concluded that the applicant, in being classified as a certain type of prisoner, did enjoy ‘other status’ for the purposes of Article 14.

In determining whether the applicant was in an ‘analogous position to other prisoners treated more favourably,’ a requirement under art 14, the Court said that the comparator need not be identical to the applicant; the fact that there were ‘differences’ between the groups did not preclude the application of art 14.  As the same principles were used to assess the risk posed by long-term prisoners serving less than 15 years and long-term prisoners serving 15 years or more, the applicant was deemed to have been in the same circumstances as prisoners serving less than 15 years.

The Court then considered whether the applicant was treated less favourably without objective justification.  They accepted that more stringent early release criteria might be justified with respect to some prisoners who may pose a higher risk to the public.  However, they said that in this case, applying more stringent criteria to prisoners serving determinate sentences than those serving indeterminate life sentences (who might be thought to pose greater risks) appeared to ‘lack any objective justification.’  The Court also accepted that it may be legitimate to have a ‘cut off point’ at which more stringent requirements would be applied, such as fifteen years (in this case), but added this could only be justified if it ‘achieved the legitimate aim pursued.’  The Court concluded that it did not here.

The appeal was successful, and the applicant received non-pecuniary damages for the ‘feelings of frustration, uncertainty and anxiety’ suffered in the extra years of incarceration.

The Court’s decision sheds some light on the scope of art 14.  In future cases, discrimination based upon categories of prisoner may fall foul of the Convention.  The Court has clearly favoured a broad, non-exhaustive approach to art 14.  However, while rejecting a narrow interpretation of ‘other status’ in art 14, and drawing analogies to earlier cases where the ‘other status’ of the complainant was not innate or personal, the Court does not seem to have provided any clear guidance as to how to determine whether a particular trait or ‘situation’ would be classified as ‘other status’.  It seems that future cases will be interpreted broadly and by analogy with this and past cases.

Relevance to the Victorian Charter

Section 8 of the Victorian Charter recognises the right to ‘recognition and equality before the law’, including ‘effective protection against discrimination’.  While the term ‘discrimination’ is defined under s 3 of the Charter by reference to discrimination on the basis of an attribute set out in s 6 of the Equal Opportunity Act 1995 (Vic), which does not recognise ‘other status’ as a protected attribute, this decision supports a broad and purposive approach to determining the scope and application of those attributes that are recognised and protected. 

The decision is at http://www.bailii.org/eu/cases/ECHR/2010/1106.html. 

Kelly Ruffin, Paralegal, Mallesons Stephen Jaques Human Rights Law Group

Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010)

Does the right to marry, and the ‘family unit’, extend to same-sex couples?  The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues.

Facts

Under Austrian domestic law, a marriage concluded by a same-sex couple is null and void.  In 2002, Schalk and Kopf, a same-sex couple, applied to the Vienna Municipal Office to marry, but their request was refused.  They ultimately applied to the European Court of Human Rights to challenge the decision, founding their application arts 12 and 14 of the European Convention of Human Rights.

Decision

Violation of the right to marry

Article 12 of the Convention guarantees the right to marry and to found a family to ‘[m]en and women of marriageable age … according to the national laws governing the exercise of this right’.  Relying on the Court’s case-law, which established that the Convention was a ‘living instrument which is to be interpreted in present-day conditions’, the applicants argued that the right should be read as one that applied to same-sex couples.

The Court disagreed, holding that the Convention did not impose an obligation to allow same-sex couples to marry.  While the right enshrined in art 12 was not confined to opposite-sex couples, the issue of whether to allow same-sex couples to marry was reserved for regulation by contracting states. 

Noting that contracting states were ‘best placed to assess and respond to the needs of society’, the Court emphasised its reluctance to substitute its own judgment in the place of contracting states.  While the institution of marriage had undergone ‘major social changes’ since the Convention was adopted, it had ‘deep-rooted social and cultural connotations’ that differ largely between societies.  With only six of the forty-seven contracting states allowing same-sex marriage, the Court thought there was ‘no European consensus’ on the issue. 

Violation of the right to respect for private and family right on the basis of sexual orientation

The Convention also guarantees:

• the right to respect for private and family life under art 8, a right that may only be limited ‘in accordance with the law and [as] necessary in a democratic society’ for certain purposes; and
• the enjoyment of the rights and freedoms secured by the Convention without discrimination under art 14.

Relying on art 14 (taken in conjunction with art 8), the applicants alleged that, by being denied access to marriage, they had been unlawfully discriminated against on based on their sexual orientation. 

Importantly, the Court’s decision recognises for the first time that the notion of ‘family life’ under art 8 extends to same-sex partners living in a de facto relationship, ‘just as the relationship of a different-sex couple in the same situation would’.

However, the Court concluded that there was no obligation to grant access to marriage to same-sex couples based on art 14.  Because the Convention must be read as a whole, and its articles construed in harmony with one another, given the conclusion that art 12 did not impose an obligation to grant access to marriage to same sex-couples, it could not be implied from art 14 (taken in conjunction with art 8).

The applicants also alleged that they had been discriminated against on the basis of their sexual orientation because (at the time of the appeal was filed in 2002) they did not have any other right to legal recognition of their relationship.

Subsequent changes in Austrian domestic law changed the complexion of the applicants’ claim.  After their application was lodged, but before it was heard, the Austrian Registered Partnerships Act came into force.  It granted same-sex couples the right to enter into ‘registered partnerships’, and implemented a range of reforms to provide registered partners with many (but not all) of the same legal rights as married couples.  The differences noted by the Court included that:

• registered partnerships were concluded in different offices to marriages;
• registered partners could take on a common ‘last name’, whereas married couples had a common ‘family name’; and
• registered partners could not adopt children, nor access artificial insemination.

While the Court acknowledged that there was an ‘emerging European consensus towards legal recognition of same-sex couples’, it was an area to be regarded ‘as one of evolving rights with no established consensus’.  Accordingly, contracting parties enjoy a margin of appreciation in the timing of the introduction of legislative changes, and the Austrian Government could not be reproached.

