Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011)

Summary

The Grand Chamber of the European Court of Human Rights recently considered the admissibility of statements made by an absent witness and the application of the ‘sole or decisive test’ in the context of the right to a fair trial. It held by majority that convictions based solely or decisively on such statements will not automatically constitute a breach of the right to a fair trial contained in article 6 of the European Convention on Human Rights. The majority considered that in such cases, the appropriate inquiry is whether sufficient counterbalancing factors are in place to ensure that the overall fairness of the trial is not unacceptably prejudiced. Such factors may include whether the accused is able to test the evidence of an absent witness by means other than cross-examination and other measures, which permit a fair and proper assessment of the reliability of that evidence (such as whether the evidence is corroborated).

Facts

This decision considered two applications, which arose out of hearsay evidence admitted pursuant to legislative exceptions to the hearsay rule, in each applicant’s trial in the UK Crown Court. Both applicants’ convictions had been upheld on appeal to the UK Court of Appeal.

Mr Al-Khawaja had been convicted of indecently assaulting two patients while they were under hypnosis. One complainant was unable to give evidence in person because she died before trial, but her statement to police was read to the jury. Two friends whom she had told of the alleged assault also gave evidence. The Trial Judge found, and the Grand Chamber accepted, that her evidence was decisive in respect of the count alleged.

Mr Tahery had been convicted of wounding with intent following the stabbing of another man during a fight. Uncorroborated evidence of a witness (T) was given by way of statement because T was too frightened to give oral evidence. The Grand Chamber found this statement to be the decisive, if not the sole, evidence against Mr Tahery.

Decision

The Grand Chamber unanimously found a breach of article 6 in the case of Mr Tahery but, by majority, rejected Mr Al-Khawaja’s application. The relationship between the right to a fair and public hearing (article 6(1)) and the principle that everyone charged with a criminal offence has, as a minimum right, the right to examine or have examined witnesses against him (article 6(3)(d)), in the European Convention was of critical importance.

In January 2009, a Chamber of the European Court of Human Rights had considered these applications and held that article 6(3)(d) was an express guarantee, which could not be considered merely as a matter to be taken into account in assessing the fairness of a trial. It therefore found a violation of article 6(1), read in conjunction with article 6(3)(d), in respect of each application. In R v Horncastle [2009] UKSC 14 (a later decision discussed by the Grand Chamber), the UK Supreme Court declined to follow the Chamber’s approach and rejected any principle on the basis of which a conviction based solely or decisively on evidence provided by an absent or anonymous witness must necessarily be set aside.

The decision of the Grand Chamber explained that the guarantees in article 6(3)(d) are specific aspects of the right to a fair hearing in article 6(1), and that the primary concern under article 6(1) is to “evaluate the overall fairness of the criminal proceedings”. Although it reaffirmed the rationale of the ‘sole or decisive test’, the Grand Chamber considered that the admission of hearsay evidence, which is the sole or decisive evidence against a defendant does not constitute an ‘automatic’ breach of article 6. In determining the question of fairness, the rules of evidence of the legal system concerned must be taken into account. The Grand Chamber noted that these legislative schemes are designed as protective mechanisms in respect of the hearsay evidence of absent witnesses. While the relevant UK legislative provisions were found to be “in principle, strong safeguards designed to ensure fairness”, the Grand Chamber looked beyond these provisions to ensure that the evidence admitted pursuant to them did not compromise the fairness of the trials. In respect of each application, the Grand Chamber considered:

• whether it was necessary to admit the witness statement;
• whether the untested evidence was the sole or decisive basis of conviction; and
• whether there were sufficient counterbalancing factors to ensure that each trial, judged as a whole, was fair.

In Al-Khawaja’s case, the Trial Judge made clear that the statement was decisive evidence in respect of the relevant charge. The death of the witness made it plainly necessary to admit the statement if her evidence was to be received. The statement was recorded in proper form, corroborative evidence was given at trial by two of the complainant’s friends (with only minor inconsistencies), and there were strong similarities between the accounts of the assaults on the two complainants, between whom there was no evidence of any collusion. In that context, the majority found that there was no breach of article 6.

In Tahery’s case, T was the only witness who had claimed to see the stabbing, his eyewitness statement was uncorroborated and the statement had been made two days after the event. The Grand Chamber considered that the statement constituted at least the decisive, if not the sole, evidence against Tahery. No witness, when questioned at the scene, claimed to have seen Tahery stab the complainant. The Grand Chamber considered that neither the ability of Tahery to challenge the evidence by giving evidence himself or calling other witnesses, nor the warning by the Trial Judge to the jury to approach T’s evidence with care, was sufficient to “counterbalance the handicap under which the defence laboured”. Even if Tahery had given evidence, he was unable to test the truthfulness and reliability of the evidence of the sole witness who was willing or able to say what he had seen. At best, the other evidence only provided indirect support for T’s evidence. Examining the fairness of the proceedings as a whole, the Grand Chamber concluded that there were not sufficient counterbalancing factors to prevent a breach of article 6.

The Court ordered that the United Kingdom pay Mr Tahery EUR 6000 as compensation for distress and anxiety, and EUR 12000 for his legal costs.

Relevance to the Victorian Charter

Section 25(2)(g) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) expressly provides that the ‘minimum guarantee’ to examine or have examined witnesses against an accused is subject to contrary provision by law. On that basis, the exception to the hearsay rule in criminal proceedings where the maker of a statement is not available (provided by section 65 of the Evidence Act 2008 (Vic) and referred to by the Grand Chamber in its comparative analysis), would appear to be clearly inconsistent with any ‘automatic’ application of the sole or decisive test. However, the analytical approach of the majority may provide some guidance in approaching the application of the exclusionary provisions in Pt 3.11 of the Evidence Act in the context of section 25 of the Charter.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/2127.html

Ben Mee is a lawyer at Allens Arthur Robinson

Pearson v United Kingdom [2011] ECHR 2319 (13 December 2011)

Summary

The European Court of Human Rights has clarified the scope of a State party’s obligation to investigate a death in circumstances involving a potential breach of the right to life.

In Pearson v United Kingdom [2011] ECHR 2319, the Court clarified that, where government employees or agents are implicated in a death, the State is bound to adequately investigate the death to establish the relevant facts and to hold persons accountable, as appropriate. Those obligations may be met by, or shared between, several different processes and authorities. There is no requirement for a single body, such as a coroner’s court, to deal with all aspects of an investigation.

