A Review of the International Centre for the Legal Protection of Human Rights

ISSN 0268-3709 1998/9 Volume 12 No1

BULLETIN
T
3 9 11

Universal Declaration of Human Rights - 50 Years On

Contents
The Status of the UDHR in National and International Law Hurst Hannum The Implementation of Rights Andrew Byrnes Economic and Social Human Rights, the UDHR and the New Millennium J Oloka-Onyango Womens Rights and International Human Rights Law Radhika Coomaraswamy The Right to Development Danilo Trk

he Universal Declaration of Human Rights marked the beginning of a remarkable process in which human rights have displaced state sovereignty as the fundamental principle of the international community. States are obligated to promote and respect human rights in their jurisdictions. Together, they also have a collective responsibility to protect human rights globally. They may punish in their courts foreigners who have committed grave violations of human rights in a third country. States and international institutions may criticise governments which are in systematic or serious breach of the rights of their own citizens. We shall soon have an international criminal court which will be able to try and punish state officials for serious violations of the rights of their own citizens. However, despite this seemingly impressive evidence, the bold statement which opens this paragraph is more reflective of theory than reality.
The UDHR provided a remarkable framework in which the promise of human rights could have been realised. Its language has the capacity to inspire. It also has the capacity to unify; it is still the most balanced of international human instruments. It balances rights with responsibilities; community with the individual; civil and political rights with social, economic and cultural. It has within it the seeds of extraordinary growth, manifested now in subsequent initiatives in elaboration of rights and the machinery for enforcement. It speaks to most major contemporary concerns and controversies in human rights and provides the framework for their resolution.

41 42

Economic and Cultural Barriers to the Global Agenda on Childrens Rights 43 Bart Rwezaura The Critics of the UDHR Yash Ghai 45

Judgments of National Courts referring to the UDHR 47 Review article on the UDHR Candy Whittome 50

promises to reverse the fragmentation of peoples. It acknowledges the brotherhood and the sisterhood of the human race. It is a promise of the infinite possibilities of the human person. It links us to the fate of peoples across vast distances in the concern for their oppression. It lays the basis of human solidarity. It is the foundation of networks across races, religions and continents. It is the means whereby we seek to shame governments. It is the language in which we express our deepest anguish and our highest aspirations. It is the only weapon of the poor, the dispossessed and the oppressed. The reality, however, is different. The reality is too unbearable, too horrendous, to contemplate in this the fiftieth anniversary of the UDHR. As a principle of international organisation, human rights are secondary to state sovereignty and to the interests of a state in its relations with other states. Gross and heart-rending
1

International Law reports

See pages 13-40
(1998/9) 12 INTERIGHTS Bulletin

But the significance of human rights is still at the level of ideology. Human rights has always been a powerful idea. The recognition of human rights universally is even more powerful. It diminishes the importance of national borders and

Bulletin
Editor Guest Editor Production Manager Emma Playfair Yash Ghai Vicky Berry

Law Reports
Editor & Comments Jeremy McBride

violations of the most basic rights take place daily, in total contradiction to the most solemn undertakings of states - with impunity. The cynicism and opportunism of governments, the architects of the international regime of rights, is the single most important source of the violation of rights. The same governments which promise to protect life and improve living standards spend billions on producing weapons for the destruction of life. All around us are the material forces, particularly in the form of world capitalism, that negate the rights and freedoms of people. The ability of these forces to operate globally frees them from the restraints of the community and even of most states. They re-organise the life of millions, substituting the discipline of the factory and the harshness of the market for the warmth of the community and the rhythm of self-sufficient economy. They rupture the cohesion and solidarity of communities. They claim the rights of mobility, property and contract, the modern tools of enslavement, for themselves, while denying to others their most basic of rights, a life in dignity. Profits, not rights, is the value they live by. The possibility of the autonomy of the individual, a concept nurtured in civilisations that gave birth to the market, is by that very form of economic organisation denied to millions of people who lose all control over their lives. In this they have the support of the most powerful and hegemonic states, who are the loudest in the espousal of rights and freedoms of others. Through no fault of its conception, the UDHR failed to meet the human rights challenges of even its own time. In a more complex world, where threats to our rights are more subtle and more powerful,

Legal Staff
Executive Director Senior Legal Officer Senior Legal Officer Legal Officer Legal Officer Legal Officer Legal Information Officer Emma Playfair Chidi Anselm Odinkalu Natalia Schiffrin Sara Hossain Ibrahima Kane Borislav Petranov Marie Pool

Board
Lord Lester of Herne Hill QC Keith Patchett Jeremy McBride Chaloka Beyani Monica Carss-Frisk Christine Chinkin Helena Cook Stefanie Grant Patricia Hyndman Neville Linton Margo Picken William V W Norris Michael Renshall President Chair Treasurer

couched in the language of liberalism, transparency, privatisation, property, and where the means of power have flowed from the public to the private, we also need a re-conceptualisation of rights. We need to develop the idea of collective rights as protection against corporate power. We need to hold corporate power accountable for its acts and their consequences; we need to impose on it the obligations that flow from the rights of the people, of workers, consumers, women, chidren and indigenous peoples. We need to overcome the pessimism of human nature that underlies the original conception of rights, and by engaging in inter-cultural exchanges and dialogues, to enrich our understanding of rights and freedoms, and their potential for solidarity and human responsibility. We have to found rights on our understanding of true globalisation and human solidarity - and free rights from the confinement to a state. A global citizen is one who carries her rights with her everywhere and does not have to lock them up in a left luggage compartment when entering another state. I desist from pointing to the implications of universal rights for the redistribution of the worlds resources. Now that would be ideological and idealistic!

Yash Ghai, Guest Editor

Sir Y K Pao Professor of Public Law, University of Hong Kong

Advisory Council
Prof Reginald Austin Prof Abdullahi A An Naim Florence Butegwa Dr Ewa Brantley Roger Errera Prof Jochen Frowein Prof Yash P Ghai Bongani Majola Marek A. Nowicki Chief Justice Laszlo Solyom Suriya Wickremasinghe INTERIGHTS Lancaster House, 33 Islington High Street London N1 9LH, UK Tel: 0171 278 3230 Fax: 0171 278 4334 E-MAIL: IR@INTERIGHTS.ORG Registered Charity No.292357 Incorporation No. 1927581 Copyright 1998 INTERIGHTS
Items from the Bulletin may be reproduced by prior agreement with the editor. The views expressed in the Bulletin are not necessarily those of INTERIGHTS.

CORRECTIONS
Prisoners Rights Issue 11.4 The report on p134 of the adoption of the text of the Statute of the International Criminal Court, erroneously stated that crimes against humanity need to be both widespread and systematic to be prosecuted before the Court. This should have read widespread or systematic. On p161 of the International Law Reports, the case of Villafane et al v Columbia concerned Art 9 of the ICCPR, not the ACHR as stated.

INTERIGHTS Bulletin is produced with the support of and in cooperation with Butterworths.

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The Status of the Universal Declaration of Human Rights in National and International Law
1 Hurst Hannum

he Universal Declaration of Human Rights has been the foundation of much of the post-1945 codification of human rights, and the international legal system is replete with global and regional treaties based, in large measure, on the Declaration. Initially adopted only as a common standard of achievement for all peoples and all nations, the Declaration today exerts a moral, political, and legal influence far beyond the hopes of many of its drafters.
inspiration and has been the basis for the United Nations in making advances in standard setting as contained in the existing international human rights instruments.2 In light of this reaffirmation of the importance of the Universal Declaration, the present article on the Declarations status in national and international law seems particularly timely. The article first surveys references to the Universal Declaration in national courts, where it has been variously utilized as a rule of decision or as a significant interpretative guide to the meaning of domestic, constitutional or statutory provisions. It next considers the place of the Declaration as part of customary international law, drawing upon the statements of governments, legal scholars, the International Court of Justice, and other international bodies. A short conclusion follows.

