Summary of the Commission's interventions in the European Court of Human Rights
Year of
Application
Case
Subject matter
Outcome
intervention
number
Privacy and surveillance; victim
Big Brother
status under Art 8; whether
Application
Watch and
applicants have exhausted domestic no. 58170/13
Others v UK
remedies
Malik v UK
The Commission’s intervention will
Application
deal with the racial and religious
no. 32968/11
2012
disparity in Schedule 7 stop and
Awaiting judgment
3
search cases.
Malik v UK
OGO v UK
Asuquo v UK
CN v UK
Would article 3 and 8 rights be
breached if someone was returned
to their country of origin where there
are allegations of trafficking and
whether this would also fail to
comply with article 4 if they were
expelled before the police have had
the opportunity to investigate the
allegations.
EHRC have made submissions on
the definition of forced labour, the
incidence of forced labour in the
UK based on our Inquiry work and
the adequacy of UK legislation to
protect victims. Article 4
The Commission made submissions
that UK criminal law in force did not
afford protection for victims of Art 4
forced labour.
Application
no 13950/12
Application not considered as this matter
was resolved by the parties
Application
No
61206/11
submissions
made
Submission made. Case settled by the
parties
Application
no. 4239/08
The case concerned allegations of
domestic servitude by a Ugandan woman
who complained that she had been forced
into working as a live-in carer. Violation of
C.N. v. THE
1
UNITED
KINGDOM
McCaughey
and ors v UK
2011
To clarify the obligations which must
be met under the HRA and ECHR in
relation to prosecutions for deaths at
the hands of the state; to achieve
greater accountability for deaths at
the hands of the state and improved
access to effective remedy where
serious failings by the state result in
death
Human Rights: Article 2
Pritchard v UK EHRC have submitted that UK
troops serving abroad are within the
jurisdiction of the United Kingdom
law in respect of human rights.
Articles 2 &13
Eweida &
EHRC have made submissions that:
Chaplin v UK; 1) there is a need to thoroughly
examine the justification
Application
no. 43098/09
McCaughey
and ors v UK
Article 4 (prohibition of slavery and forced
labour)
The Court found that the legislative
Provisions in force in the United Kingdom
at the relevant time had been inadequate
to afford practical and effective protection
against treatment contrary to Article 4.
Due to this absence of specific legislation
criminalising domestic servitude, the
investigation into the applicant’s
allegations of domestic servitude had
been ineffective.
The ECtHR ruled that the application was
inadmissible due to ongoing domestic
proceedings arising out of the inquest
which would address the points raised in
the application.
Application
No 1573/11
Submission made, awaiting judgment
Application
nos.
48420/10 -
Eweida and Chaplin were both prevented
by their employers’ dress codes from
wearing a visible cross/crucifix when in
2
Ladele &
McFarlane v
UK
/proportionality of discriminatory
acts.
2) UK case law fails to adequately
protect individuals from religious
discrimination in the workplace
because high thresholds have been
set to demonstrate:
(a) disparate impact under domestic
indirect discrimination legislation;
(b) interference with rights under
articles 9 and 14 HRA/ECHR.
59842/10 -
EHRC have made submissions that:
1) there is a need to thoroughly
examine the justification
/proportionality of discriminatory
acts.
2) UK case law fails to adequately
protect individuals from religious
discrimination in the workplace
because high thresholds have been
set to demonstrate:
a) disparate impact under domestic
indirect discrimination legislation
b) interference with rights under
articles 9 and 14 HRA/ECHR.
51671/10 and Ladele and McFarlane both objected, due
36516/10
to their orthodox religious beliefs about
marriage and sexual relationships, to
Ladele &
carrying out certain work duties in respect
McFarlane v
of same-sex couples. The European
UK
Court of Human Rights found against
both of them. The most important factor
for the Court was that the employer’s
action was intended to secure the
implementation of its policy of providing a
service without discrimination. The new
judgment confirms that a practice or
manifestation motivated, influenced or
inspired by religion or belief, and which is
Eweida &
Chaplin v UK
uniform at work. The majority of the
European Court of Human Rights decided
that their religious rights at work needed
to be balanced against other
considerations. In the case of Eweida, an
airline check-in officer, they found that her
Article 9 right to manifest her belief was
unjustifiably breached. In the case of
Chaplin, a nurse, the Court unanimously
concluded that the health and safety of
staff and patients outweighed the right of
the employee to wear a visible crucifix on
a chain around her neck. The employer's
decision interfered with her Article 9
rights, but it was justifiable on health and
safety grounds.