Facts

Circumstances leading to the death

The case was brought by Jean Pearson, the mother of Kelly Pearson. Kelly had a history of mental health problems associated with alcohol and substance abuse. She died from a self-administered drug overdose aged 30.

Shortly before her death, in November 1999, Kelly was arrested for being drunk and disorderly in West Yorkshire. The police searched their database which revealed a warrant against Kelly that was erroneously described in the database as ‘outstanding’ (the warrant had actually been discharged several weeks earlier). Because of this mistake, Kelly was transferred from West Yorkshire, where she lived with her mother, to London. The mistake came to light when Kelly presented at a London magistrates’ court.

After realising the error, Kelly was released from custody and a probation officer gave her enough money for a bus fare back to West Yorkshire, although Kelly made the decision to remain in London.

The following day, while still in London, Kelly sought help from a mental health worker and a general practitioner, whom she knew. Kelly refused to take the prescription medication given to her by the GP and left the medical centre in an agitated state. Approximately two hours later, Kelly collapsed in the street. She died in hospital a short while later.

Investigations following the death

A coronial inquest was held in 2002. Although the coroner heard a substantial amount of evidence about Kelly’s background and the events leading up to her death, the scope of the inquest was confined to matters directly causative of her death. The Coroner determined that Kelly died from ‘methadone, diazepam and alcohol poisoning’.

At the inquest stage, the Applicant asked the Coroner to deal with a range of matters, such as:  Who or what was responsible for the mistake in the police database? Why there were no safeguards to prevent such errors? Who was responsible for securing basic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported hundreds of miles from her home? The Coroner maintained that it was not his role to apportion blame and did not allow the inquest to deal with these broad issues. (Note: Had Kelly died after the commencement of the UK’s Human Rights Act 1998 on October 2000, then the scope of the inquest would have been broader.)

In addition to the coronial inquest, a number of other agencies also investigated and reported on the death. The West Yorkshire Probation Board, for example, produced a report. The London Probation Authority also investigated and reported on the complaint insofar as it related to the London area. The Prisons and Probation Ombudsman also conducted an investigation following an appeal by the Applicant.

The Applicant also brought civil proceedings against a number of parties involved, including the Greater London Magistrates Court Authority, which settled.

Complaint to the European Court

The Applicant submitted that, because of its narrow scope, the coronial inquest did not satisfy the State’s investigative obligations under article 2 (Right to life) of the European Convention. The Applicant further argued that the State was obliged to investigate the death in a unified way, rather than through a range of disparate legal process.

Decision

The Court reiterated the well-established principle that where lives are lost in circumstances that potentially engage the responsibility of the State, the State is under an obligation to adequately investigate those deaths. The obligation arises under the right to life.

Such an investigation must contain two key elements: fact-finding and accountability.  Specifically, the Court said:

The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability… The form of investigation required to achieve these purposes will vary according to the circumstances of the particular case.

The Court clarified that the State was not required to meet each of these requirements through a single, unified investigation procedure. It said:

It cannot be said, as the applicant suggested, that there should be one unified procedure satisfying all requirements: the aims of fact-finding and accountability may be carried out by or shared between several authorities, as long as the various procedures provide for the necessary safeguards in an accessible and effective manner.

The Court found that the coronial inquest into Kelly’s death – although limited in scope – was sufficient to satisfy the State’s fact-finding obligation. This was because the coronial inquest involved an independent tribunal subjecting the relevant facts to a thorough review and exposing those facts to public scrutiny. Moreover, the Applicant was legally represented.

The Court considered that although the coronial inquest process did not deal with accountability, the Applicant’s ability to bring a civil claim in negligence against those people who she held responsible, when coupled with the possibility of disciplinary measures against government employees, was satisfactory to meet the State’s obligations under this part of the test.

For the reasons set out above, the Court declared the Applicant’s claim inadmissible.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/2319.html

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers

Schwabe and M.G. v Germany – 8080/08 [2011] ECHR 1986 (1 December 2011)

Summary

The European Court of Human Rights has ruled that the detention of two German citizens, who planned to be involved in protests against the 2007 G8 summit, constituted an unlawful breach of the rights to liberty and security of person and freedom of peaceful assembly under the European Convention on Human Rights.

Facts

During 6 – 8 June 2007, Germany hosted the G8 summit for Heads of State and Government in Heiligendamm, in the vicinity of Rostock. In the lead-up to the summit German police held fears about terrorist attacks and property damage by extremists planning to sabotage the summit. Serious riots broke-out during the week prior to the summit. Some 400 police officers were injured and over 1000 rioters were detained.

On the evening of 3 June 2007, the applicants were in the car park of Waldeck Prison, in Rostock, with seven other people when they were approached by police. One of the applicants allegedly resisted an identity check by the police. There was some evidence of a minor scuffle. After ascertaining the applicants’ identities, the police searched their car and found banners bearing the inscriptions “freedom for all prisoners” and “free all now”. The police arrested the applicants on the spot and seized their banners.

In the early hours of 4 June 2007, the applicants were brought before a District Court which ordered their detention until 9 June 2007 in order to prevent the applicants from committing crimes.

The applicants’ numerous appeals to German courts failed. They remained in detention for some five and a half days, by which time the G8 summit was over. Criminal proceedings against one of the applicants for obstructing the police officers in the course of the identity check were dropped and charges for incitement offences were never laid.

Decision

Liberty and security of person

The Court held that the applicants’ arrest and detention unlawfully breached their rights to liberty and security of person under article 5 of the Convention.

In reaching this conclusion, the Court rejected Germany’s claims that its actions complied with the Convention because the detention was reasonably necessary to prevent the commission of a criminal offence (article 5(1)(c)) and for the purpose of meeting Germany’s obligation to protect its citizens (article 5(1)(b)).

The Court said that article 5(1)(c), which provides a basis for detention “when it is reasonably necessary to prevent his committing an offence”, goes no further than enabling a state to prevent a “concrete and specific offence”. In order to rely on this basis, the state must be able to identify the place, time and victims of the impending offence. Further, the detention must be effected for the purpose of bringing the person before a competent legal authority to respond to criminal allegations.