Despite noting that the ‘differences based on sexual orientation require particularly serious reasons by way of justification’, the Court held the contracting parties enjoyed a margin of appreciation under art 14 about the content of recognition granted to same-sex couples.  The Austrian Government had not exceeded the margin in its choice of rights and obligations conferred by registered partnership.  The differences in parental rights ‘correspond[ed] … to the trend in other member States’ and, in any event, because the applicants had not claimed that they were directly affected by the differences, the Court declined to examine them in detail.

Relevance to the Victorian Charter

Like the Convention, the Victorian Charter also affords protections to families, protecting persons from unlawful or arbitrary interference with their family (s 13) and acknowledging that families ‘are the fundamental group unit of society and are entitled to be protected’ (s 17).  At the very least, the decision is likely to be influential in interpreting what constitutes a ‘family’ under the Victorian Charter.

The Victorian Government has in recent times introduced a range of reforms intended to grant to same-sex couples the same legal rights available to other couples under state law (see the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001) and to allow same-sex partners to register their relationship (see the Relationships Act 2008). 

For now, the more contentious issue of access to marriage by same-sex couples cannot be resolved at the state (or territory) level in Australia.  With the Howard Government’s 2004 amendments to the Marriage Act 1961 reserving marriage to ‘a man and a woman to the exclusion of all others’, s 109 of the Constitution (which renders invalid any state law that is inconsistent with a Commonwealth law) looms large.  The issue presents another example of the constraints of state and territory-based human rights protections in the Australian federal compact.

The decision is at http://www.bailii.org/eu/cases/ECHR/2010/995.html. 

Samuel Porter, Solicitor, Mallesons Stephen Jaques Human Rights Law Group

Gafgen v Germany [2010] ECHR 759 (1 June 2010)

The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the European Convention on Human Rights.  The Court also considered that the applicant remained a victim of the violation, despite limited remedial actions taken by the State party.  Further, it held that the applicant had been afforded a fair trial, because his confessions obtained by way of the breach had been excluded from evidence, even though real evidence obtained as a result of the confession evidence was not excluded.

Facts

On 27 September 2002, Magnus Gafgen, the applicant, lured the eleven year old son of a wealthy family into his flat and suffocated him.  He then sent a ransom note to the boy’s parents, claiming the boy was still alive and demanding one million euros.

Three days later Gafgen collected the ransom money.  He was apprehended later that day at Frankfurt airport.  During the arrest the police pinned him to the ground, causing shock and minor lesions.

Gafgen was taken to the police station for questioning.  He was advised of his rights, including the right to remain silent and consult a lawyer.  He was then questioned in an attempt to discover his victim’s whereabouts.  He had a thirty minute consultation with a lawyer.  He subsequently indicated that two other people had kidnapped the boy and hidden him in a hut by a lake.

Early on 1 October 2002, having failed to elicit the boy’s whereabouts, Mr Daschner, Deputy Chief of Frankfurt Police, ordered an officer, Mr Ennigkeit, to threaten Gafgen with the infliction of considerable pain if he did not reveal the boy’s whereabouts.  Daschner had previously ordered other officers to do so but they had refused.  Ennigkeit, however, made the threats.  Within ten minutes Gafgen revealed he had killed the boy and disclosed the whereabouts of his body.  Gafgen was then driven to the location of the body.

Immediately afterwards Daschner wrote a statement admitting that, in the belief that the child was still alive and in danger, he had ordered that Gafgen be threatened with considerable pain which would not leave any injuries.  He confirmed that the treatment would be carried out under medical supervision.  He had also ordered another police officer to obtain a ‘truth serum’ to be administered to Gafgen.  Because Gafgen had revealed that the boy was dead and where his body was, these threats had not been carried out.

Gafgen claimed he had been physically assaulted and threatened with being sexually abused during the interrogation.  He also claimed he was made to walk to the location of the boy’s body barefooted.

While there was some evidence of bruising, lesions and closed blisters on Gafgen’s feet, the Court found that his allegations of physical abuse were not proven beyond reasonable doubt, because the medical evidence could have supported a finding that the injuries occurred during the arrest.

The Court found that Gafgen had been threatened as described in Daschner’s statement.

Decision

Inhuman treatment

The Court found that, while ‘the fear of physical torture may itself constitute mental torture’, the threat in this case was ‘sufficiently serious to amount to inhuman treatment prohibited by Article 3, but…did not reach the level of cruelty required to attain the threshold of torture’.

Redress

It was held that sufficient redress for a violation of art 3 would be ‘a thorough and effective investigation capable of leading to the identification and punishment of those responsible’ as well as ‘an award of compensation…where appropriate’.

The majority held that the investigation of the responsible officers had been appropriate, but their punishment of suspended sentences and fines was ‘manifestly disproportionate to a breach of one of the core rights of the Convention’, and did not ‘have the necessary deterrent effect’.  However, a minority of judges said it was not the Court’s role to question the domestic court’s decision as to appropriate criminal punishments.

The majority also criticised the domestic courts for not considering the merits of the applicant’s compensation claim, after three years.

Because Gafgen had not had sufficient redress, it was held that he remained a victim of the violation of art 3.

Right to a fair trial

The applicant claimed that he was a victim of a breach of art 6, which guarantees the right to a fair trial.  The basis of this claim was that, while his admissions under threat had been excluded from evidence during the domestic trial, the real evidence discovered as a result of those admissions was admitted.  The majority noted prior decisions that ‘incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value.  Any other conclusion would only serve to legitimise, indirectly, the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe’.

The Court noted the competing rights and interests at stake, the potential that the real evidence would have been discovered anyway and the fact that the applicant gave two confessions at trial after having been advised that his previous confessions were inadmissible.  It observed that art 6, unlike art 3, did not enshrine an absolute right, although acknowledging that ‘the admission of evidence obtained by conduct absolutely prohibited by art 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition’.

However, the majority concluded that:

it was the applicant’s second confession at the trial which – alone or corroborated by further untainted real evidence – formed the basis of his conviction for murder and kidnapping with extortion and his sentence.  The impugned real evidence was not necessary, and was not used to prove him guilty or to determine his sentence.  It can thus be said that there was a break in the causal chain leading from the prohibited methods of investigation to the applicant’s conviction and sentence in respect of the impugned real evidence.