Reference to the Universal Declaration in National Courts

The mere fact that a state has accepted certain international obligations in the field of human rights does not automatically imply that those obligations have binding domestic effect. Most states adhere to a dualist conception of the relationship between international and domestic law, and non-self-executing treaties may enjoy no greater status as domestic law than does the Universal Declaration. In some systems, general or customary international law may be more easily implemented in national law than non-self-executing treaties. The contribution of the Universal Declaration to the content of those obligations is evident, whether the Declaration is considered to be customary law itself or only evidence of custom. The Universal Declaration may be utilized by a national court in different ways: it may provide a rule of decision binding on the court, where it is found to constitute or reflect customary international law in a system in which international law has direct applicability, as is the case in Austria and Tanzania, for example. The Declaration may be utilized to interpret or inform conventional or domestic law which deals with human rights, as for instance in Belgium, India and the United States. It may be deemed to be evidence of governmental policy which the court must (or may) respect; in many countries, for example, courts are obliged to interpret domestic statutes to be consistent with international obligations or principles of foreign policy whenever possible. Finally, of course, courts may explicitly or implicitly reject the relevance of the Declaration to domestic law; such opinions frequently cite the purely political or non-self-executing nature of the Declaration or the supremacy of national law. 3

The Universal Declaration has served directly and indirectly as a model for many domestic constitutions, laws, regulations, and policies that protect fundamental human rights. These domestic manifestations include direct constitutional reference to the Universal Declaration or incorporation of its provisions; reflection of the substantive articles of the Universal Declaration in national legislation; and judicial interpretation of domestic laws (and applicable international law) with reference to the Universal Declaration. Many of the Universal Declarations provisions also have become incorporated into customary international law, which is binding on all states. This development has been confirmed by states in intergovernmental and diplomatic settings, in arguments submitted to judicial tribunals, by the actions of intergovernmental organizations, and in the writings of legal scholars. Most states are now bound by one or more multilateral conventions concerning human rights, but the existence of such conventional obligations does not necessarily diminish the importance of the Universal Declaration. The Universal Declaration remains the primary source of global human rights standards, and its recognition as a source of rights and law by states throughout the world distinguishes it from conventional obligations. Despite controversy over many issues, the more than 100 countries which participated in the 1993 UN World Conference on Human Rights reaffirmed their commitment to the purposes and principles contained in the Charter of the United Nations and the Universal Declaration of Human Rights and emphasized that the Declaration is the source of (1998/9) 12 INTERIGHTS Bulletin

The Universal Declaration in National Law

The international community, led by the United Nations, has accomplished a great deal in developing minimum, universally applicable human rights standards. Numerous international mechanisms exist to assist in the implementation and enforcement of these standards, although the persistence of human rights violations around the world attests to the difficulty of matching the reality to the ideal. But no matter how effective international procedures may become, it is national governments that are ultimately responsible for guaranteeing human rights within their territory. The relevance of the Declaration to national law and practice thus must be the starting point for any analysis of the Declarations impact.

The Universal Declaration as a rule of decision Few national courts are willing to overturn inconsistent domestic law based on rights found in an international source such as the Universal Declaration. The Declaration is nonetheless frequently cited in support of judicial decisions which uphold a particular right guaranteed under domestic constitutions or statutes. Under article 10 of the Italian Constitution, domestic law is to conform to generally recognized principles of international law. Italian courts have taken a relatively broad view of this mandate in the field of human rights, holding that the Universal Declaration is more than a mere declaration of intent from the point of view of Italian municipal law. On the contrary, it is a general principle of law which must be held to have become part of our law...3 The High Court of Tanzania recently referred to article 7 of the Universal Declaration, which is part of our Constitution, in overturning as unconstitutional a norm of Tanzanian customary law which discriminated against women.4 In Chile, the Declaration, as a declaration of Customary International Law, has validity in the Chilean legal order based on its automatic incorporation into that legal order, and it has been cited by Chilean courts in several instances.5 The Universal Declaration as an aid to constitutional or statutory interpretation As noted above, international law, whether conventional or customary, can have a number of different effects in domestic law, depending on the domestic legal system. Most courts do not clearly articulate the influence of international norms, such as those found in the Universal Declaration, on their decisions. Even where one finds explicit statements rejecting the Declaration as a source of binding law, human rights norms nevertheless may influence a courts interpretation of domestic norms. The following survey of judicial opinions which refer to the Universal Declaration (as opposed to international law in general or treaty law) illustrates the range of often unclear judicial treatment of the Declaration in national courts. The Universal Declaration (and the Covenants) clearly influenced the drafters of the Canadian Charter of Rights and Freedoms, and the Declaration has been cited numerous times to interpret Canadian law. The Canadian Supreme Court has stated: 4

Canadas international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s1 objectives which may justify restrictions upon those rights.6 Several Indian cases have specifically referred to the Universal Declaration, which was adopted the year before the Indian constitution and is widely held to have provided the model for the latters human rights guarantees. [The Declaration] may not be a legally binding instrument but it shows how India understood the nature of Human Rights at the time the constitution was adopted.7 Thus, although the Supreme Court has stated that the Declaration cannot create a binding set of rules and that even international treaties may at best inform judicial institutions and inspire legislative action,8 constitutional interpretation in India may be strongly influenced by the Declaration.9 At the same time, an early Indian case made clear that the Universal Declaration cannot be taken into account where it conflicts with clear provisions of the Indian Constitution.10 There have been some references to international human rights treaties in Australian judicial decisions,11 although treaties are nonself-executing unless formally incorporated through legislation. Most references to the Universal Declaration have been minimal and relatively insignificant; however, a law recognizing aboriginal land rights in Australia includes a preambular reference to Australias acceptance of the Universal Declaration as one of the international standards for the protection of universal human rights and fundamental freedoms.12 One of the most frequently cited references to the Universal Declaration in common law systems is that made by Lord Wilberforce in 1980 in a decision by the House of Lords involving the constitution of Bermuda. Noting that the Bermuda constitution was greatly influenced by the European Convention of Human Rights, Lord Wilberforce continued: That Convention.... was in turn influenced by the United Nations Universal Declaration of Human Rights of 1948. These antecedents... call for a generous interpretation, avoiding what has been called the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms [at issue in the present case].13

While this dictum obviously falls far short of endorsing the substantive norms found in the Declaration, it has provided authority for constitutional interpretations that go beyond a narrowly domestic focus. Provisions of the Universal Declaration (and the Covenants and European Convention) have been referred to in several Mauritius cases, although Mauritius follows the basic common law principle that international law (apparently both conventional and customary law) has no domestic effect unless it has been specifically adopted through the normal legislative process.14 Until very recently, the United States had not ratified most of the major international human rights treaties, and customary international law has thus been the major source of rights to which US plaintiffs seeking to challenge practices on other than constitutional grounds have appealed. As a result, the Universal Declaration has perhaps been referred to more frequently by US courts than by courts in any other jurisdiction. As noted in the oft-cited case of The Paquete Habana, international law is part of our [US] law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.... [W]hen there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.15 According to the reporters of the Restatement (Third) of the Foreign Relations Law of the United States, the binding character of the Universal Declaration continues to be debated in the United States.16 Nevertheless, although the approach of the Court of Appeals in the Filartiga case17 has occasionally been questioned,18 recent US cases seem to accept Filartigas methodology of establishing customary international law and defining the law of nations. Indeed, a recent case brought against an Ethiopian torturer merely concluded in a rather cursory fashion that United States law... includes customary international law as part of US common law, and that acts of prolonged arbitrary detention, torture, cruel, inhuman and degrading treatment... constitute violations of the law of nations.19 Article 93 of the Dutch Constitution states, Provisions of treaties and of resolutions of international institutions, which may be binding upon all persons by virtue of their contents shall become binding after they have been published. Dutch courts have consistently held that the Universal (1998/9) 12 INTERIGHTS Bulletin