3
3) that it is generally justifiable to
refuse to accommodate
discriminatory religious beliefs which
would lead to discrimination against
others.
2010
Bah v UK
Housing allocation to people whose
priority need depends on a
dependent who is subject to
immigration control.
Articles 14 and 13 ECHR
Whether govt response to
declaration of incompatibility in
Morris v Westminster is adequate.
Application
No.56328/07
BAH v. THE
UNITED
KINGDOM 56328/07
[2011] ECHR
1448 (27
September
2011)
sufficiently linked to the religion or
belief will be protected, regardless of
whether it is a mandatory requirement of
the religion or belief. In the past,
employees in similar situations may have
been expected to resign if they wished to
observe their religion or belief in the
workplace. The ECtHR concluded that
this approach could not be followed
rigidly. The judgment means that courts
will now give more attention to deciding
whether restrictions on religious rights in
the workplace are appropriate and
necessary. These changes are what the
Commission argued for in its intervention
submissions, so the outcome was a
success.
The claimant was unsuccessful. The
court declined to consider the amending
provisions (following Morris v
Westminster) and held that the
discrimination on the basis of the
immigration status of the applicant's son
was justified and proportionate.
The court conclusively held that a
person's immigration status is a relevant
ground of discrimination under Article 14
of the ECtHR.
Bah EHRC submission
4
Greens v UK
Voting rights of prisoners
Article 3 of Protocol 1 ECHR
Failure to implement earlier
judgment of the ECHR in Hirst
Van Colle v
UK
Scope of the positive obligation
inherent in Art 2 ECHR to protect the
lives of vulnerable people
Application
No. 60041/08
Greens v
United
Kingdom
60041/08 and
60054/08
11April 2011
Application
No.7678/09
Van Colle v
UK
The court declined to award
compensation to Mr Greens who had
been unlawfully disenfranchised for many
years but in a highly unusual move the
court ordered the government to bring
forward amending legislation within 6
months of the judgement and to bring it
into force under a timetable to be set by
the Committee of Ministers (of the
Council of Europe).
Greens EHRC submissions
This case concerned the circumstances
in which a positive obligation arises on an
agency of the State pursuant to Article 2.
Mr Van Colle was murdered by a man
who had been arrested and bailed for
stealing items from his business. Mr Van
Colle had previously informed the local
police that he was being harassed and
threatened by this man. The question
was what obligation was there on the
police to protect Mr Van Colle and as far
as possible to prevent the situation that
transpired. The Commission submitted
that whether a positive obligation arises
and, if so, whether it has been breached
must depend in every case on the context
and the particular circumstances in
issue. In a disappointing judgment, the
Court decided that in the circumstances
of this case, there has been no violation
5
Fox v UK
What is needed to satisfy the
obligation to carry out the
investigatory duty under Art 3 ECHR
Elizabeth
Kawogo v UK
Whether Violation of the right not to
be held in slavery or servitude is
contrary to Article 4 EHRC
Application
No. 61319/09
Application
No
56921/09
Elizabeth
Kawogo v UK
of Article 2 of the Convention. However,
some members of the Court recognised
that the door wasn’t closed on the
consideration of certain matters that were
raised. The opinions of Judge Vucinic
and Judge Garlicki, for example, appear
to open the door to further consideration
of the issues relating to the
circumstances in which the positive
obligation under article 2 arises (when
and if a suitable case comes before the
Court). Their opinions indicates a
recognition that the debate is ongoing
and the arguments need to be reviewed
and resolved at some point - hopefully
with an outcome that the Commission
would support. To this extent, the
outcome is successful in part.
The case was dismissed on 20 March
2012. The applicant had not exhausted
the domestic remedies available to him.