It was therefore held that the failure to exclude the real evidence had not denied the applicant his right to a fair trial.

This decision was criticised in minority judgments on the basis that it:

• weakens the absolute nature of art 3 of the Convention;
• provides an incentive for law enforcement officers to violate art 3; and
• is nonsensical in its finding that real evidence obtained by way of inhuman treatment could be admitted if it was not the basis on which the accused is convicted, because such evidence would, as a matter of logic, be irrelevant.

Damages

The applicant did not claim any award of compensation, he only sought a retrial.  This application was denied on the basis that his art 6 rights had not been violated.

Relevance to the Victorian Charter

Section 10 of the Victorian Charter provides a right to be free from torture and cruel, inhuman or degrading conduct.  This case underlines that this right is absolute and non-derogable, even in cases of extreme pressure or emergency.  It also demonstrates that even relatively low level threats may violate this right.

However, this case may provide a basis upon which the absolute nature of the right under s 10 can be weakened.  While it held that it would be a violation of the right to a fair trial to admit into evidence in a criminal trial admissions obtained by way of a violation of the right to be free from torture and inhuman treatment, it allowed real evidence, obtained by way of that violation, to be admitted.  This may be able to be used to base an argument for admission of evidence, obtained in such a way, where a Victorian court is undertaking a balancing exercise with regards to such evidence under s 138 of the Evidence Act 2008 (Vic).  This would weaken the right to redress afforded to a victim of a violation of s 10 and would also provide incentive for law enforcement officers to engage in violations of s 10, if they believe that admissible real evidence might be obtained. As a result, it may also serve to weaken the nature of the right to a fair hearing provided under s 24 of the Charter.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/759.html.

Megan Fitzgerald, Lawyer, Lander & Rogers, on secondment to the Human Rights Law Resource Centre

Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010)

The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to family in violation of art 17(1) of the International Covenant on Civil and Political Rights.  The Committee also opined the right to a fair hearing was compromised by procedural delays in violation of art 14(1) of the ICCPR.  The delays were found to adversely affect Mr Gonzalez’s application for citizenship.

Facts

Mr Gonzalez is a Cuban doctor who entered Guyana in May 2000 to provide medical services for a period of two years.  He entered Guyana under a medical cooperation agreement between the Cuban and Guyanese governments.  Mr Gonzalez worked for the Cuban Central Unit for Medical Cooperation (UCCM).  The UCCM required him to obtain prior authorization from them before entering into contracts with third parties.  It also provided that he must comply with the legal provisions in force for citizens of Cuba should he decide to marry during the period of his contractual obligations.  Mr Gonzalez worked at a regional hospital a little over a year.  In December 2001, Mr Gonzalez married a Guyanese woman and subsequently applied to the Ministry of Home Affairs for Guyanese citizenship.  The Ministry of Home Affairs advised Mr Gonzalez that the Cuban Embassy warned of possible consequences of granting Mr Gonzalez citizenship or a work permit and that setting such a precedent could jeopardize the medical cooperation between both countries.  The Ministry refused to process his citizenship and application for permanent residence.  Mr Gonzalez filed a writ of certiorari in the High Court challenging the refusal of the Minster to register him as a Guyanese citizen.

The High Court granted Mr Gonzalez certiorari and quashed the decision of the Minister of Home Affairs as being unreasonable, arbitrary, in breach of principles of natural justice and based on irrelevant considerations.  It ordered the office of the Minister to review the application for citizenship within one month of the date of the Court’s decision.  The Minister of Home Affairs failed to review the application by the Court’s deadline.

Mrs Gonzalez subsequently filed a writ of certiorari in the High Court challenging the Minister’s refusal to register her husband as a Guyanese citizen and their failure to comply with the Court’s order to review his case within the one month deadline.  She brought the challenge as a ‘miscarriage of justice’ and a violation of her husbands’ constitutional rights as the spouse of a Guyanese citizen.  She also claimed that, as a dissident, he would face long term imprisonment or execution if returned to Cuba.  The High Court dismissed her motion but did not provide reasons for so doing for a further 28 months.  The court’s failure to issue a ruling prevented Mrs Gonzalez from filing an appeal with the Court of Appeals.

The Committee was asked to consider:

• whether the length of the judicial proceedings before the High Court and the presiding judge’s delay in submitting his decision were unreasonable, in violation of the right to a fair hearing protected by art14(1) of the ICCPR; and
• whether the prolonged proceedings constituted an unlawful and arbitrary interference with Mr Gonzalez and his wife’s right to family under art 17(1) of the ICCPR.

Decision

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order for a complaint to be deemed admissible.  The Committee determined that High Court proceedings were unduly prolonged and that the delay in issuing reasons was unreasonable.  The Committee stated:

The Committee considers that, in the present case, domestic remedies have been unreasonably prolonged and that article 5 paragraph 2 (b), does not preclude it from examining the communication.

Article 14(1): Right to a Fair Hearing

The Committee determined the delays in the judicial proceedings constituted a violation of the right to a fair hearing under art 14(1) of the ICCPR.  The Committee stated:

The Committee recalls the concept of a fair hearing, as enshrined in article 14, paragraph 1, of the Covenant, necessarily entails that justice be rendered without undue delay.  The Committee concludes that the above delays were unreasonable and that article 14, paragraph 1, of the Covenant has been violated.

Article 17(1): Prohibition of Arbitrary or Unlawful Interference with Family

The Committee did not take a position on whether or not the interference with both spouses’ family was unlawful within the meaning of art 17(1) of the ICCPR.  However, the Committee concluded the manner in which the Guyanese authorities dealt with Mr Gonzalez’s request for citizenship was unreasonable and constituted an arbitrary interference with family under art 17(1) of the ICCPR.  The Committee noted Mr Gonzalez was legally prohibited from residing in Guyana and forced to live apart from his wife during the prolonged judicial proceedings.  The Committee determined Mr Gonzalez and his wife are entitled to an effective remedy, including compensation and appropriate action to facilitate family reunification.