Declaration does not fall within this provision since it is not based on a power conferred by or under treaty to take binding decisions for the Netherlands, but it is evidently based on the power to make recommendations conferred on the General Assembly in Chapter IV of the Charter of the United Nations.20 Nonetheless, Dutch courts have referred occasionally to provisions of the Declaration as an additional aid to statutory interpretation.21 As in most civil law systems, only ratified treaties have an impact in domestic courts under French constitutional law. Thus, customary international law is rarely considered by either administrative or constitutional courts and would not, in any event, prevail over inconsistent domestic law.22 With respect to the Universal Declaration in particular, the doctrine that is most often traced to the Elections de Nolay case23 has been reiterated consistently in French courts: [T]he mere publication of the text of the Universal Declaration of Human Rights in the Official Journal of 9 February 1949, does not permit classifying [the Declaration] among those diplomatic texts which, having been ratified and published according to law, have an authority superior to that of domestic law according to the terms of article 55 of the Constitution of 4 October 1958.24 However, a recent case decided by the Cour de Cassation rather than the Conseil dEtat does cite the Declaration as helping to define the French conception of international public order.25 More common is the simple citation of the Declaration by the Cour de Cassation as one among other sources which supports existing constitutional principles. Despite these occasional references, however, the Universal Declaration has not played a significant role in French jurisprudence. Article 31 of the Argentine Constitution establishes the supremacy of the constitution over international law, although properly ratified treaties have a status equal to that of ordinary legislation and will prevail if they conflict with prior legislation.26 Nevertheless, Argentine courts have referred to the Universal Declaration (and other international instruments) on several occasions in support of particular constitutional interpretations.27

Influence of the Universal Declaration on Legislative and Administrative Acts

The Universal Declaration has served as a model or inspiration for numerous constitutional and legislative provisions. One author has estimated that no fewer than 90 national constitutions drawn up since 1948 contain statements of fundamental rights which, where they do not faithfully reproduce the provisions of the Universal Declaration, are at least inspired by it.28 Of course, the mere recitation of norms may not necessarily reflect an honest intention to adhere to them. In addition, hortatory constitutional references may be of little value if they are not judicially enforceable. In this respect, the provisions of the constitutions of Portugal, Romania, Sao Tom and Principe, and Spain are of particular interest, since each directs its countrys courts to interpret constitutional norms in conformity with the Universal Declaration. The Ministry of Justice of St. Vincent and the Grenadines is perhaps typical in noting, Most of the tenets contained in the Universal Declaration of Human Rights have been adopted in the Saint Vincent Constitution Order 1979.29 Article 15 of the Constitution of Antigua was largely inspired by the European Convention, which was itself largely based on the Universal Declaration.30 The President of Kazakhstan stated that the civil rights provisions in the draft constitution adopted by that country in 1992 were based on the Universal Declaration of Human Rights and on the constitutional experience of both Western and Oriental nations.31 The impact of the Universal Declaration on legislative bodies also should not be underestimated. References to international or universal human rights contained in national laws have frequently inspired demands that human rights promises be kept. A prime example of the direct influence of the Universal Declaration is the Canadian Charter of Rights and Freedoms. Almost every article of the Charter... will be seen to have some major or minor connection with the large network of international human rights instruments on the one hand, or general international human rights law, at the customary law or general principles level, on the other.32 As important as judicial enforcement or constitutional provisions may be, the first line of human rights protection is the executive branch of government. Administrative policies and enforcement of domestic law

may either reinforce or undermine the norms of international human rights. In this respect, the influence of the Declaration goes beyond its status as law to encompass a continuing role as a common standard of achievement.

Status of the Universal Declaration in Customary International Law

It is, of course, unanimously agreed that the Universal Declaration of Human Rights was not viewed as imposing legal obligations on states at the time of its adoption by the General Assembly in 1948. The status of the Declaration when it was adopted in 1948 is described by the United Nations as that of a manifesto with primarily moral authority,33 the first of four stages in the generation of the document the General Assembly has called the International Bill of Human Rights.34 It is clear that principles initially considered by the international community to be only goals or aspirations can develop into binding norms over time, if they become accepted as customary international law. Proving the existence of a norm of customary international law requires proof of an identifiable state practice, accompanied by evidence that states recognize the practice as obligatory, ie, legally binding. In the words of the International Court of Justice, not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.35 Determining whether or not a particular customary law norm exists may draw upon a wide variety of sources. According to Brownlie, those sources include diplomatic correspondence, policy statements, ...the opinions of official legal advisers, official manuals on legal questions,... executive decisions and practices, ...state legislation, international and national judicial decisions, ...a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly.36 Even if the question of [w]hether human rights obligations have become customary law cannot readily be answered on the basis of the usual process of customary law formation,37 there can be no question that, under whatever list of criteria one adopts, the Universal Declaration constitutes at least significant evidence of customary international law. 5

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Several distinguished commentators have taken the same position, ie, that the entire Universal Declaration now represents customary international law. One of the Declarations principal drafters concludes that, since its adoption, the Declaration has been invoked so many times both within and without the United Nations that lawyers now are saying that, whatever the intention of its authors may have been, the Declaration is now part of the customary law of nations and therefore is binding on all states.38 Waldock similarly concludes that the widespread recognition of the principles of the Declaration clothes it in my opinion, in the character of customary international law.39 Lallah, a prominent jurist from Mauritius and long-time member of the Human Rights Committee, agrees that the Universal Declaration is universally regarded as expounding generally accepted norms.40 Some scholars have found the Declarations norms even to constitute jus cogens.41 Empiric studies of state practice are...of the highest importance in establishing whether a particular right has matured into customary law.42 Several states have publicly espoused the view that the Universal Declaration is binding as customary law, although formal governmental statements are difficult to find. In a statement made on behalf of the five Nordic countries of Denmark, Finland, Iceland, Norway, and Sweden, Swedens Permanent Representative to the United Nations said: The [Universal] Declaration is generally recognized as having already become a part of universal international law.43 Several Latin American countries also have accepted that the Universal Declaration constitutes customary law. The Foreign Minister of Uruguay, for example, recently stated that the international obligation to guarantee and protect human rights is derived not only from international treaties but also from the UN Charter and the Universal Declaration, and that the obligation constitutes a peremptory norm of jus cogens.44 Mexico and Chile also recognize that the Universal Declaration constitutes customary international law. 45 Senegal, which refers specifically to the Declaration in its Constitution, believes that the Declaration has evolved into a fundamental text, whose mandatory character as jus cogens is undeniable.46 Other states have concluded that at least some of the provisions of the Universal Declaration now constitute binding customary norms, although most have not been willing to identify specifically which provisions may be binding. Of course, not every state or scholar has 6

been willing to ascribe legal content to any of the Declarations provisions per se. In a speech to the Bundestag commemorating the fortieth anniversary of the Declaration, German Chancellor Kohl stated that the Declaration was not legally binding, although he then went on to say that members of the United Nations, by adopting the Declaration, have explicitly agreed to be guided by its forceful and convincing principles.47 Similar hesitations may be found on the part of some international legal scholars. Finally, a few writers continue to reject the relevance of the Universal Declaration to their own societies, because of the Declarations purportedly Western bias. Although this view has been consistently rejected in international forums - most recently at the Vienna World Conference on Human Rights - it does retain some adherents.48

bind States on the basis of custom within the meaning of paragraph 1(b) of [Article 38 of the Statute of the Court]... because they constituted a codification of customary law... or because they have acquired the force of custom through a general practice accepted as law. 53 The Courts acceptance of Judge Ammouns approach was evidenced a decade later in the Hostages case. In its judgment, the Court stated: Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.54 Although there were dissents to the Courts judgment, none clearly challenged the quoted language. Individual judges have referred to the Universal Declaration in other cases, in each instance in support of their conclusion that a fundamental right or principle had been violated.55

Views of the International Court of Justice

The International Court of Justice has addressed the status of the Declaration at least indirectly in several opinions. The principle that human rights obligations may be imposed upon states through customary international law was established in one of the Courts early cases, in which the Court observed that the principles underlying the [Genocide] Convention are principles which are recognised by civilised nations as binding on States, even without any conventional obligation.49 In the subsequent Barcelona Traction case, the Court clarified that the obligations of a State towards the international community as a whole are obligations erga omnes, which derive, inter alia, from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.50 The Universal Declaration was cited in support of the applicants in the South West Africa cases,51 although the Court, in a widely criticized opinion, ultimately rejected the applicants standing to bring their claims.52 Only four years later, the Court addressed the substance of the South African presence in Namibia (South West Africa). Vice-President Ammoun relied specifically on the Universal Declaration in arriving at his conclusions that the right to equality is a binding customary norm: The Advisory Opinion takes judicial notice of the Universal Declaration of Human Rights.... Although the affirmations of the Declaration are not binding qua international convention..., they can