The Court noted that Germany’s lower courts had failed to consistently identify the offences that the applicants were supposedly about to commit. For example, one lower court found that the applicants had intended to incite others to free prisoners by force at Waldeck Prison, while another lower court said they planned to drive to Rostock and incite the crowd (including violent demonstrators) there. Ambiguity also arose from the language printed on the banners – the applicants claimed it was not intended to incite civilians to release prisoners but was, instead, directed at the authorities. Further, the Court said the detention was not “reasonably necessary” in the circumstances, as it would have been sufficient for the police to seize the banners. For these reasons, the Court held that the detention was not justifiable under article 5(1)(c).

The Court also said that article 5(1)(b), which provides a basis for detention to secure “the fulfillment of any obligation prescribed by law”, is limited to cases where a person is detained in order to compel him or her to fulfill a “real and specific obligation” which he or she has already failed to fulfill. The detention must not be punitive and must cease as soon as the obligation has been fulfilled. Article 5(1)(b) did not justify detention, in this case, because Germany failed to identify any specific legal obligation, such as a particular criminal law, that the applicants had failed to comply with.

Freedom of peaceful assembly

The Court also found that Germany had breached the applicants’ right to freedom of peaceful assembly (article 11) when read in conjunction with their right to freedom of expression (article 10). The breach arose because the detention prevented the applicants from expressing their views together with other demonstrators protesting against the G8 summit.

The Court reiterated that article 11 only extends to a right to peaceful assembly and does not cover demonstrations where the organizers and participants have violent intentions. However, the risk of violent extremists becoming involved in protests does not take away the right. Rather, where this risk exists, the right to freedom of assembly may be limited in manner that is “prescribed by law”, pursued for a legitimate aim (including national security, public safety or the prevention of disorder or crime) and “necessary in a democratic society”. Hence, it becomes a question of appropriately balancing competing rights and freedoms.

In this case, the Court said the applicants’ detention for a number of days was a disproportionate response to the risks. Specifically, the Court noted that “a fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly could not be struck by immediately taking the applicants into detention for several days”.

The Court ordered Germany to pay each applicant EUR 3,000 in damages, plus their legal costs for the breaches.

Relevance to the Victorian Charter

The Victorian Charter of Human Rights and Responsibilities also contains rights to liberty and security of person (s 21), freedom of expression (s 15) and freedom of peaceful assembly and association (s 16) which, although worded differently from the Convention, are based on the same international legal principles.

This case provides useful commentary about what is ‘lawful’ detention and what constitutes a reasonable limitation on the right to freedom of peaceful assembly under international law which may have application to cases under the Charter.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2011/1986.html.

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers

V.C. v Slovakia [2011] ECHR 1888 (8 November 2011)

Summary

In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.

Facts

The applicant, VC, is of Roma ethnic origin, living in North-East Slovakia. Born in 1980, VC finished compulsory schooling in sixth grade and at the time of the case, was unemployed. She speaks the Roma language and a local dialect in her day-to-day activities.

In August 2000, VC gave birth to her second child by Caesarean section at the public Prešov Hospital. During the procedure, the hospital sterilised VC by severing and sealing her fallopian tubes to prevent future fertilisation.

According to the hospital, VC had consented to the procedure after having been informed of the medical risks associated with a subsequent pregnancy. VC’s signature was evident on the consent form (albeit shaky and with her surname split), and the medical records stated that “Patient requests sterilisation” at 10.30 am. The medical records also include “Patient is of Roma origin”.

According to VC however, the hospital’s account is not an accurate and complete statement of events.

VC arrived at Prešov Hospital in labour shortly before 8 am. Previously, her eldest child had been born by Caesarean section due to the small size of her pelvis. This, and post-operative complications from her first pregnancy, led to the medical decision to deliver this child also by Caesarean section. VC submitted that after several hours of being in labour and pain, the Prešov Hospital medical personnel asked her whether she wanted to have more children. VC responded that she did, but was told that if she had another child, either her or the baby would die. According to VC, she began to cry, and convinced that her next pregnancy would be fatal, she responded “do what you want to do”. She was then asked to sign the medical record that stated that she had requested sterilisation. VC did not understand the term ‘sterilisation’, and, being in the last stage of labour, her recognition and cognitive abilities were influenced by labour and pain.

At 11.30 am, VC was put under anaesthetic and the delivery was completed by Caesarean section. The two doctors involved in the delivery then performed a tubal ligation on VC. She awoke from the anaesthetic at 12.20 am.

After the birth, VC alleges that she was put in a hospital room solely for women of Roma ethnic origin, and was prevented from using the same bathrooms as women not of Roma origin.

Since the sterilisation, VC has suffered from serious medical and psychological after effects, including a phantom pregnancy. As a result of her sterilisation, VC has also been ostracised from the Roma community, separating, and ultimately divorcing, from her husband due to her inability to have further children.

Decision

The Court found that Slovakia had breached VC’s right to freedom from torture or inhuman or degrading treatment or punishment under article 3 of the European Convention, which “enshrines one of the most fundamental values of democratic society” (at [100]). In addition, the Court found that Slovakia had breached VC’s right to private and family life under article 8 of the Convention.

VC also submitted that her rights to marry and found a family under article 12, to an effective remedy under article 13, and to freedom from discrimination on the base of race and sex under article 14 of the Convention had been breached. The Court however found that it was not necessary to separately determine whether the facts of the case gave rise to breaches of articles 12 and 14, and that there was no breach of article 13 when taken into consideration with the other breaches.

The Court’s approach to each of these submissions are discussed in turn below.

Article 3

Article 3 of the Convention contains the right to freedom from torture or inhuman or degrading treatment or punishment. In order to engage the operation of this article, the ill-treatment must be of a minimum level of severity, determined by consideration of the circumstances of the case.

The Court referred to precedent which has established that the treatment of a person by a State engages article 3 where it results in bodily harm of a certain degree of severity. Medical necessity is however a logical exception to the operation of article 3 under these circumstances, but must be proven and still follow procedural guarantees and protections. In particular, given the “very essence of the Convention is respect for human dignity [and] freedom”, free, full and informed consent is fundamental to any medical procedures, even where necessary (excluding certain emergency situations).

The Court found that sterilisation resulted in bodily harm to VC of a sufficient severity to engage operation of article 3. In particular, the Court held that:

sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life. It may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established.

VC began her legal action after the release of the report ‘Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” which informed VC that a tubal ligation was not a life-saving surgery, and that full and informed consent was required to perform the procedure.