Relevance to the Victorian Charter

The protection of families and children enshrined in s 17(1) of the Victorian Charter is similar to the prohibition of arbitrary or unlawful interference with family found in art 17 of the ICCPR.  Thus, the Victorian Supreme Court may adopt a similar approach when considering the effect prolonged judicial proceedings have on the right to family.  The procedural guarantees to ensure the right to a fair hearing, which encompasses the right to a hearing without unreasonable delay, found in s 24 of the Charter closely mirror art 14(1) of the ICCPR.

The decision is at http://tb.ohchr.org/default.aspx.

Loren Days is an LLM candidate at Melbourne Law School and a volunteer with the Human Rights Law Resource Centre

Kennedy v United Kingdom [2010] ECHR 682 (18 May 2010)

Whilst specific breaches of the European Convention of Human Rights were not ultimately upheld, this case provides insight into the application and scope of the right to privacy enshrined in art 8 of the Convention.  Furthermore, the European Court of Human Rights discussed in depth the breadth of the requirement to exhaust domestic remedies and the jurisdiction available to courts that deal with legislative compatibility with human rights instruments.

Facts

Mr Kennedy was imprisoned in the early 1990s after a series of appeals and retrials relating to what he alleged was a false charge of murder by police of a cellmate after he was held overnight at a police station for drunkenness.  The case attracted a large amount of public and parliamentary scrutiny of the police force and United Kingdom judicial system and after being released, Mr Kennedy actively campaigned against miscarriages of justice.

After his release, Mr Kennedy established a small business which was initially successful, however began to suffer as a result of interferences with his business telephone.  Mr Kennedy suspected that this was due to his email, mail and telephone communications being intercepted as a result of his high profile case and involvement in campaigning against the police.  Mr Kennedy alleged that interception warrants that were originally authorised for the criminal proceedings against him were being unlawfully renewed.

Decision

The Court found that no breaches of art 8 (right to privacy), art 6 (right to fair hearing) or art 13 (right to an appropriate remedy) of the Convention had occurred.  The remainder of this note is concerned with the Court’s discussion of art 8, as this right formed the substantial portion of the judgment.

In order to address Mr Kennedy’s individual complaint under art 8, the Court was required to investigate the merits of whether there was an unlawful interference with Mr Kennedy’s right to privacy.

The Court held that mail, telephone and email communications, even in business dealings, are capable of protection under art 8 to be included in interpretations of ‘private life’ and ‘communications’.  Whilst the Court’s jurisdiction normally permits it to only determine whether the manner in which a law has been applied gives rise to a violation of the Convention, legislation involving secret surveillance measures requires particular supervision and care, and as such, the Court had jurisdiction to broaden their scope of analysis.  The Court was required to determine whether there was a ‘reasonable likelihood’ that Mr Kennedy’s communications were being intercepted.

The Court found that this was enough to give rise to a complaint, however, it dismissed his individual complaint on the basis that the interference was justified.  This accorded with the exception available in art 8(2) of the Convention, and required the Court to determine whether the domestic Act itself was proportionate, necessary and in accordance with the rule of law.  The Court undertook extensive analysis to determine whether the intertwining roles of the relevant Commissioner, Code, Act and policy satisfied this outcome.  The Court found that in this case there was sufficient clarity and effective safeguards to ensure that the Act, and the interference with Mr Kennedy’s communication, was therefore not a breach of art 8 of the Convention.

Relevance to the Victorian Charter

The right to privacy is enshrined under section 13(a) of the Victorian Charter, which states that a person has the right not to have their privacy, home or correspondence unlawfully or arbitrarily interfered with.

The Court’s ruling on the scope of the right to include email, telephone and mail correspondence, even in the course of business, is helpful for interpreting this section.  If raising an individual complaint related to this right, it may be necessary for a similar, policy-based requirement of ‘reasonable likelihood’ to be raised by an application under the Charter.

The decision is at www.bailii.org/eu/cases/ECHR/2010/682.html.

Alexandra Phelan, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Kononov v Latvia [2010] ECHR 667 (17 May 2010)

The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.

The Grand Chamber had to assess whether, at the time of the offence, international law provided a legal basis to convict Mr Kononov for war crimes and, furthermore, whether he could he have foreseen that his actions would make him guilty of those offences.  Unless both tests were satisfied, the conviction would contravene art 7. The Grand Chamber also considered how the extension of statutory limitations should be treated under Article 7.

Facts

As a commanding officer in the Soviet Army in 1944, Mr Kononov and his unit brutally murdered nine Latvian villagers and burned down their houses and farm buildings.  In 2004, the Latvian Criminal Affairs Division convicted Mr Kononov of offences contrary to Article 68-3 of the 1961 Criminal Code.  This provision states:

Any person found guilty of a war crime as defined in the relevant legal conventions…shall be liable to life imprisonment or to imprisonment for between three and fifteen years.

The ‘relevant legal conventions’ are the Hague Convention 1907, the Geneva Convention (IV) 1949 and the Protocol Additional to that Convention 1977.  Also relevant was Article 45-1 of the 1961 Code, which specifies that no statutory limitation applies to war crimes.

At the time of the offence, however, the applicable law was the 1926 Criminal Code of Soviet Russia.  War crimes were not offences under that code, which also contained a 10 year statutory limitation for criminal prosecutions.  Mr Kononov appealed on the basis that Articles 68-3 and 45-1 had been retrospectively applied to convict him, in violation of art 7 of the Convention.  That article relevantly says:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Decision

Majority

The majority of the Grand Chamber affirmed that the guarantee against retrospective criminal liability is ‘an essential element of the rule of law’ (at 185) and should be applied to protect against arbitrary conviction and punishment.  Article 7 embodies the principles that a crime and its penalty can only be defined and prescribed by law, and that the criminal law should not be broadly construed against an accused.  Article 7 therefore requires that the law clearly define an offence.