The Content of Customary Law Evidenced in the Declaration

Those who urge acceptance of the Declaration in toto as customary law are in a clear minority, and there is insufficient state practice to support such a wide-ranging proposition at this date. However, almost no state has specifically rejected the principles proclaimed in the Universal Declaration,56 and it constitutes a fundamental part of what has become known as the Universal Bill of Human Rights. Moreover, there would seem to be little argument that many provisions of the Declaration today do reflect customary international law. For instance, the prohibition against slavery in article 4 is universally held to form part of customary law;57 it is further prohibited by a series of widely ratified conventions.58 The place of article 5s prohibition against torture or... cruel, inhuman or degrading treatment or punishment in customary international law is confirmed by the Restatement, and many other sources could be cited.59 Many observers include the right to a fair trial (without more specific examination of the components of the right), found in article 10 and 11, among those now guaranteed under customary law.60 Article 3, (1998/9) 12 INTERIGHTS Bulletin

guaranteeing the right to life, liberty and security of person, may be too general to be a useful international norm, although protection of the right to life has been cited frequently as falling within customary international law. Articles 1, 2, 6, and 7 express the fundamental right of equal treatment and non-discrimination with respect to guaranteed human rights without distinction of any kind. It would seem difficult to deny the widespread acceptance of such a right to equal treatment under the law,61 and one specific kind of discrimination, that based on race, is held by all commentators to be prohibited under customary international law, at least when it is pervasive.62 Firm conclusions as to the status of any of the provisions of the Universal Declaration in customary international law cannot be drawn without a thorough survey of state practice and a comprehensive analysis of each of the rights set forth in the Universal Declaration. This is clearly not possible in the context of the present article which can only indicate the potential for such research.63

ground when many states discuss human rights. This common ground is reflected in the customary international law of human rights, to which the Declaration has greatly contributed. Although the impact of customary law in national legal systems varies, on the international plane it is by definition binding on all states. Given the central importance of the Universal Declaration in the international human rights firmament, and pending universal ratification of the Covenants and other treaties, however, it is to the Universal Declaration that most people will look to find the minimum rights to which they are entitled. Legally, politically, and morally, the Universal Declaration remains even more significant today than when it was adopted nearly a half-century ago.

CLR 1 (1983); Dowal v Murray & Anor, 143 CLR 410 (1978). These and other relevant cases are discussed in Michael D Kirby, Implementing the Bangalore Principles on Human Rights Law, 106 S Afr L J 484, 495-503 (1989). 12 Native Title Act 1993, No. 110 of 1993, Preamble. 13 Minister of Home Affairs & Anor v Fisher & Anor [1980] AC 319, 328-29. 14 See, eg, Roussety v Attorney General, [1967] The Mauritius Reports 45 (High Court), reprinted in 44 ILR 108, at 130. 15 175 U.S. 677, 700 (1900). 16 Restatement (Third) of the Foreign Relations Law of the United States 701, Reporters Note 6 at 156 (1987). 17 630 F 2d 876 (2d Cir 1980). 18 See, eg, the opinions of Judges Bork and Robb in TelOren v Libyan Arab Republic, 726 F 2d 774 (DC Cir 1984). 19 Abebe-Jiri et al v Kegewo, No 1:90-CV-2010-GET (ND Ga. 19 Aug. 1993). 20 X v Inspector of Direct Taxes, Supreme Court, [1985] NJ No 247, [1985] BNB No 43, 7 Nov 1984. 21 See, eg, Amsterdam Dist Ct, 13 Feb 1991, NJ 1991, at 488. 22 See generally, eg, J Rideau, Problmatique gnrale des rapports entre droit constitutionnel et droit international, in Droits constitutionnels et droits de lhomme, Rapports franais prsents au IIe Congrs Mondial de lAssociation Internationale de Droit Constitutionnel (Paris, 1987) at 205-48. 23 Conseil dEtat, 18 April 1951. 24 Roujansky case, Conseil dEtat, 23 Nov 1984; authors translation. 25 Huston, Cour de Cassation (First Civil Chamber), 28 May 1991. 26 See, eg, Telesud, National Federal Administrative Court of Appeal of Buenos Aires (Fourth Chamber), 18 April 1985, reprinted in 89 ILR 80. 27 See, eg, Arena v Autoridades administrativas del Servicio Penitenciario Federal, SCA 531, L XXII (1989) at 6131; Fernandez v Sanatoria Gmes SA, F 249 XXI (1988); Molteni v Estado Nacional, M 282 XXII (1989) at 2926. 28 Nihal Jayawickrama, Hong Kong and the International Protection of Human Rights in Raymond Wacks (ed), Hong Kongs Bill of Rights, Problems and Prospects (Hong Kong, 1990) 160. 29 Letter to the author from Judith S Jones-Morgan, Crown Counsel, Attorney General/Minister of Justice and Information, St. Vincent and the Grenadines, 31 Aug 1993. 30 Attorney-General & Anor v Antigua Times Ltd, JCPC, reprinted in 60 ILR 135, 137 (1975). 31 Nazarbayev Has Presented a New Draft Constitution to Members of Parliament, Nezavisimaya Gazeta at 1, as reported in Russian Press Digest, 2 June 1992. 32 Maxwell Cohen & Anne Bayefsky, The Canadian Charter of Rights and Freedoms and Public International Law, 6 Canadian Bar Rev 265, 268 (1983). 33 United Nations, The International Bill of Human Rights (New York: UN, 1988) 1. 34 Id., the subsequent three documents being the International Covenant on Civil and Political Rights, its Optional Protocol, and the International Covenant on Economic, Social and Cultural Rights. 35 North Sea Continental Shelf Cases (FRG/Denmark; FRG/Netherlands), 1969 ICJ Rep 3, 44 (Judgment of 20 Feb 1969). 36 Ian Brownlie, Principles of Public International Law 5 (4th ed) (Oxford: Clarendon Press, 1990). See also Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989) 108. See also the listing in the influential Restatement (Third) of the Foreign Relations Law of

Hurst Hannum is Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University
1 This article is a much shortened version of an article first published in the Georgia Journal of International and Comparative Law, Vol 25 Nos 1 & 2, 287-397, edited by Emma Playfair. That article was itself based on a report prepared by the author as Rapporteur of the Committee on the Enforcement of International Human Rights Law of the International Law Association. The author thanks all Committee members and Research Assistants Jennifer Gergen, Laura Gil, Kingsley Moghalu, and Jean-Louis Robadey for their comments and assistance in gathering often difficult-to-find information. Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 Jun 1993, UN Doc A/CONF 157/23 (1993), reprinted in 32 ILM 1661 (1993), Preamble, paras 3, 8. Ministry of Home Affairs v Kemali, Court of Cassation, Foro It LXXXVII (1962), Part I, at 190, 1 February 1962, reprinted in 40 ILR 191, 195. Ephrahim v Pastory & Kaizilege, High Court, 22 Feb 1990, Civil App No 70 of 1989, reprinted in 87 ILR 106, 110. Letter from Ambassador Roberto Garreton Merino, Human Rights Adviser, Minister of External Relations to the author, 14 Oct 1993, citing Lauritzen con Fisco, Revista de Derecho y Jurisprudencia, vol L II, 2d part, 1st sec, at 478 (1955); Campora and others, Revista de Derecho de Concepcin, no 102, at 755, 796, 797 (Oct-Dec 1957). Slaight Communications Inc v Davidson, [1989] 1 SCR 1038. Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461, 1510. Also see, eg, Bombay Education Society & Ors v State of Bombay, 1954 Bom 1333; Maneka Gandhi v Union of India, AIR 1978 SC 597. Jolly George Vargheese v Bank of Cochin, AIR 1980 SC at 474. See, eg, Kishore Chand v State of Himachal Pradesh, (1991) 1 SCJ 68, 76.