The Court addressed the difficulties faced by courts when assessing the application of the law to cases of medical necessity, stating (at [110]) that “it is not the Court’s role to review the assessment by medical doctors of the state of health of the applicant’s reproductive organs”. Having referred to a series of international reports on human rights and sterilisation, the Court continued: “however, it is relevant to note that sterilisation is not generally considered as a life-saving surgery … as there was no emergency involving imminent risk of irreparable damage to the applicant’s life or health, and since the applicant was a mentally competent adult patient, her informed consent was a prerequisite to the procedure, even assuming that it was a ‘necessity’ from a medical point of view.”

The Court found that the approach taken by the doctors at Prešov Hospital was incompatible with VC’s human rights; in particular, “such a threat was not imminent as it was likely to materialise only in the event of a future pregnancy and it could also have been prevented by means of alternative, less intrusive methods”.

The Court concluded that there was no indication that there was any unique medical necessity to perform the sterilisation. Regardless of a medical necessity, in the absence of an emergency situation, the Court found that VC had not given free, full and informed consent to her sterilisation as required by international standards under the Convention on Human Rights and Biomedicine, the WHO Declaration on the Promotion of Patients’ Rights in Europe, and CEDAW General Recommendation No. 24.

The Court also made a statement with respect to “paternalistic” decision making by treating medical practitioners, stating that “the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future” (at [113]). While this statement is made in respect of the facts of this case, it provides a useful summary of principle regarding determinations in the “best interests of the patient” by doctors.

Article 8

It was not disputed between the parties that the sterilisation affected VC’s reproductive health status, and had repercussions for her private and family life. VC submitted that Slovakia had failed in its positive obligation under article 8 to ensure that her private life was not interfered with by not securing the rights guaranteed under article 8 in the Slovakian legal system. In particular, Slovakia was under a positive obligation to ensure that the reproductive health of women of Roma origin was protected through legal safeguards (at [145]).

Documents were tended before the Court that included concerns from the Council of Europe Commissioner of Human Rights that the Roma population of eastern Slovakia was at particular risk of improper sterilisations. These documents included recommendations that more adequate safeguards be developed to protect Roma women from inappropriate sterilisations and discrimination. The identification of VC’s ethnic origin in her medical reports, and testimony from the treating doctors that stated that VC’s case was “the same as in other similar cases”, was deemed by the Court to demonstrate the medical staff’s negative opinion of Roma patients, rather than the basis of implementing more specialised care.

Whilst Slovakia had taken steps to amend its healthcare legislation to ensure fully informed consent was obtained in sterilisation procedures, these amendments were subsequent to the facts of VC’s case. The Court found that VC’s case in fact demonstrated that the laws at that time were not sufficient. As a result, the absence of the relevant legal safeguards to protect the reproductive health of VC as a Roma woman resulted in a failure by Slovakia to comply with its positive obligation to secure protections to enable her to enjoy her right to respect for private and family life.

Article 12

Similar to article 14 below, the Court found that it was not necessary to determine article 12 separately in light of findings under article 8 of the Convention. Article 12 expresses the right to marry and found a family. VC submitted that her right to found a family was breached by the sterilisation. The Court found that the sterilisation did have a serious impact on her family life, however as this was considered and found for under examination of article 8, the Court held that it was absolved from separately determining a breach under article 12.

Article 13

VC submitted that she was not provided with an effective remedy in respect of her complaints relating to articles 3, 8 and 12 of the Convention. Article 13 provides that where an individual’s rights under the Convention have been violated, they shall have an effective remedy from the State. The Court found no breach of this article as VC had had two opportunities for her case to be reviewed at the domestic level. The Court reiterated that an “effective” remedy need not be a “successful” one (at [165-166]).

Article 14

Article 14 prevents discrimination against a person on the basis of, inter alia, race and gender. VC submitted to the Court that her ethnic origin had played a decisive role in the Prešov Hospital medical personnel’s decision to sterilise her. Referencing the Convention on the Elimination of all forms of Discrimination Against Women, VC also submitted that the differentiation of level of medical care between men and women in the health services was a breach of the prohibition of discrimination on the grounds of sex, and the sterilisation performed on her without her informed consent amounted to a form of violence against women. The Court found that there was not sufficiently strong evidence to prove VC’s submissions under this article, but rather than find no breach, the Court found that it was more appropriate to deal with these matters as part of the failure of the State to perform its obligations in respect of article 8.

It was under this article 14 that the dissenting judge, Mijovic J, differed from the majority. Mijovic J held that a breach of article 14 should have been considered separately, and having done so, found that article 14 had indeed been breached by Slovakia.  Mijovic J found that the “special attention” granted to VC as a Roma woman was to sterilise her, and in a short, but sharp, dissenting judgement on article 14, held that this case demonstrated the “relics of a long-standing attitude towards the Roma minority in Slovakia” which “represents the strongest form of discrimination”.

The case is available at: http://www.bailii.org/eu/cases/ECHR/2011/1888.html

Alexandra Phelan is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

L.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011)

Summary

The UN Committee on the Elimination of Discrimination against Women has found that Peru, by denying a minor who had been sexually abused access to therapeutic abortion and delaying necessary spinal surgery that contributed to her paralysis, violated articles 2(c), 2(f), 3, 5 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women in conjunction with article 1.

Facts

L.C. was 13 years of age when she learned that she pregnant – the result of being sexually abused repeatedly by a 34 year-old man. After learning that she was pregnant, L.C. became depressed and attempted suicide by jumping from a neighbourhood building.  She survived the fall and was eventually taken to a public hospital, where it was determined that she was at risk of permanent disability and required emergency spinal surgery. Despite the serious risk to L.C., her doctors postponed the surgery because she was pregnant. L.C. requested a termination of pregnancy in accordance with article 119 of Peru’s Penal Code, which permits abortion only in cases where it is necessary to “save the life of the mother or to avoid serious and permanent harm to her health”. Hospital officials refused a request to carry out a termination because they considered that L.C.’s life was not in danger. Subsequent appeals to have the termination performed were unsuccessful. L.C. later miscarried. Doctors performed the spinal surgery on L.C. only after she miscarried and almost three and a half months after they determined that the surgery was necessary. L.C. is now paralyzed from the neck down and has regained only partial movement in her hands.