As a result the Commission's
submissions were not heard.
The case struck out as the government
issued a universal declaration which the
Court has accepted. The Court was
satisfied that the government accepted
that:
 it was in breach of its procedural
obligations under article 4 in failing to
investigate with a view to bringing a
6
Da Silva v UK
2009
RP v UK
Is the failure to pursue criminal or
disciplinary charges against any
individual police offers a breach of
Article 2 ECHR
Parents with learning difficulties
Access to justice, right to a fair
hearing, Article 6 ECHR; role of the
Official solicitor.
Application
No 5878/08
Application
No. 38245/08
RP v UK
prosecution;
 the criminal law in force at the time
was inadequate
 the government has brought in new
legislation ( s71 of the Coroners and
Justice Act) so it is unlikely to be
repeated
 the scope of the declaration is broad
enough to deal with the article 13
complaints
The government also suggested a level of
compensation which the Court agreed
with.
Awaiting judgment
On the facts of the case the Court did not
consider that the very essence of R.P.’s
right of access to a court was impaired
and therefore found that there had been
no violation of her rights under Article 6(1)
of the Convention.
Procedural aspects of right to family
life, Article 8 ECHR
JM v UK
Whether same-sex couples are a
'family' for Art.8 purposes or merely
covered by the 'private life' aspect.
Application
No. 37060/06
J M v. THE
UNITED
KINGDOM 37060/06
The Court declined to consider the case
under Article 8 holding that the facts
clearly came within the ambit of Article 1
of the First Protocol (protection of
property) and that Article 14 was engaged
via that route thus deciding that it was
7
[2010] ECHR
1361 (28
September
2010)
unnecessary to determine whether on the
facts of this case Article 8 was engaged,
on either the family life or private life
basis. The applicant succeeded via the
A1P1 route and was awarded EUR 3000
damages and her costs. .
The issues has in fact been resolved by
the Grand Chamber of the ECHR in the
mean time in Schalk and Kopf v Austria,
in which the court accepted for the first
time (June 2010) that it is artificial to
maintain the view that in contrast to a
different sex couple a same sex couple
cannot enjoy 'family life' for the purposes
of Article 8.
Kay v UK
Challenging possession orders,
proportionality and Article 8 ECHR
Tension between Doherty in the HL
and conflicting ECHR cases
Application
No. 37341/06
KAY AND
OTHERS v.
THE UNITED
KINGDOM 37341/06
[2010] ECHR
1322 (21
September
2010)
JM EHRC submissions
The Court agreed with the Commission
saying that the loss of one's home is the
most extreme form of interference with
the respect for the home.' The went on to
say that anyone facing a loss of that
magnitude has the right to have the
proportionality of the loss determined an
independent court or tribunal, even where
the right of occupation has come to an
end. The Court found that there had been
a violation of Article 8 and awarded each
of the applicant’s £2000 compensation.
Kay EHRC submissions
8
O'Donoghue v
UK
Seal v UK
Discriminatory marriage certificates
of approval scheme for immigrants
Application
No. 34848/07
Govt failure to respond to domestic
declaration of incompatibility.
O'Donoghue
v UK
34848/07 14
December
2010
Whether the requirement for leave to
bring proceedings in s 136 and 139
of Mental Health Act causes
violations of Article 6 ECHR
Application
No. 50330/07
SEAL v. THE
UNITED
KINGDOM 50330/07
[2010] ECHR
1976 (7
December
2010)
Judgement received on the 14 December
2010. The Commission had argued that
that the scheme was inherently unfair and
disproportionate as it targeted all those
who fell within its remit without any
reference to whether there was a
suspicion that the marriage was genuine
or not. The court agreed and was
especially concerned that the scheme
imposed a blanket prohibition on the
exercise of the right to marry on all
persons in a specified category,
regardless of whether the proposed
marriage was one of convenience or not.