An offence will be clearly defined in law if it can be known from the wording of a provision (and judicial interpretation and legal advice) which acts or omissions attract criminal liability.  A law can be written or unwritten, but must be accessible and foreseeable.  Gradual clarification of the criminal law through judicial interpretation is not caught by art 7, as long as it is consistent with the essence of the offence and is reasonably foreseeable.

Turning to Mr Kononov’s case, the majority of the Grand Chamber said that Article 68-3 was based on international, not national law.  It was therefore irrelevant that war crimes were not domestic offences at the time.  After assessing the state of international law on 27 May 1944, the majority held that it provided a sufficiently clear legal basis to convict Mr Kononov for war crimes.

Furthermore, as Mr Kononov was a commanding military officer, it should have been foreseeable that his actions would constitute war crimes for which he could be criminally prosecuted.  Interestingly, the majority held this despite noting that the relevant international laws and customs were not published in the USSR or the Latvian SSR at the time.

The majority also held that, as Mr Kononov was convicted under international law, the statutory limitation under the 1926 Criminal Code did not apply.  At the time of the offence, international law did not prescribe a time limit for the prosecution of war crimes.  Nor have subsequent developments introduced such limits.  Therefore the conviction was not statute barred.

Accordingly, as Mr Kononov was convicted of an offence that was a crime under international law at the time it was committed, art 7 was not violated.

Concurring opinion

In a joint concurring opinion, four judges departed from the reasoning of the majority on the statutory limitation issue.  They preferred to see it as a procedural issue relevant to fairness of proceedings and art 6 of the Convention, rather than art 7.  They held that the belated conviction of Mr Kononov on the basis of laws existing at the time involved no question of retrospective application of substantive law.

It is questionable which is the better approach.  On a literal reading, art 7 is concerned solely with whether an act or omission constituted an offence at the time it was committed.  It is not concerned with whether prosecution of the offence was subsequently statute barred.  However, as the majority pointed out, art 7 should be construed broadly to protect against arbitrary conviction and punishment.  Therefore, it is arguable that the courts should read into it a prohibition on the arbitrary extension of time limits for criminal prosecution.

Dissenting opinion

The dissenting opinion by three judges disagreed with the majority on the factual question as to whether international law at the time provided a sufficiently clear legal basis for Mr Kononov’s conviction.  They also held that the prosecution was statute barred under the 1926 Criminal Code.  The overriding of this limitation by Article 45-1 of the 1961 Criminal Code involved the retrospective application of the criminal law in contravention of art 7.  As discussed above, it is debatable whether art7 should apply to time limits on prosecution.

Relevance to the Victorian Charter

The guarantee in art 7 is substantively the same as the protection against retrospective criminal laws in s 27 of the Victorian Charter.  Specifically, s 27(1) says that a person ‘must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in’.  Section 27(4) says that the section does not affect acts or omissions that were criminal offences under international law at the time.

Kononov’s case adds to the jurisprudence on this fundamental protection.  In particular, it should guide Australian courts in determining whether an act or offence was a criminal offence under international law at the time it was committed.  The proper approach in such cases is firstly to determine whether an offence was clearly defined by international law at the time.  It must then be assessed whether the law was sufficiently accessible and foreseeable.  This will be satisfied if an accused could reasonably have been expected to know that their actions would make them criminally liable.

The decision is at www.bailii.org/eu/cases/ECHR/2010/667.html.

Marc Fauvrelle, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Eu-min Jung & Ors v Republic of Korea, UN Doc CCPR/C/98/D/1593-1603/2007 (30 April 2010)

The UN Human Rights Committee has held that the Republic of Korea violated art 18, paragraph 1 of the International Covenant on Civil and Political Rights in convicting and sentencing to imprisonment, 11 individuals who refused to be drafted for compulsory military service as a direct expression of their religious beliefs.

The Committee held that the conviction and sentence amounted to an infringement of the complainants’ freedom of conscience and a restriction on their ability to manifest their religion or belief.

Facts

Korea’s Military Power Administration sent each of the applicants a notice of draft for military service requiring enlistment in the army. Each of the applicants refused to be drafted on account of their religious belief and conscience.

Subsequently, each of the applicants were arrested, charged, convicted and sentenced to one and a half years of imprisonment by the District Court under art 88 (section 1) of the Korean Military Service Act.  On appeal, the Supreme Court upheld all of the convictions and sentences.

Appeals to the Supreme Court

Article 88 (section 1) of the Military Service Act provides for the offence of ‘Evasion of Enlistment’ which is triggered in circumstances where a person has received a notice of enlistment and fails to enlist in the army following the expiration of the report period, without justifiable reason.  The offence is punishable by up to 3 years imprisonment.

It was argued by the applicants that the absence in Korea of an alternative to compulsory military service, under pain of criminal prosecution and imprisonment, breached their rights under art 18, paragraph 1 of the Covenant.  The same argument was subsequently put to the Committee.

The Supreme Court relied on similar reasoning in each appeal to uphold the convictions.

Constitutional challenge

Although unrelated to the proceedings in this case, a constitutional challenge to art 88 of the Military Service Act was instituted in 2004 on the grounds of incompatibility with the protection of freedom of conscience under the Korean Constitution.

This challenge was rejected by the Constitutional Court on the basis that the Constitutional protection does not grant an individual right to refuse military service, and conscientious objection to the performance of military service can only be recognised as a valid right if the Constitution expressly provides for that right.

Decision

Korea raised the following issues in response to the applicants’ argument:

1. National security – the need to build military means for the purposes of defense and ensure sufficient ground forces, and concern that alternative military service would jeopardise national security.
2. Equality between military and alternative service – the introduction of alternative service arrangements should be preceded by a series of measures:
   1. stable and sufficient provisions of military manpower;
   2. equality between people of different religions as well as those without;
   3. in-depth studies on clear and specific criteria for recognition of an exemption; and
   4. consensus on the issue among the general public.
3. Lack of a national consensus on the matter – introduction of an alternative arrangement at a premature stage within a relatively short period of time, without public consensus, would intensify social tensions rather than contribute to social cohesion.