The victim’s mother, T.P.F., subsequently submitted a communication to the CEDAW Committee. She alleged that the doctors’ refusal to perform a therapeutic abortion and the delayed scheduling of spinal surgery violated L.C.’s rights to non-discrimination, to health, to an effective remedy and to decide on the number and spacing of her children and the freedom from wrongful gender stereotyping, in breach of articles 1, 2(c), 2(f), 3, 5, 12 and 16(1)(e) of CEDAW. T.P.F. also alleged violations of the right to life and the freedom from cruel, inhuman and degrading treatment. The alleged violations, T.P.F. submitted, were aggravated by L.C.’s status as a minor.

Decision

The Committee determined that Peru, through the actions of medical staff at a public hospital, had violated articles 2(c), 2(f), 3, 5 and 12 of CEDAW, read in conjunction with article 1. The Committee declined to rule on whether or not Peru had also violated article 16(1)(e).

Right to health (article 12)

The Committee determined that Peru had failed to ensure L.C. could access essential health care services, as required by article 12 of CEDAW. It explained that “owing to her condition as a pregnant woman, L.C. did not have access to an effective and accessible procedure allowing her to establish her entitlement to the medical services that her physical and mental condition required. … This is even more serious considering that she was a minor and a victim of sexual abuse, as a result of which she attempted suicide. The suicide attempt is a demonstration of the amount of mental suffering she had experienced”.

Freedom from wrongful gender stereotyping (article 5)

The Committee found that Peru had engaged in wrongful gender stereotyping, in violation of article 5 of CEDAW. In the Committee’s expert view, the decision of medical staff to delay the spinal surgery was based on the prescriptive sex-role stereotype that women should be mothers. The Committee reasoned that reliance on this stereotype had the effect of prioritising protection of the foetus over the life, health and dignity of L.C., and ultimately contributed to her becoming a paraplegic.

Right to an effective remedy and effective protection against discrimination (article 2)

The Committee determined that there was no legal remedy available in Peru capable of protecting L.C.’s right to appropriate medical care. It also noted the absence of a legal framework governing access to therapeutic abortion and determined that this had resulted “in a situation where each hospital determines arbitrarily, inter alia, what requirements are necessary [to establish eligibility for abortion], the procedure to be followed, the time frame for a decision and the importance to be placed on the views of the mother”.

The Committee concluded that, since Peru had legalised abortion in certain circumstances, it was required under CEDAW to “establish an appropriate legal framework that allows women to exercise their right to [abortion] under conditions that guarantee the necessary legal security, both for those who have recourse to abortion and for the health professionals that must perform it”. The Committee stated that the framework must: include a mechanism for rapid decision-making; ensure that the opinion of the woman or girl is a relevant factor that is taken into account in determining eligibility; require well-founded decisions; and establish a right to appeal. The Committee determined that L.C. had been denied access to an effective remedy and effective protection against discrimination, in violation of article 2(c) and 2(f) of CEDAW, because she was not able to access a procedure for requesting a therapeutic abortion that met these criteria.

The decision can be found online at: http://www2.ohchr.org/english/law/docs/CEDAW-C-50-D-22-2009_en.pdf.

Simone Cusack is Senior Policy & Research Officer in the Sex Discrimination Unit at the Australian Human Rights Commission

S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011)

Summary

The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm does not breach the European Convention on Human Rights.

This decision reverses an earlier finding that Austria’s Artificial Procreation Act breached the applicants’ rights to private and family life (article 8) and non- discrimination (article 14) under the Convention.

The decision focuses on state parties’ discretion when it comes to balance competing rights and interests, referred to as the “margin of appreciation”. Taking into account all the circumstances, the Court granted Austria a wide margin of appreciation in this instance.

Facts

The applicants were two married, heterosexual couples who, for biological reasons, were unable to conceive naturally. Both couples required access to IVF treatment. Additionally, the first and second applicants needed access to donated sperm, while the second and third applicants needed donated ova. Both couples were prohibited by the Act from accessing the particular treatment they sought.

Relevantly, there is no universal agreement among member states about where to draw the line in this complex and sensitive area of the law. Regulation of reproductive treatments varies from country to country. In Austria, sperm donation is permitted for the purposes of artificial insemination only, but not IVF. Many other European countries that allow sperm donation do not distinguish between its use in artificial insemination and IVF treatment. Italy, Lithuania and Turkey prohibit sperm donation altogether. Croatia, Germany, Norway and Switzerland, meanwhile, permit sperm donation but prohibit ova donation.

Germany and Italy intervened in these proceedings in support of Austria’s position.

Discussion

The applicants claimed that Austria’s restrictions on IVF interfered with their rights to procreate and found a family without discrimination.

The applicants also argued that decisions about reproduction “concerned the most intimate sphere of their private life and therefore the legislature should show particular restraint in regulating these matters”. They submitted, therefore, that Austria’s “margin of appreciation” should be narrowly conceived.

The Austrian government conceded that article 8 of the Convention was relevant in the circumstances in the case. In other words, it agreed that “the private life aspect within the meaning of Article 8.1 of the Convention also covered the desire of couples or life companions to have children as on of the essential forms of expression of their personality as human beings”.

While acknowledging that the Act limited the applicant’s rights, Austria submitted that the limitation was lawful, legitimate and necessary, bearing in mind the competing rights and interests at stake and the particular sensitivities surrounding reproductive treatments.

Specifically, Austria raised concerns about expanding access to IVF on the bases that:

• egg donation might lead to the “exploitation and humiliation” of women, particularly economically disadvantaged women by creating a marketplace for ova;
• it wanted to avoid circumstances where a child could claim to have two biological mothers (the egg donor and the woman who carried the embryo), and
• broadening access to IVF may open the gateway to lead to selective reproduction and raised “essential questions regarding the health of children…general ethics and moral values of society”.

The applicants also argued that many of these concerns relied on by Austria could be overcome by enacting supplementary legislation, such as laws prohibiting the buying or selling of ova (which already exist in Austria) and laws clarifying maternity. Further, the applicants said the Act was “illogical and inconsistent” because it permitted IVF and the use of sperm donors, but prohibited medical treatment which involved combining the two.

Decision

The decision focuses on the issue of Austria’s margin of appreciation. In other words, was the limitation on the applicant’s human rights a legitimate exercise of Austria’s discretion to balance competing rights and interests? The majority said the key issue was whether “in striking the balance at the point at which it did, the Austrian legislature exceeded the margin of appreciation afforded to it under the Article,” and not whether Austria might have reached a different (arguably fairer) solution.