Conclusion
There are today perhaps thousands of ratifications to the major human rights treaties by over one hundred states. On the international plane, these treaties give rise to various reporting and other obligations; some (usually optional) provisions give individuals or nongovernmental organizations the right to petition international bodies for redress. On the domestic plane, the impact of such ratified treaties varies from minimal to significant. National courts themselves are often unclear as to the weight they give to treaty provisions, although courts are perhaps more likely to refer to ratified treaties than to other international instruments in the course of decisions. Nevertheless, the vast majority of the worlds population has no direct domestic or international redress for violations of human rights recognized under international conventions. The most important multilateral treaty in the field of human rights is perhaps the UN Charter, under which all UN members pledge to take joint and separate action in cooperation with the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms.64 Legally and politically, it is the Universal Declaration which defines the Charters human rights provisions. As the primary source of the global consensus on human rights - reaffirmed in the 1993 World Conference on Human Rights in Vienna - the Declaration represents the only common (1998/9) 12 INTERIGHTS Bulletin

6 7

8 9

10 Biswambhar Singh & Anor v The State of Orissa, High Court of Orissa, 27 Apr. 1957, AIR (Orissa) 247, reprinted in 24 ILR 425. 11 See, eg, J v Lieschke, 162 CLR 447 (1987); Koowarta v Bjelke-Petersen, (1983-5) 153 CLR 168; Australia & Anor v Tasmania [the Tasmanian Dam case], 158

the United States, n 16 above, and a somewhat less traditional list by Oscar Schachter, International Law in Theory and Practice 336 (Dordrecht: Martinus Nijhoff, 1991). 37 Schachter, supra n 36, at 336. 38 John Humphrey, The International Bill of Rights: Scope and Implementation, 17 Wm & Mary L Rev 527, 529 (1976). 39 Humphrey Waldock, Human Rights in Contemporary International Law and the Significance of the European Convention, in The European Convention of Human Rights 1, 15 (BIICL Ser No 5, 1965). 40 Paper presented by Justice R Lallah of Mauritius, in Developing Human Rights Jurisprudence, Vol 2, (London: Commonwealth Secretariat, 1989) 33. 41 See e.g. Justice M. Haleem, in Developing Human Rights Jurisprudence, (London: Commonwealth Secretariat, 1988), 97; Myres S McDougal, Harold Lasswell & Lung-Chu Chen, Human Rights and World Public Order (New Haven, CT: Yale University Press, 1980), at 274; David F Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, 13 Yale Jl Intl L 332, 354 n 111 (1988). 42 Meron, supra n 36, at 94. 43 Statement of Jan K Eliasson to the UN General Assembly, 8 Dec 1988. 44 Statement of Hctor Gros Espiell to the 47th session of the UN General Assembly (1992), reprinted in Sergio Abreu Bonilla & Alejandro Pastori Fillol, Uruguay y el Nuevo Orden Mundial, at 109, 113 (authors translation). 45 Letters to the author from Miguel Angel Gonzlez Flix, Bureau of Human Rights and Drug Trafficking, Ministry of Foreign Relations, 7 Sep 1993, and from

Ambassador Roberto Garreton Merino, supra n 5. 46 Letter to the author from Mouhamed El Moustapha Diagne, on behalf of the Minister of State of the Senegalese Ministry of Foreign Affairs, 16 Aug 1993 (unofficial translation). 47 Statement by Chancellor Helmut Kohl, Deutscher Bundestag, 11 Wahlperiode, 117 Sitzung, 9 Dec 1988, at 8569. 48 See, eg, Issa G Shivji, The Concept of Human Rights in Africa (London: Codesria Book Series, 1989) at 110. 49 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, 15, at 23. 50 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, at 3, 32; emphasis added. 51 See South West Africa, Preliminary Objections, Judgment, ICJ Reports 1962, 319, at 323 (UN Charter and Universal Declaration are currently accepted international standards). 52 South West Africa, Second Phase, Judgment, ICJ Reports 1966, 6. 53 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16, as at 76 (sep op of Judge Ammoun). 54 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3, at 42; emphasis added. 55 See, eg, Nottebohm, Second Phase, Judgment, ICJ Reports 1955, 4, at para 14 (diss op ad-hoc Judge Guggenheim).

56 Eight states abstained in the 1948 vote on the Declaration, although some have since that time accepted the Declaration at least as a statement of principles.

News and Developments

Framework Convention for the Protection of National Minorities enters into force
Convention are required to file reports within one year from its entry into force and every five years thereafter, describing legislative as well as other measures taken in order to realise the principles of the Convention. The Advisory Committee may request further information and it may also receive information from other sources, such as NGOs. Based on the opinion of the Advisory Committee, the Committee of Ministers will issue conclusions and may formulate recommendations concerning the adequacy of the measures taken by individual States. State reports, conclusions and recommendations of the Committee of Ministers and opinions of the Advisory Committee are all made public. As of 1 November 1998, twenty-four countries had ratified the Framework Convention. First reports under the Convention are due on 1 February 1999 from Croatia, Cyprus, Denmark, Estonia, Finland, Germany, Hungary, Moldova, Romania, San Marino, Slovakia, Spain and the Former Yugoslav Republic of Macedonia. N & D continued on p10 (1998/9) 12 INTERIGHTS Bulletin

he Council of Europes Framework Convention for the Protection of National Minorities entered into force on 1 February 1998. An open convention, it creates legally binding positive obligations on States to protect and promote minority rights in a wide range of issues. The Convention establishes its own monitoring mechanism through periodic States Reports submitted to the Committee of Ministers of the Council of Europe.
Non-member states of the Council of Europe, upon the invitation of the Committee of Ministers, may also join the Framework Convention, which can be important for States taking part in the Organisation of Security and Cooperation in Europe, or for those not signatories to the European Convention on Human Rights. The Framework Convention, although not the first Council of Europe instrument developed for the protection of minorities, is the most comprehensive document yet, transforming existing political commitments and creating new legally binding obligations for States parties. The Framework Convention does not give a definition of a national minority but contains specific 8 principles concerning non-discrimination, promotion of effective equality and conditions necessary for the preservation and development of culture, religion, language, traditions, freedom of assembly, expression, conscience and religion, access to the media, linguistic freedoms, rights related to education, and to maintaining transfrontier and international contacts. In many instances it specifies measures that States Parties are obliged to undertake both in legislation and policy. The implementation of the Framework Convention is monitored by the Committee of Ministers of the Council of Europe, assisted in this task by an Advisory Committee. Parties to the Framework

The Implementation of Rights

Andrew Byrnes

he Universal Declaration of Human Rights left the machinery for the monitoring and enforcement of human rights for future determination. Since then there has been a remarkable development in institutions and procedures designed to translate rights into reality. These institutions operate at the international and regional levels, and supplement various national institutions, including human rights commissions which have proliferated since the Vienna World Conference on Human Rights.

human rights instruments and sadly, despite efforts by different organisations over the years, neither the Asian region as a whole nor any of its sub-regions seems close to establishing regional human rights institutions. However, the spread of national human rights institutions in the region is an important phenomenon and gives some cause for optimism. The complaint procedures under UN human rights treaties have also begun to make their mark, though the implementation of decisions is still far from satisfactory. Over 90 states have accepted the complaints procedure under the First Optional Protocol to the ICCPR (though complaints still come from a disappointingly small number of those). About 40 and 25 states respectively have accepted the complaint procedures under the Torture Convention and Racial Discrimination Convention. Various ILO procedures apply to member states and have generated a rich jurisprudence on labour rights. New procedures have been adopted at regional level, including the European Committee against Torture (one of the most effective), a collective complaints procedure under the European Social Charter, and complaints procedures in the Americas relating to economic, social and cultural rights, and violence against women. The case law emerging from these procedures has gradually begun to have an impact at the national level, as has the other form of jurisprudence of a number of the UN treaty bodies - general comments and general recommendations. This now substantial body of jurisprudence is becoming better known among academics, lawyers, courts, NGOs and policymakers at the national level.