The Committee commented that Korea’s response to the applicants’ submission reiterated arguments previously considered by the Committee (in Yeo-Bum Yoon and Myung-Jin Choi v. the Republic of Korea, Communication Nos 1321/2004 and 1322/2004) and as such, applied its earlier jurisprudence.

In particular, the Committee endorsed the following comments in Yeo-Bum Yoon and Myung-Jin Choi:

While the right to manifest one’s religion or belief does not as such imply the right to refuse all obligations imposed by law, it provides certain protection, consistent with article 18, paragraph 3, against being forced to act against genuinely-held religious belief.

The Committee also recalls its general view expressed in General Comment 22[4] that to compel a person to use lethal force, although such use would seriously conflict with the requirements of his conscience or religious beliefs, falls within the ambit of article 18.

As to the issue of social cohesion and equitability, the Committee considers that respect on the part of the State for conscientious beliefs and manifestations thereof is itself an important factor in ensuring cohesive and stable pluralism in society.  It likewise observes that it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service.

The Committee held that:

the [applicants’] refusal to be drafted for compulsory military service was a direct expression of their religious beliefs which, it is uncontested, were genuinely held and that the [applicants’] subsequent conviction and sentence amounted to an infringement of their freedom of conscience and a restriction on their ability to manifest their religion or belief.  The Committee finds that the State party has not demonstrated that in the present cases the restrictions in question were necessary, within the meaning of article 18, paragraph 3 and that it has violated article 18, paragraph 1, of the Covenant.

The Committee held that Korea was under an obligation to provide the applicants’ with an ‘effective remedy’, including compensation and to avoid similar violations of the Covenant in the future, pursuant to art 2, paragraph 3(a) of the Covenant.

The Committee reinforced the notion that by becoming a party to the Optional Protocol to the Covenant, Korea had undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, as well as to provide an effective and enforceable remedy where a violation has been established.

Relevance to the Victorian Charter

This decision will be particularly relevant to the interpretation of s14 of the Victorian Charter, being the right to freedom of thought, conscience, religion and belief.

Whilst compulsory military service has been abolished in Australia since 1972, the approach taken by the Republic of Korea on the basis of defending national security is a prevalent theme in current debate surrounding the introduction of counter terrorism legislation in Australia.

The consideration of the ‘necessity’ of the restrictions on human rights in this case will also assist in interpreting the scope of permissible limitations under s7(2) of the Charter.

The decision is at http://tb.ohchr.org/default.aspx.

Kate Moore is a lawyer with Freehills and a volunteer with the Human Rights Law Resource Centre

Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010)

Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010)

The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, was incompatible with the prohibition against arbitrary detention under art 9(1) of the International Covenant on Civil and Political Rights.

The Committee also opined, without deciding the matter, that the post-sentence detention of Tillman and Fardon may contravene the prohibition against double punishment under art 14(7) and against retroactive punishment under art 15(1).

Facts

Tillman

Kenneth Tillman was convicted of a number of serious sexual offences on 6 March 1998.  He was sentenced to ten years’ imprisonment.  One week prior to his release in April 2007, the Attorney-General of NSW filed an application under the Crimes (Serious Sex Offenders) Act 2006 (NSW) requesting that Tillman be detained for a further five years.  The Supreme Court of NSW granted an interim order in April 2007 and then, on 18 June 2007, a further order that Tillman be detained in prison for a further year.

Fardon

On 30 June 1989, Robert Fardon was sentenced to 14 years’ imprisonment for a number of serious sexual offences.  His sentence expired on 30 June 2003.

On 6 June 2003, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force and, on 17 June 2003, the Attorney-General of Queensland filed an application under that Act seeking that Fardon be detained indefinitely.  Pursuant to a series of decisions by the Supreme Court of Queensland, Fardon was subject to a continuing detention order until 4 December 2006, after which he was released and made subject to a conditional supervision order.

Both Tillman and Fardon complained that their post-sentence detention was incompatible with:

• the prohibition against double punishment under art 14(7) of the ICCPR; and
• the prohibition against arbitrary detention under art 9(1) of the ICCPR.

Decision

Summary

In both cases, the Committee held that the facts disclosed a violation of art 9(1), in light of which they did not consider it necessary to consider the complaints separately under art 14(7).

In accordance with art 2(3) of the ICCPR, the Committee held that Australia is under an obligation to provide Tillman and Fardon with an effective remedy for this breach, including the termination of their detention.

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order that a complaint is deemed admissible to the Committee.  Rejecting Australia’s assertion that Tillman had not exhausted domestic remedies because he did not seek a writ of habeas corpus or seek leave to appeal to the High Court (unlike Fardon, who sought and was granted leave but was unsuccessful in the event), the Committee stated:

For the purposes of the Optional Protocol, an author is not required to exhaust domestic remedies if the jurisprudence of the highest domestic tribunal has decided the matter at issue, thereby eliminating any prospect of success of an appeal to the domestic courts.

Article 9(1): Prohibition of Arbitrary Detention

In both cases, the Committee concluded that the post-sentence detention of the authors was incompatible with art 9(1) for a number of reasons, including that:

• The authors had already served their terms of imprisonment yet continued to be detained.  The Committee stated that this ‘detention amounted, in substance, to a fresh term of imprisonment which…is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law’.
• Imprisonment is penal in character and ‘can only be imposed pursuant to a conviction for an offence in the same proceedings in which the offence is tried’.  In the present cases, the Committee stated that the authors’ further terms of imprisonment were the result of court orders made 10 and 14 years, respectively, after the authors’ convictions and sentences ‘in respect of predicted future criminal conduct which had its basis in the very offence for which [they] had already served [their] sentences’.  The Committee stated further that these new ‘sentences’ fell within the prohibition against retroactive punishment and subjection to a ‘heavier penalty than was applicable at the time when the criminal offence was committed’, contrary to art 15(1) of the ICCPR.  They concluded that detention pursuant to proceedings which themselves contravene art 15(1) is ‘necessarily arbitrary’ within the meaning of art 9(1).
• The process pursuant to which the court orders for continuing detention were made was designed to be ‘civil in character’ and did not, therefore, ‘meet the due process guarantees required under art 14…for a fair trial in which a penal sentence is imposed’.  Again, detention pursuant to proceedings which themselves contravene art 14 is necessarily arbitrary within the meaning of art 9(1).