On the one hand, the majority said that where a particularly important aspect of an individual’s existence or identity is at stake – as in this case – the margin allowed to the country will normally be restricted.

On the other hand, the majority said where there is no consensus among member states of the Council of Europe about the relative importance of the interests at stake, or the best means of protecting those interests, the margin afforded to each country will be wider, particularly if the case raises sensitive moral or ethical issues. Although the majority referred to an “emerging consensus” among European countries in favour of IVF using donated sperm or ova, it found that it did not significantly narrow Austria’s discretion, as the “emerging consensus” was not yet based on settled or long-standing principles.

Ultimately, the Court accepted that Austria’s conduct did not exceed its margin of appreciation, bearing in mind that the complexities and sensitivities of the issues. Therefore, the Court held that Austria had not breached the Convention.

In concluding, the majority noted the rapid change and dynamism in this area of the law, which leaves the door open to the potential for a different decision in the future.

The case can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1878.html

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers

Mandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011)

Summary

In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic overcrowding, can amount to inhuman and degrading treatment in breach of article 3 of the European Convention of Human Rights. If a prison does not meet certain minimum standards, the threshold of severity necessary to amount to a breach of article 3 may be crossed even in the absence of a positive intention to humiliate or debase prisoners.

Facts

Mr Mandic, a Slovenian national, and Mr Jovic, a Serbian national (the applicants), were detained in the remand section of Ljubljana Prison in Slovenia for approximately seven months in 2009-2010 pending trial. They occupied a cell measuring 16.28 square metres together with four other inmates. The cell had no artificial ventilation, though it did have four windows which the prisoners were free to open and close. The average daily temperature in the second half of July and August of 2009 was approximately 28 degrees celcius.

The cell was equipped with a sanitary annex, separated by floor-to-ceiling walls and a door with a functioning artificial ventilation system. Partitioned showers were available for daily use on the same floor as the cell.

The cells were locked throughout the day in both the remand and the closed section of the prison and the applicants were only able to leave their cell for scheduled activities (such as visits or exercising) for an average of 2.5 hours per day. They were able to use the outside yard, which was on average used by no less than 30 prisoners at a time, for two hours a day and also had access to a recreation room for a couple of hours a week.

The occupancy of the Ljubljana Prison twice exceeded its official capacity of 128 prisoners during the period of the applicants’ detention, with 261 and 245 prisoners held in 2009 and 2010 respectively. The effects of overcrowding at this prison on inmates, particularly in summer, had previously given rise to the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommending that efforts be made to reduce cell occupancy to a maximum of four prisoners per 18 square metre cell and subsequently criticising the lack of progress on this front. The Slovenian Human Rights Ombudsman had also expressed concern about the overcrowding and noted in a 2007 report that “the living conditions, as observed by us during the summer, were inhuman”.

The applicants complained that the conditions of their detention amounted to a violation of articles 3 and 8, and that they had no effective remedy for these violations as required by article 13. In particular, they complained of severe overcrowding, inadequate ventilation, poor sanitary conditions, excessive restrictions on out-of-cell time, high temperatures in the cell, inadequate health care and psychological assistance and exposure to violence from other inmates due to insufficient security.

Decision

Article 3

The Court noted that “severe lack of space in a prison cell” was a significant factor in determining whether detention conditions were degrading within the meaning of article 3. It observed that the applicants had been held in a cell for several months in which the personal space available to each of them was 2.7 square metres (and even less when furniture was taken into account), holding that “this state of affairs in itself raised an issue under Article 3”.

The Court considered that the applicants’ situation was exacerbated by confinement to their cell day and night, save for two hours of daily exercise in the outside yard and an additional two hours per week in the recreation room. The Court took further note of the applicants’ complaints regarding the high temperatures in the cells, as substantiated by reports by the Slovenian Human Rights Ombudsman. The Court accepted that the sanitary conditions may have been affected by the fact that the facilities were overcrowded, but did not find on the basis of the material before it that the cleanliness of the relevant areas of the prison was inadequate.

Significantly, in the absence of any indication that there was a positive intention to humiliate or debase the applicants, the Court ultimately concluded that:

…having regard to the fact that for the most part of their detention they had less than 3 square metres of personal space inside their cell for almost the entire day and night, the Court considers that the distress and hardship endured by the applicants exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 and therefore amounted to degrading treatment.

This followed from the principle articulated at paragraph [72] of the judgment that:

…although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

Article 8

The applicants relied on restrictions on visits and telephone calls to support a claim that there was a violation of the right to private life protected by Article 8. The Court rejected this claim as manifestly ill-founded as these restrictions were provided for in the relevant legislation, and were not unreasonable restrictions to “uphold the prison regime”. Furthermore, there was no evidence or concrete information submitted to indicate the applicants were unable to use the facilities in accordance with the law.

Article 13

The applicants complained that, owing to the systemic nature of the inadequate prison conditions, they did not have any effective remedy at their disposal as regards their complaints under articles 3 and 8.

The Slovenian Government asserted that there were several remedies to which the applicants could have resorted. The Court found that none of these could be regarded as constituting an effective remedy. The transfer of a remand prisoner to another prison or the transfer of a convicted prisoner under criminal legislation, for example, were inadequate because they could only have been requested by the prison governor.  Moreover, the authorities were aware of the overcrowding and presumably would have ordered the applicants’ transfer if it was possible to do so. The Court also found that the other remedies proposed by the Government – namely, the institution of civil proceedings to obtain compensation, a petition to the Human Rights Ombudsman or an appeal to the Constitutional Court – were not sufficiently certain remedies in respect of inadequate prison conditions to be considered effective remedies.

Relief

Slovenia was ordered to pay the applicants 8,000 euros each in respect of non-pecuniary damage and 2,000 euros jointly in respect of costs and expenses. Further, the Court underlined the need for the Slovenian government to take steps to reduce the number of prisoners in the prison in order to prevent future violations of article 3 even though it could not conclude there was a structural problem consisting of a practice incompatible with the Convention nationwide in Slovenia.

Relevance to the Victorian Charter

Section 10 of the Charter provides protection from torture and cruel, inhuman or degrading treatment on similar terms to article 3 of the Convention. Furthermore, s 22(1) of the Charter provides that “all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”. This decision may usefully inform the interpretation of these provisions of the Charter. The reiteration in this case that the State has positive obligations to ensure that certain minimum standards are met in detention facilities is significant in light of public authorities being caught under the Charter. This is particularly interesting in the context of the partial privatisation of the prison system in Victoria.