The most important advance is the acceptance of the right of international bodies to examine the observance of human rights in individual countries - something that 50 years ago was contested as an impermissible intrusion into the internal affairs of a sovereign state. Although some do so grudgingly, nearly all states accept the reality and legitimacy of international scrutiny arising from membership of international organisations or ratification of international human rights treaties. The international and regional promotion and supervision of the implementation of human rights guarantees takes many forms. It may include at one extreme military intervention justified by reference to the doctrine of humanitarian intervention or as authorised collective action; the deployment of economic or political sanctions; debate (and sometimes condemnation) in political fora such as the UN Human Rights Commission; the detailed elaboration of the meaning of human rights; the education of governments and communities through educational initiatives and technical assistance; supervision through reporting mechanisms; and complaint mechanisms, including judicial and quasi-judicial procedures. The proliferation of these procedures has vastly expanded the number and type of actors involved in seeking to promote the implementation of human right standards. No longer are these international obligations a matter of concern only between states, but international institutions, regional institutions and non-governmental organisations of all kinds play a critically important role. This contribution focuses primarily on procedures for the submission of complaints to international bodies and on reporting and thematic mechanisms.

Reporting
One important type of implementation procedure, pioneered by the ILO nearly 80 years ago, is that of state reporting. Under human rights treaties, ratifying states have to submit regular reports on implementation by a committee of independent experts. Reporting arrangements of this kind also exist under the European Social Charter and the African Charter on Human and Peoples Rights. These procedures, in particular, the ILOs combination of reporting, technical assistance and complaints, have brought real benefits.

Judicial and quasi-judicial complaint procedures

The development of judicial and quasijudicial procedures for investigating allegations of violations has also been significant. The European Commission of Human Rights, European Court of Human Rights, the Inter-American Commission on Human Rights and, more recently, the InterAmerican Court of Human Rights have dealt with thousands of cases against states which are parties to these respective regional systems. The Inter-American Commission especially has been prominent in documenting and criticising human rights violations through its reporting, inquiry and complaint procedures. Principles and doctrines developed by these regional bodies have broken new ground; and have been influential in developing a substantial body of comparative and international jurisprudence. The procedures under the African Commission on Human and Peoples Rights have been less effective, but efforts are underway to improve their efficacy and an African Court of Human Rights is on the drawing board. Asia is a different story. Very few Asian countries have accepted complaint procedures under universal

Thematic procedures and country-specific procedures

The so-called thematic and country procedures of the United Nations illustrate the progress made since the UN first agreed in the late 1960s to consider allegations of human rights violations under the Resolution 1503 procedure. The thematic procedures, comprising special rapporteurs and working groups on particular topics, offer an opportunity for victims of alleged violations to publicise their cases and to seek redress for 9

(1998/9) 12 INTERIGHTS Bulletin

them in the public forum of the UN. The Working Group on Disappearances, for example, established in the early 1980s, has helped to clarify many hundreds of cases of disappeared persons. Special rapporteurs on topics such as summary, arbitrary and extrajudicial executions, religious intolerance, and torture, have forced states to respond publicly in an international forum to allegations of violations and, in addition to sometimes helping victims obtain redress, may well have prevented some threatened violations. The country-specific rapporteurs and representatives have played a role in documenting serious violations in individual countries and maintaining international pressure on those countries.

The Future
Much has been achieved, but there are many ways in which the protection of human rights needs to be enhanced. They include strengthening the international and regional procedures for Asia, making more effective the implementation of decisions under existing procedures, the adoption and wide acceptance of additional procedures - particularly in relation to economic and social rights, early warning mechanisms that might prevent major conflagrations, and the further promotion of knowledge and use of international standards at the national level (including through national human rights institutions). Existing institutions are given few resources and are consequently under considerable strain, frequently unable to discharge their responsibilities. As an example, the UN human rights programme has for years received a derisory share of the UNs budget, but has had task after task given to it. Further, international organisations must be made subject to the standards which they themselves have adopted. It is also critical that human rights standards be brought fully into the work of institutions such as the international financial institutions which have immense power to affect the enjoyment of human rights by millions.

In view of the widespread human rights violations that continue to occur throughout the world, are these international procedures something that human rights defenders, NGOs and others should devote time and resources to? This is a critical and difficult question and, surprising as it may seem, we have relatively little solid evidence to assess the successes and failures of the various international procedures. The system continues to exist on the basis of much anecdotal evidence and sheer faith in its efficacy. The harsh reality is that human rights violations seem likely to continue. Frequently all we can do is to alleviate the impact of the violations. Use of international procedures can be empowering for those denied their rights and sometimes effective in remedying or even preventing violations. Given the lack of the lack of political will to deal fundamentally with the violation of rights, we may have no choice but to use and improve the tools that we have.

Other Institutions and Procedures

To these formal procedures one must also add the technical and advisory programmes that the UN, international agencies, governments and NGOs run. These provide a critical knowledge base and institution-building capacity at the national level, crucial to the effective implementation of international standards. The recent establishment of international criminal tribunals for Yugoslavia and Rwanda, in response to gross and systematic violations of human rights in situations of armed conflict, has contributed to the development and enforcement of international law for such violations. They provided the momentum to the establishment of the Permanent International Criminal Court, which has the potential to play an important role in the prosecution of perpetrators of gross violations of human rights. It is not only human rights organs that have made a significant contribution. For example, the predecessor of todays Organisation for Security and Cooperation in Europe made a major contribution during the Cold War, and today the OSCE is pursuing human rights goals within its framework. The European Union has also made an important contribution to the international law of human rights within the framework of European law, with a direct and expanding impact on national law and practice. Finally, many NGOs work in the field of human rights. Many implementation procedures would not exist or operate in their present form but for their contribution. Usually it is NGOs which activate these procedures and support victims in their efforts to attain redress through international channels. 10

Andrew Byrnes is Director of the Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong

News and Developments, cont.

IACm appoints new special rapporteurs

uring its 100th session, which concluded on 13 October 1998, the InterAmerican Commission on Human Rights appointed Dr. Helio Bicudo of Brazil to serve as Rapporteur on the Rights of the Child. Dr. Bicudo will be responsible for examining the situation of childrens rights in the Americas and for reporting to the Commission on the topic. The position was created in part to address the fact that the UN Convention on the Rights of the Child does not include an enforcement mechanism.
In this last session the Commission also named Dr. Santiago Canton, an Argentine national, to serve in the recently created position of pecial Rapporteur on Freedom of Expression. Dr. Canton will be responsible for monitoring the protection of freedom of expression and will prepare annual reports to the Commission and the OAS General Assembly on the topic. The rapporteur will also be responsible for assisting the Commission in examining complaints alleging violations of freedom of expression.

With thanks to Kelli Loftman of CEJIL, and Mrta Pardavi of the Hungarian Helsinki Committee, for their contributions to News & Developments