Limitations on Rights: The Requirement of ‘Minimal Impairment’

Finally, the Committee stated that in circumstances where a person is preventatively detained because they are ‘feared’ to be a ‘danger to the community…and for the purposes of rehabilitation’, the ‘State Party must demonstrate that rehabilitation could not have been achieved by means less intrusive than continued imprisonment’.

The requirement of any limitation being a minimal impairment is closely connected both with the state’s obligation to avoid arbitrariness under art 9(1) and the ‘continuing obligation under art 10(3)…to adopt meaningful measures for the reformation’ of prisoners.

Relevance to the Victorian Charter

This decision is particularly pertinent to the scope and application of s 21(2) (right to freedom from arbitrary detention), s 26 (right not to be tried or punished more than once) and s 27 (retrospective criminal laws) of the Victorian Charter.

The decision is also apposite to the human rights compatibility of Victoria’s Serious Sex Offenders (Detention and Supervision) Act 2009, which is substantively similar to the NSW and Queensland Acts which were the subject of the Committee’s consideration.  This is particularly so given that the predecessor to the current Act, the Serious Sex Offenders Monitoring Act 2005 (Vic), was held to be incompatible with the Charter by Ross J of the County Court in Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009).

The Committee’s decisions are available at http://tb.ohchr.org/default.aspx.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010)

Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010)

The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, was incompatible with the prohibition against arbitrary detention under art 9(1) of the International Covenant on Civil and Political Rights.

The Committee also opined, without deciding the matter, that the post-sentence detention of Tillman and Fardon may contravene the prohibition against double punishment under art 14(7) and against retroactive punishment under art 15(1).

Facts

Tillman

Kenneth Tillman was convicted of a number of serious sexual offences on 6 March 1998.  He was sentenced to ten years’ imprisonment.  One week prior to his release in April 2007, the Attorney-General of NSW filed an application under the Crimes (Serious Sex Offenders) Act 2006 (NSW) requesting that Tillman be detained for a further five years.  The Supreme Court of NSW granted an interim order in April 2007 and then, on 18 June 2007, a further order that Tillman be detained in prison for a further year.

Fardon

On 30 June 1989, Robert Fardon was sentenced to 14 years’ imprisonment for a number of serious sexual offences.  His sentence expired on 30 June 2003.

On 6 June 2003, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force and, on 17 June 2003, the Attorney-General of Queensland filed an application under that Act seeking that Fardon be detained indefinitely.  Pursuant to a series of decisions by the Supreme Court of Queensland, Fardon was subject to a continuing detention order until 4 December 2006, after which he was released and made subject to a conditional supervision order.

Both Tillman and Fardon complained that their post-sentence detention was incompatible with:

• the prohibition against double punishment under art 14(7) of the ICCPR; and
• the prohibition against arbitrary detention under art 9(1) of the ICCPR.

Decision

Summary

In both cases, the Committee held that the facts disclosed a violation of art 9(1), in light of which they did not consider it necessary to consider the complaints separately under art 14(7).

In accordance with art 2(3) of the ICCPR, the Committee held that Australia is under an obligation to provide Tillman and Fardon with an effective remedy for this breach, including the termination of their detention.

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order that a complaint is deemed admissible to the Committee.  Rejecting Australia’s assertion that Tillman had not exhausted domestic remedies because he did not seek a writ of habeas corpus or seek leave to appeal to the High Court (unlike Fardon, who sought and was granted leave but was unsuccessful in the event), the Committee stated:

For the purposes of the Optional Protocol, an author is not required to exhaust domestic remedies if the jurisprudence of the highest domestic tribunal has decided the matter at issue, thereby eliminating any prospect of success of an appeal to the domestic courts.

Article 9(1): Prohibition of Arbitrary Detention

In both cases, the Committee concluded that the post-sentence detention of the authors was incompatible with art 9(1) for a number of reasons, including that:

• The authors had already served their terms of imprisonment yet continued to be detained.  The Committee stated that this ‘detention amounted, in substance, to a fresh term of imprisonment which…is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law’.
• Imprisonment is penal in character and ‘can only be imposed pursuant to a conviction for an offence in the same proceedings in which the offence is tried’.  In the present cases, the Committee stated that the authors’ further terms of imprisonment were the result of court orders made 10 and 14 years, respectively, after the authors’ convictions and sentences ‘in respect of predicted future criminal conduct which had its basis in the very offence for which [they] had already served [their] sentences’.  The Committee stated further that these new ‘sentences’ fell within the prohibition against retroactive punishment and subjection to a ‘heavier penalty than was applicable at the time when the criminal offence was committed’, contrary to art 15(1) of the ICCPR.  They concluded that detention pursuant to proceedings which themselves contravene art 15(1) is ‘necessarily arbitrary’ within the meaning of art 9(1).
• The process pursuant to which the court orders for continuing detention were made was designed to be ‘civil in character’ and did not, therefore, ‘meet the due process guarantees required under art 14…for a fair trial in which a penal sentence is imposed’.  Again, detention pursuant to proceedings which themselves contravene art 14 is necessarily arbitrary within the meaning of art 9(1).

Limitations on Rights: The Requirement of ‘Minimal Impairment’

Finally, the Committee stated that in circumstances where a person is preventatively detained because they are ‘feared’ to be a ‘danger to the community…and for the purposes of rehabilitation’, the ‘State Party must demonstrate that rehabilitation could not have been achieved by means less intrusive than continued imprisonment’.

The requirement of any limitation being a minimal impairment is closely connected both with the state’s obligation to avoid arbitrariness under art 9(1) and the ‘continuing obligation under art 10(3)…to adopt meaningful measures for the reformation’ of prisoners.

Relevance to the Victorian Charter

This decision is particularly pertinent to the scope and application of s 21(2) (right to freedom from arbitrary detention), s 26 (right not to be tried or punished more than once) and s 27 (retrospective criminal laws) of the Victorian Charter.