Rebecca James is a lawyer and Pro Bono Coordinator with Allens Arthur Robinson

Bah v United Kingdom [2011] ECHR 1448 (27 September 2011)

Summary

The European Court of Human Rights has held that a person’s immigration status is a relevant ground of discrimination under Article 14 of the European Convention of Human Rights. However, as a person’s immigration status involves an element of choice, the ECHR held that the justification needed for differential treatment on this basis need not be as weighty as where differential treatment is based on an inherent characteristic such as sex or nationality.

The ECHR also held that the Housing Act 1996 (UK) pursued the legitimate aim of allocating limited social housing resources fairly between applicants, and that the UK was justified in differentiating between persons seeking priority need of social housing based on whether or not a person’s immigration status prevented them from having recourse to public funds.

Facts

The applicant, Husenatu Bah, was a Sierra Leonean national who sought asylum in the UK. Although her asylum claim was rejected, she was granted indefinite leave to remain in the country. Her son later arrived in the UK subject to immigration control, on the condition that he must not have recourse to public funds. As the applicant’s landlord was unwilling to accommodate her son, she applied to Southwark Council for housing assistance in February 2007 on the basis that she had become unintentionally homeless.

Under section 189 of the Housing Act 1996 (UK), an unintentionally homeless person with a minor would typically qualify for priority need of social housing. However, pursuant to section 185(4) of the Act, because the applicant’s son was subject to immigration control, he was to be disregarded for the purposes of determining whether the applicant was in priority need. As such, the Council decided that the applicant did not qualify for priority need. This decision was upheld on review.

In September 2007, the Council helped the applicant to secure a private tenancy outside of Southwark. She remained on the waiting list for a social tenancy, and moved back to Southwark when one became available in May 2009. The applicant complained to the ECHH, alleging a violation of Article 14 of the Convention, taken in conjunction with Article 8.

Decision

Article 8 of the Convention relevantly provides that everyone has a right to respect for his or her home, and that a public authority shall not unlawfully or unnecessarily interfere with this right. Although Article 8 does not expressly provide a right to housing, the ECHR has previously held that where a State elects to provide housing benefits, it must do so in a manner that complies with Article 14. As such, the Court held that the applicant’s complaint was within the ambit of Article 8.

Article 14 relevantly provides that the rights and freedoms set out in the Convention shall be secured without discrimination on any ground such as “national or social origin” or “other status”. Here, the applicant argued that she had been discriminated against based on her son’s nationality. However, the Court held that the ground of distinction was actually her son’s immigration status. While the UK argued that this was not a relevant ground of distinction, the Court considered that it could be brought within the reference in Article 14 to discrimination based on a person’s “other status”.

In considering whether the applicant had been discriminated against on the basis of her son’s immigration status, the ECHR stated that differential treatment will be discriminatory if there is no reasonable justification for it, i.e. if the treatment does not pursue a legitimate aim, or if the means employed to achieve this aim are not proportionate to the aim. The Court stated that as a general rule, where differential treatment is based on an inherent characteristic like nationality or sex, a State will have to present “very weighty reasons” to justify the treatment. However, given that the immigration status of the applicant’s son involved an element of choice (the applicant elected to remain in the UK and chose to have her son join her), the Court held that the required justification need not be as weighty. The Court also noted that States enjoy a wide discretion on socio-economic matters such as the provision of social housing.

Applying these principles, the ECHR held that the imposition of criteria for allocating social housing is a legitimate aim, so long as these criteria are not arbitrary or discriminatory. The Court considered that there was nothing arbitrary about denying priority need status to the applicant based on the fact that her son’s presence in the UK was conditional on him not having recourse to public funds, especially given that the applicant was fully aware of and accepted this condition of her son’s entry into the UK.

The ECHR also held that the means used to realise this aim were not disproportionate. On this point, the Court was particularly influenced by the fact that even if the applicant had been determined to be in priority need of social housing, it would have made little difference because she would likely still have been temporarily housed in the private sector for several months until a social tenancy became available. Accordingly, the Court held that the differential treatment of the applicant was reasonably justified and that there was no violation of the Convention.

Relevance to the Victorian Charter

The ECHR’s finding that a person’s immigration status is a relevant ground of discrimination under the Convention is unlikely to be relevant to cases brought under the Victorian Charter. “Discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in section 6 of the Equal Opportunity Act 2010 (Vic). Unlike the Convention, however, this list of attributes does not include “other status” or any other attribute that is likely to encompass a person’s immigration status. However, the ECHR’s comments that the weight of the reasons required to justify discriminatory treatment will vary according to whether the characteristic on which the treatment is based is inherent or involves an element of choice may offer some guidance when Victorian courts are required to consider the scope and application of the right to non-discrimination set out in section 8 of the Charter, and the circumstances in which this right may be limited under section 7(2).

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1448.html

James Kearney is a Law Graduate and Peter Haig is a Senior Associate with Allens Arthur Robinson.

Palomo Sanchez v Spain [2011] ECHR 1319 (12 September 2011)

Summary

In this case, the Grand Chamber of the European Court of Human Rights considered whether the dismissal of employees for publishing offensive material in a trade union newsletter contravened the rights to freedom of expression and freedom of association under articles 10 and 11 of the European Convention of Human Rights. The majority of the Grand Chamber concluded that the dismissals were reasonable and that no contravention of articles 10 and 11 had occurred.

Facts

The applicants were delivery workers employed in Spain by an industrial bakery company. In a series of proceedings in employment tribunals, the applicants had been successful in establishing their special salaried-worker status, entitling them to be covered by a social security regime. The applicants were later dismissed from the employment of the company following the publication of a trade union newsletter that commented on these proceedings.

This newsletter featured, on its cover, a cartoon that depicted the company’s human resources manager “sitting behind a desk under which a person on all fours could be seen from behind”, implying that the manager was “receiving sexual gratification in return for favours granted to certain workers”. Standing to one side of the manager, and apparently “waiting to take their turn to satisfy the manager”, were two representatives of a committee of the company’s non-salaried delivery workers, both of whom had testified on behalf of the company in the recent employment tribunal proceedings. The newsletter also contained two articles accusing the representatives of “selling the workers in the court”, which were expressed in language that was characterised by the Grand Chamber as “crude and vulgar”.