(1998/9) 12 INTERIGHTS Bulletin

Economic and Social Human Rights, the Universal Declaration and the New Millenium: What prospects for change?
J Oloka-Onyango

s we simultaneously commemorate fifty years of the Universal Declaration of Human Rights (UDHR) and approach a new millennium, have economic and social human rights finally come of age? Judging simply by the recent spate of workshops and conferences - Cape Town to Maastricht; Abidjan to Toronto - and the pronouncements and literary product of a host of prominent individuals, international agencies and institutions, one would certainly believe they have. Or is it simply that economic and social rights are the flavour of the month - back on the scene only in rhetorical fashion, but a long way from concrete realization and enforcement? Are the international community and individual states fully willing to accord economic and social rights the prominence long given to the better-known civil and political rights? Is humankind genuinely prepared to address seriously the right to health care, inadequate shelter, starvation, illiteracy and work discrimination? Given the history of this category of rights, one would not be remiss in believing that the current spate of activity is but a flash in the pan. In other words, business will resume being normal, ie the flagrant violation and non-respect of a category of rights that is central to the holistic existence of human beings will continue. But what has that history been, and what can we learn from it?
was essentially the ideological standoff of the Cold War that produced American international hostility to rights that had long been given judicial respect and enforcement domestically. Ironically, the demise of the Iron Curtain has not produced a fundamental shift in policy or practice over this category of rights. If anything, under the impetus of globalization and the extremities of laissez faire capitalism, the tendency has been towards their even further marginalization. What of the situation elsewhere? Popular belief is that the quest for the realization and enforcement of economic and social rights is the cherished goal of the countries of the developing south - Latin America, Africa and Asia. The reality is quite the reverse. Even for those countries which are most vociferous in proclaiming their support for economic and social rights - oftentimes declaring them the precursor to the observation of civil and political rights - the ultimate excuse is never long in coming: But, we are too poor to guarantee such rights! they proclaim. The paradox is clear: everybody claims to seek their realization, but nobody really wants to pursue their effective implementation. The US is thus not the only culprit in running away from ensuring that

economic and social rights are given effective realization and enforcement. Some of the most flagrant violators of civil and political rights have done even worse in the arena of denying their people the realization and enforcement of economic and social rights. Just as the violation of the former category is intrinsically a political matter, so too is the failure to accord greater respect to economic and social rights a reflection of the absence of political will and action. Against the above background, the distance that economic and social rights have traveled since the promulgation of the UDHR can be viewed at essentially three levels - the international, the regional and the national. The latter two would require a much more extensive examination than is possible here. Note must nevertheless be taken of the encouraging case law of the European Social Charter, and a number of judgments under the Inter-American Court, both of which give energy to the quest for their recognition and realization. The African Charter on Human and Peoples Rights provides many interesting dimensions to the issue, but the stark fact is that the Commission entrusted with its implementation has paid scant attention to this category of rights. The Asian continent lacks a regional framework for the enforcement of all categories of human rights, and its establishment is presently the subject of intense discussion. At the national level, the emerging jurisprudence of countries like India, South Africa and the Nordic region give some hope that the domestic implementation of economic and social rights will some day be at a level with that of civil and political rights. Finally in this respect, although nongovernmental actors in this area are yet to make the same impact as their counterparts who oversee the implementation of civil and political rights, their contribution has been critical. The first organizations explicitly targeting the realization of economic and social rights only came into existence in the early 1990s, but are gradually ensuring that economic and social rights 11

The quest for greater observance of the realization of economic and social rights has long been plagued by the arguments of nonrealization, non-justiciability, and nonenforceability. Such rights - it is argued - are incapable of the same measure of enforcement as rights in the civil and political arena: How do you take somebody to court to enforce your right to food? the skeptics ask. Ironically, economic and social rights were internationally recognized and enforced even before the promulgation of the UDHR. As Stefanie Grant points out, such rights were (the first to be incorporated into international law as far back as 1919 with the establishment of the International Labour Organization (ILO).1 Despite the contemporary opposition to the observance of economic and social rights from the government of the United States of America, certainly the 1930s New Deal and the whole creation of the welfare state were expressions of a strong commitment to their realization and enforcement. The history of the struggle over racial and sexual nondiscrimination in the right to education, just and fair conditions of work and womens human rights to healthcare in the US, speak to a starkly different reality from the present. We are thus left with the conclusion that it (1998/9) 12 INTERIGHTS Bulletin

have their day in court. The Academy is not lagging behind. Pivotal in developing the conceptual and normative respect for economic and social rights have been the two Dutch conferences - Limburg in 1986, and Maastricht in 1997 - which brought together activists and academics first to clarify the concept of progressive realization, and secondly to introduce a violations approach to the question. The womens human rights movement has likewise been fundamental in breaking down the barrier between the two categories of rights, particularly with respect to its attention to the right to health, non-discrimination, conditions of work, and education. In the international context, the promulgation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966 and its entry into force a decade later are important milestones to recall. Emerging from these developments was the establishment of the Committee on Economic, Social and Cultural Rights (CESCR), which since 1986 has emerged to become (...one of the most well-developed reporting mechanisms to be found in the UN human rights treaty system.2 As we celebrate 50 years of the UDHR, a great deal of credit must be given to the Committee for radically reconstituting the reporting procedure under the Covenant, and for ensuring the necessary international attention to economic and social rights. The Committee has been transformed from a mere international talking-shop into a quasi-judicial body acting to make states broadly account for their commitment to the rights contained in the Covenant. The Committee is also the intellectual driving force behind the draft Protocol to the Covenant that would introduce an individual complaints procedure ultimately bringing the international enforcement of these rights onto the same plane as civil and political rights. The work of the Committee has been buttressed by the intellectually vigorous and comprehensively-reported studies in the late 1980s and early 1990s of the Special Rapporteur on the subject in the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. These studies have provided a firm basis upon which both this body and others have been able to create standards and influence general debates on the subject of economic and social rights in the international arena. The Sub-Commission continues to produce serious studies on the topic and has recently moved one step further in the process of standard-setting by providing at its last (fiftieth) session for the 12

establishment of a Social Forum in which the subject of economic and social rights can be critically engaged. The story within the UN specialized agencies is a decidedly more mixed one. The ILO has provided the most far-reaching articulation of international standards and enforcement measures for the realization of the right to work and the improvement of working conditions. UNESCO has attempted to address the right to education, and particularly the issue of sexual discrimination; the World Health Organization (WHO) and HABITAT have also done commendable work in their respective areas of specialization - human health and shelter. However, many of these agencies do not consider their work to be rights-based. Rather, they aver, it is development work in which they are involved. The distinction may be fine, but the implications are quite distinct, particularly if one considers the issue of enforceable state obligations. With respect to two of the most important international actors - the United Nations Development Program (UNDP) and the Bretton Woods Group - the story is even more complex. UNDP pioneered the reformulation of international social and development analysis with the introduction of the concept of Sustainable Human Development (SHD). In some ways, the concept amounted to a subtle avoidance - even a smokescreen - of engagement with the human rights issues entailed in the development arena. The omission was made good when in early 1998 UNDP emerged with a new policy framework for integrating SHD with human rights. However, the framework is still tentative and lacks many critical components of an holistic approach to the issue; much more thus needs to be done. The World Bank and the International Monetary Fund (IMF) soldier on in increasing oblivion to the human rights impacts of their activities, with the former paying only minimal lip-service respect to the ideal. The latter stoically refuses to be drawn on the issue, even as the policies of structural adjustment wreak havoc on living standards and the implementation of basic human rights. Further undermining the international drive towards progressive realization of economic and social rights are the institutional mechanisms that are daily being established to promote international trade and investment, among them UNCTAD and the WTO. The pattern is repeated in the recently-debated Multilateral Agreement on Investment (MAI). Promulgated under the aegis of the Organization of Economic Cooperation and Development (OECD), the MAI portends an

even greater threat for the global realization of economic and social rights. In the words of Kothari and Krause, Essentially, the MAI seeks to codify the rights of transnational investors over the rights of workers, consumers, communities and the environment.3 In short the MAI trumps human rights in favour of the rights of investors. The vanguard of the contemporary process of globalization and thus the biggest threat to the realization of economic and social rights remains the ubiquitous and omnipotent transnational corporations (TNCs) that continue to elude effective and comprehensive sanction - either at the international or the domestic level. Immensely powerful and politically well-connected, the actions of TNCs are in dire need of control if the ideals of the UDHR and the ICESCR are to be given full expression. If the concept of the global market place is to continue to be enjoy pride of place, it must be reciprocated by a global respect for the rights of the consumer; TNC rights cannot supersede the basic rights of the vast majority of humanity. The political implications of such inaction as in the case of the debacle over the Ogoni oil protests - can no longer be ignored. Is there any hope that the next halfcentury of the UDHR will be different for economic and social rights? The picture is murky, but there are certainly a number of positive developments across the horizon; the discourse of economic and social rights is becoming much more common; domestic jurisdictions and courts are developing jurisprudence that will help to give more coherence and cogency to the field; human rights organizations are increasingly becoming more aware of the necessity to adopt an holistic (integrated and interconnected) approach to the observation of human rights, and many others are establishing groups exclusively devoted to the issue. Finally, if the lessons of the recent Asian economic miracles are to be truly taken to heart, they are that we ignore the quest for economic and social rights to our peril.