The decision is also apposite to the human rights compatibility of Victoria’s Serious Sex Offenders (Detention and Supervision) Act 2009, which is substantively similar to the NSW and Queensland Acts which were the subject of the Committee’s consideration.  This is particularly so given that the predecessor to the current Act, the Serious Sex Offenders Monitoring Act 2005 (Vic), was held to be incompatible with the Charter by Ross J of the County Court in Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009).

The Committee’s decisions are available at http://tb.ohchr.org/default.aspx.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

MAK and RK v United Kingdom [2010] ECHR 363 (23 March 2010)

The European Court of Human Rights has held that restrictive hospital visiting conditions imposed on a father, the first applicant, suspected of abusing his daughter, the second applicant, breached the right to private and family life under art 8 of the European Convention on Human Rights.  Conducting a blood test and taking photographs of the child without first obtaining parental consent were also considered a violation of art 8.

Considering art 13, the Court held that the father’s right to an effective domestic remedy was violated as there was no domestic redress available to him against the local authority.  The withdrawal of legal aid from the child, however, was not considered to breach art 13. 

Facts

In 1997 the child, then aged 8, first visited a doctor after the father and his wife noticed bruising on her legs.  No medical abnormality was identified at that appointment.  Five months later, after her swimming teacher raised similar concerns about bruising, the parents returned to the doctor who referred the child to a paediatrician.  Shortly before the appointment with the paediatrician, the child had complained to her mother that she had hurt herself in the genital area while riding her bike. 

The paediatrician concluded that the bruising was not symptomatic of a skin disease and admitted the child to hospital for further tests.  At the hospital, the father (who had to leave to go to work) instructed the paediatrician that no testing should be conducted until the child’s mother arrived and provided consent.  Prior to her mother arriving, the child was nonetheless given a blood test, photographs were taken of her legs and a notification of suspected abuse by the father was made to the local authority. 

When the father returned later that day to visit the child, he was told by a nurse that there were orders that he not be allowed to see her.  The following day, hospital staff were correctly informed that they could not prevent the father from visiting the child and he was allowed to see her, albeit under supervision.  Later that day the wife informed the paediatrician of the child’s complaint about her injury while riding her bike. 

A couple of days later, the mother noticed bruising on the child’s hands so she arranged for the child to see a dermatologist. A rare skin disease was diagnosed and the child was discharged from hospital.  The paediatrician subsequently wrote to confirm that she now considered there was insufficient evidence to suggest the child had been abused and, as such, the father could no longer be implicated in that suggestion. 

The applicants issued domestic proceedings against the local authority and hospital trust, alleging negligence.  The County Court found that the local authority did not owe the father a duty of care.  This was confirmed on appeal. The County Court also found that the hospital, but not the local authority, had owed the child a duty of care.  Despite having been granted leave to appeal this decision, the child’s legal aid certificate was withdrawn because the likely costs were disproportionate to the value of the claim. 

Decision

Art 3 (prohibition on torture, inhuman or degrading treatment or punishment)

Before the European Court, the father claimed that the accusation that he abused the child had caused him to suffer distress and humiliation, which was a breach of art 3 of the Convention.  The Court rejected this argument, observing that the authorities had an obligation to take measures to protect children from abuse and it would be counter-productive to the effective protection of children’s rights to hold authorities liable whenever a mistake was made, whether or not the error was reasonable.  There was no special element in this case that took the level of distress to the father beyond that which inevitably flowed from the execution by the authority of its duty. 

Art 8 (right to private and family life)

The Government accepted that the initial decision to prevent the father from visiting the child in hospital constituted an interference with both applicants’ right to family life.  However the applicants also alleged that the visiting restrictions imposed on the father subsequently, and the hospital’s failure to obtain parental consent for the blood test and photographs of the child, violated art 8 of the Convention. 

The Court determined that the interference caused by requiring the father’s remaining visits to be supervised was clearly imposed in pursuance of the legitimate aim of protecting the child.  Considering whether the interference could be regarded as ‘necessary in a democratic society’ for the purposes of art 8, the Court emphasised that ‘mistaken judgments or assessments by professionals do not per se render childcare measures incompatible’ with art 8 and it was satisfied there were sufficient reasons for the authorities to suspect abuse.  However it considered that the authorities’ failure to consult a dermatologist as a matter of urgency was not proportionate to, and had undermined, the legitimate aim of protecting the child.  Further, there was no justification for conducting a blood test and taking the photographs of the child without parental consent.  Accordingly, there was a violation of the applicants’ rights under art 8. 

Art 6 (right to a fair and public hearing) 

The child alleged that the withdrawal of legal aid had violated her rights under art 6 § 1 of the Convention.  The critical question for the Court was whether the Government’s restrictions on her right to access a court were legitimate and proportionate.  The Court accepted the Government’s justification for deciding to withdraw funding.  It was relevant to its decision that there were avenues to appeal the decision to withdraw legal aid. 

Art 13 (right to an effective domestic remedy)

As there was no domestic redress available to the father against the local authority at the relevant time (the Human Rights Act 1998 (UK) was not yet in force) the Court accepted there had been a violation of his human rights under art 13 of the Convention.  However the Court did not accept that the withdrawal of legal aid from the child was a breach of art 13 as she was still able to pursue her claim, albeit without legal aid. 

Relevance to the Victorian Charter

This decision may inform the Court’s interpretation of s 13 (respect for a person’s private life) and s 17 (protection of families and children) of the Victorian Charter.  In particular, the analysis of whether the interference, although considered legitimate, was ‘necessary in a democratic society’ provides useful guidance for the application of s 7 (reasonable limitations) of the Charter to the rights enshrined in these sections. 

While authorities will not be held responsible for erroneously implementing protective measures for suspected incidents of child abuse, this case emphasises that such protective measures must not interfere with private and family life beyond what is considered necessary. 

The decision is available at www.bailii.org/eu/cases/ECHR/2010/363.html. 

Carly Dunn is a lawyer and Abigail Gill is a Senior Associate with Allens Arthur Robinson