The Court held that there had been a
violation of Art 12, 14 (with Art 12) and
Art. 14 (with Art.9). It awarded the
applicants EUR 8500 +costs
O'Donoghue EHRC submission
The Commission had argued that s139
(2) of the 1983 Act erected a substantive
barrier which it felt impermissibly
restricted the access to court required by
Art 6 of the Convention. The Commission
had submitted (in writing) that section 139
(2) created two hurdles namely the
requirement for prior leave from the High
Court with the failure to obtain it rendering
the proceedings a nullity and not being
able to issue fresh proceedings with a
view to obtaining leave where the
9
limitation period had expired, by the time
the procedural error came to light. The
EHRC had argued that this restriction on
access to court was neither justified nor
proportionate, given that there was no
evidence that those subject to
compulsory powers under the 1983 Act
were or would be vexatious litigants. The
Commission also referred to the UN
Convention on the Rights of Persons with
Disabilities and in particular Article 12
which provides that persons with
disabilities have equal recognition before
the law. The court did not agree, finding
the restrictions on access to court to be
legitimate and proportionate.
Seal EHRC submission
10
The ECHR found that the government’s
arrest and detention of the men violated
their rights under Articles 3, 13 and 34 of
the European Convention. The ECtHR
criticised the Government for failing to
take all reasonable steps to comply with
its interim order and to obtain assurance
from the Iraqi authorities that the men
would not face the death penalty. The
Commission had submitted to the Court
that where Britain’s international law
obligations conflict with their obligations
under the ECHR, human rights
considerations should prevail. The ECtHR
agreed, confirming that human rights
considerations are paramount in cases
such as this and that “it is not open to a
Contracting State to enter into an
agreement with another state which
conflicts with its obligations under the
Convention”.
Al-Saadoon EHRC submissions
Application
The Commission made submissions on
Nos.
the UK’s ban on the use of intercept
46559/06 and evidence in court. The Commission
22921/06
argued that the blanket ban is not
compatible with Article 6 and that the
Russell
existing system for regulating non
KNAGGS
disclosure on PII grounds can be
and Ramzy
modified so as to provide the proper
KHACHIK v
balance between the interests of the state
Al Saadoon v
UK
Transfer of two Iraqi suspects to Iraqi Application
jurisdiction in violation of an order
No 61498/08
(“interim measures”) of the European
Court of Human Rights
Al Saadoon v
United
Extent of ECHR jurisdiction
Kingdom
61498/08 4
International law obligations v ECHR October 2010
obligations: status of interim
measures
Knaggs and
Khachik v UK
Need for ban on the use of intercept
evidence in court to be lifted
Privacy
Impact of counter terrorism
measures on ECHR rights
11
the United
Kingdom 46559/06
[2011] ECHR
1328 (30
August 2011)
Hode v UK
Rights of spouses to join refugee
Application
partners on non-discriminatory basis. No. 22341/09
Articles 8 and 14 ECHR
Redfearn v
UK
Banning of BNP members in
particular sectors of employment
Balancing conflict between human
rights
Articles 10 and 11 either alone or
with Article 14
Hode v UK
Application
No 47335/06
Redfearn v
UK
and public and those of the defendant.
The court ruled the applications
inadmissible for failure to exhaust
domestic remedies so the matter was not
considered substantively.
Knaggs EHRC submissions
The case concerned the right of a refugee
to marry and bring their (post-flight)
spouse to the UK (where they had never
previously lived together). The ECtHR
held that there had been a violation of
Article 14 (prohibition of discrimination) in
conjunction with Article 8 (right to respect
for private and family life) of the ECHR.
The Court found, in particular, that the
difference in treatment between the
applicants and other categories of
immigrants had not been objectively and
reasonably justified. The Commission’s
submissions on the relevant issues were
not contradicted in the judgment.
The Commission intervened on the side
of the UK to argue that the domestic
courts had got the decision in this matter
right. The ECtHR, by a majority of four to
three, decided that, despite the margin of
appreciation, the positive obligation
placed on the UK by Article 11 (right to
free assembly and association) meant
that a person dismissed on account of his
12
political beliefs or affiliations should be
able to claim unfair dismissal despite not
having the qualifying one year’s service
then applicable. The ECtHR has not
found that Mr Redfearn was discriminated
against or unfairly dismissed, merely that
he should be given the opportunity to
argue this point before an Employment
Tribunal.
13