The Employment Tribunal rejected the applicants’ challenge to their dismissal, finding that the newsletter content was “offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager and of [the two representatives] and damaging the image of the company”. Subsequent appeals to the High Court of Justice of Catalonia, the Supreme Court of Spain and the Constitutional Court of Spain were all unsuccessful, as was the proceeding before a Chamber of the European Court of Human Rights.

Decision

The question before the Grand Chamber was whether the Spanish courts had adequately secured the applicants’ rights to freedom of expression and freedom of association in dismissing their claims. By a majority of 12 votes to 5, the Grand Chamber found that there had not been a violation of these rights.

The majority judgment dealt only briefly with the right of association under article 11 of the Convention, as they found that the applicants had not been dismissed for being members of a trade union, but rather for the publication of the newsletter. The majority did, however, state that, given the context of the newsletter’s publication, the right to freedom of expression under article 10 of the Convention was to be interpreted in light of the right to freedom of association.

In their consideration of article 10, the majority noted that the right of freedom expression could extend not only to the substantive ideas expressed in the material but also to the form of expression, even where that expression offends, shocks or disturbs. Nonetheless, the majority held that the right to freedom of expression is not unlimited and that it is legitimate for it to be restricted in order to protect the reputation of others.

Addressing the facts before them, the majority concluded that the accusations contained in the newsletter were expressed in vexatious and injurious terms. In fact, the majority noted that the contents of the cartoon “were intended more as an attack on colleagues for testifying before the courts than as a means of promoting trade union action vis-a-vis the employer.” Ultimately, the majority concluded that the Spanish courts’ findings that “the applicants had overstepped the limits of admissible criticism in labour relations” were not unfounded or unreasonable.

In the course of their judgment, the majority made a number of observations about the limitations imposed on the right to freedom of expression by the employment relationship: first, the necessity of mutual trust in an employment relationship might restrict the scope of what falls within the bounds of legitimate freedom of expression; secondly, the “disruptive effects” of attacking individuals with offensive language in a professional environment justifies severe sanctions; and finally, the ambit of acceptable criticism of private individuals is narrower than that of politicians or public servants.

The dissenting judges criticised the majority’s decision on a number of grounds, including that: the majority had failed to properly take into account the context of the industrial dispute in which the newsletter was published; the cartoon, “whilst being vulgar and tasteless in nature”, was satirical; the contents of the newsletter criticised the manager’s and representatives’ professional conduct and not their private lives; and the dismissal of the employees was a disproportionate response in light of the current employment crisis affecting Spain.

Relevance to the Victorian Charter

Section 15(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right to freedom of expression similar to that recognised by the Convention. Like article 10 of the Convention, section 15(3)(a) explicitly notes that this right may be restricted in a manner reasonably necessary ‘to respect the rights and reputation of other persons’. Section 7(2) also allows the rights recognised under the Charter to be subject to “reasonable limits”. These reasonable limits could include limitations arising as a result of the fiduciary relationship between employees and employers.

Although it is unclear where Australian courts will strike the balance between freedom of expression and the obligations owed by employees to their employers, this case indicates that any protection afforded by the Charter in relation to freedom of expression may not extend to situations where the expression is offensive, gratuitous or in any other way inconsistent with employees’ obligations to their employer.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1319.html.

Luke Pallaras is a Law Graduate with the Mallesons Stephen Jaques Human Rights Law Group

Inga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (2011)

Summary

The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.

Facts

The District Court of Belarus found Inga Abramova guilty of “minor hooliganism” for hanging ribbons and posters calling for participation in the “European March,” and ordered her to serve five days administrative arrest. Abramova claimed that a male staff member subjected her to a body search, touched her inappropriately, and threatened to strip her naked. She further claimed that she was detained in an underground cell in a facility staffed entirely by men.  According to Abramova, the facility housed persons detained on criminal charges as well as those under administrative arrest. Among other things, Abramova also claimed that: she was only fed twice a day; the heating system was turned off, despite almost freezing temperatures; there was inadequate light and ventilation; other prisoners and male staff could watch her use the toilet; and she was subjected to frequent humiliating comments.

Following unsuccessful attempts to obtain redress at the domestic level, Abramova submitted a communication to the Committee in which she alleged violations of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1. In a further submission to the Committee, the author reiterated that her communication was concerned primarily with the discrimination she experienced as a woman detained at the aforementioned facility, rather than the conditions of detention per se.

Decision

The Committee found that Belarus’ treatment of Inga Abramova constituted discrimination and sexual harassment, in violation of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1 and the Committee’s General Recommendation No 19. In reaching its determination, the Committee also took into account rule 53 of the Standard Minimum Rules for Treatment of Prisoners and the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders.

In reaching its views, the Committee reiterated that failure of detention facilities to adopt a gender-sensitive approach to the specific needs of women prisoners constitutes discrimination, within the meaning of article 1 of CEDAW. Recalling rule 53 of the Standard Minimum Rules, which is consistent with the definition of discrimination against women in article 1 of CEDAW, the Committee explained that:

• In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
• No male member of staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
• Women prisoners should be attended and supervised only by women officers.

The Committee further reiterated that sexual harassment is a form of gender-based violence against women that is prohibited under CEDAW.

In its recommendations, the Committee called on Belarus to provide appropriate reparation, including compensation, to Abramova. In addition, it recommended that Belarus take measures to, inter alia: protect the dignity, privacy and physical and psychological safety of women detainees; ensure access to gender-specific health care for women detainees; and provide safeguards to protect women detainees from all forms of abuse, including gender-specific abuse.

Relevance to the Victorian Charter

The Victorian Charter makes no express reference to the obligations of public authorities with respect to women prisoners. However, several Charter rights, when interpreted together, impose obligations on public authorities to adopt measures to address the specific needs of women prisoners and protect them against discrimination and harassment. These include the rights to non-discrimination and equality (s 8), freedom from torture and cruel, inhuman or degrading treatment (s 10), freedom from arbitrary interference in private life (s 13), and the right to humane treatment when deprived of liberty (s 22).

The decision is available at: http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-23-2009.pdf

Simone Cusack is Senior Policy & Research Officer in the Australian Human Rights Commission’s Sex and Age Discrimination Unit