J Oloka-Onyango is Dean of the Law Faculty, Makerere University, Kampala, Uganda

1 Grant, Stefanie, The Social and Economic Human Rights of Non-Aliens, East African Journal Of Peace & Human Rights, Vol 5, No 1 (1998), 76-77. Craven, Matthew, Towards an Unofficial Petition Procedure: A Review of the Role of the UN Committee on Economic, Social and Cultural Rights, in Drzewicki, K., et al, Social Rights as Human Rights: A European Challenge (Turku/bo, 1994), 91. Kothari, Miloon & Tara Krause, Human Rights or Corporate Rights? The MAI Challenge, Tribune des Droits Humains, vol 5, nos1-2, (1998).

(1998/9) 12 INTERIGHTS Bulletin

International Law Reports

hese reports relate to judgments of the European Court of Human Rights and views of the United Nations Human Rights Committee. A wide range of issues are addressed and include a number of significant points concerned with the scope of the fair hearing guarantee: the nature of the civil right to which this obligation arises (Georgiadis v Greece, Neigel v France, Paskhalidis v Greece and Pauger v Austria); the need to disclose evidence to a party (Foucher v France and Thomas v Jamaica); the circumstances in which an oral hearing is required (Pauger v Austria and Stallinger and Kuso v Austria); the limits on the anonymity of witnesses (Van Mechelen v The Netherlands); the approach to be adopted where a jury verdict is disputed (Young v Jamaica); the need for legal aid at all stages of proceedings where the death penalty is involved (LaVende v Trinidad and Tobago); the implications of courts making proprio motu rulings (Georgiadis v Greece); the need to comply with judgments (Hornsby v Greece); and the problem of undue length in the conduct of proceedings (Guillemin v France and Paskhalidis v Greece). Family life issues considered include: the possibility of a transsexual being recognised as the parent of a partners child (X, Y and Z v United Kingdom); and the effect of deportation (Bouchelkia v France). Prolonged detention on death row is still not seen by the Human Rights Committee as objectionable in itself (Bickaroo v Trinidad and Tobago and LaVende v Trinidad and Tobago) but both the failure to respond to a need for medical treatment (Williams v Jamaica) and the loss of it for a dying

person as a result of deportation (D v United Kingdom) is considered to be inhuman. In addition there is close scrutiny of the consequences of deportation for the person concerned (H L R v France and T v Australia) and the latter case indicates a higher level of responsibility for parties to the Second Optional Protocol to the International Covenant on Civil and Political Rights. There is an instance of excessive pre-trial detention (Muller v France), recognition that such detention should be deducted from the sentence to be served (P L v France) and a surprising example of arrest where no offence existed (Lukanov v Bulgaria). The private life issues addressed concern access without consent to medical records in support of a prosecution (Z v Finland) and the acceptability of sado-masochistic practices (Laskey, Jaggard and Brown v United Kingdom). Questions of compensation considered relate to the promptness of payment following expropriation (Guillemin v France), the need to pay interest on awards made by the European Court of Human Rights (Hentrich v France) and assessment where speculative losses are involved (Pressos Compania Naviera S A v Belgium). In addition the acceptable scope of certain disqualifications on standing for parliamentary office is examined (Gitonas v Greece) and confirmation is given to both the inadmissibility of a State monopoly on broadcasting (Telesystem Tirol Kabeltelevision v Austria) and over-restrictive regulation of places of worship (Pentidis v Greece). Jeremy McBride
16 37 31 20 32 17 38 22 24 40 33 14 23 Telesystem Tirol Kabeltelevision v Austria Van Mechelen and Others v The Netherlands X, Y and Z v United Kingdom Z v Finland

Cases Reported
European Court of Human Rights
Bouchelkia v France D v United Kingdom Foucher v France Georgiadis v Greece Gitonas and Others v Greece Guillemin v France Hentrich v France (Interpretation of the judgment of 3 July 1995) H L R v France 26 30 19 18 34 39 14 29

Hornsby v Greece Laskey, Jaggard and Brown v United Kingdom Lukanov v Bulgaria Mantovanelli v France Muller v France Neigel v France Pardo v France (Revision)(Merits) Paskhalidis and Others v Greece Pauger v Austria Pentidis and Others v Greece P L v France Pressos Compania Naviera S A and Others v Belgium (Art 50) Stallinger and Kuso v Austria

16 25 27 35

United Nations Human Rights Committee

Bickaroo v Trinidad and Tobago LaVende v Trinidad and Tobago Thomas v Jamaica T T v Australia Williams v Jamaica Young v Jamaica 29 22 20 33 28 21

Abbreviations: American Convention on Human ACHR: Rights; AfChHPR: African Charter on Human and Peoples Rights; AfCmHPR: African Commmission on Human and Peoples Rights; BHRC: Bosnian Human Rights Chamber; BHRO: Bosnian Human Rights Ombudsperson; CAT: Committee Against Torture; CERD: Committee on the Elimination of Racial Discrimination; COM: Committee of Ministers of the Council of Europe; CPT: European Committee for the Prevention of Torture; CRC: Convention on the Rights of the Child; EAPPP European Agreement releating to Persons Participating in Proceedings of the European

ECJ: ECmHR: ECtHR: ECHR ECPT:

GCSR: GFA:

IACmHR: IACtHR: ICCPR:

Commission and Court of Human Rights European Court of Justice; European Commission of Human Rights; European Court of Human Rights; European Convention on Human Rights; European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; Geneva Convention on the Status of Refugees General Framework Agreement for Peace in Bosnia in Herzegovina; Inter-American Commission on Human Rights; Inter-American Court of Human Rights; International Covenant on Civil

and Political Rights; International Covention on the Elimination of All Forms of Racial Discrimination; ICJ: International Court of Justice; OAS: Organisation of American States; Reg: Regulation; ROP: Rules of Procedure; SOP: Second Optional Protocol to the ICCPR UNCAT: Covention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; UNHCR UN High Commission for Refugees UNHRC: UN Human Rights Committee. UNSMRTP: UN Standard Minimum Rules for the Treatment of Prisoners ICERD:

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COMPENSATION
Assessment

- experts inappropriate where loss ensuing from violation not yet established - ECHR Art 50

applicant could be taken into account but its claim could not be granted since (a) no information or supporting documentation had been supplied with respect to whether the sum claimed had been actually and necessarily incurred and was reasonable as to quantum and (b) no indication had been given as to what portion of the total sum related to its representation before the Court. Comment: Unlike a case such as Papamichalopoulos and Ors v Greece (Art 50), ((1995) 9 Interights Bulletin 58), the position of the majority of the applicants was not one where a particular loss (albeit unquantified) was definitely attributable to the violation established; the interference with their property rights resulted from the barring of their civil actions but it was only clear that they had an entitlement to bring them and not that this would inevitably lead to an award of damages that only had to be fixed. The Courts refusal to appoint expert assessors in this case was, therefore, entirely consistent with its longstanding reluctance to make awards where losses were only a speculative consequence of a violation; the request here was for assessors to determine whether civil liability actually existed. Concern about lengthy proceedings to determine whether liability did in fact exist is not a sufficient reason for the Court to assume responsibility for this question; delay should, however, be a factor in the computation of any damages ultimately awarded. See also Guillemin v France (Property, infra). The domestic court rulings declining to apply the 1988 law in respect of the two of the applicants is clearly welcome but it seems excessive to regard this as having effected a restitutio in integrum since there is no indication as to whether liability, and any consequent liability to pay damages, was established; certainly, if liability did exist there could be no restitutio without an award of damages taking account of the delay which the initial violation had effected (see Guillemin v France). On the other hand the Courts award in respect of the twenty-fifth applicant is surprising, notwithstanding the fact that the dismissal of the domestic action meant that a claim could no longer be pursued; there is no indication in the judgment as to the likelihood of such an action succeeding but for the 1988 law and indeed this was disputed by Belgium. It may well be fair to split the liability for the accident between the applicant and Belgium but there is a need for the legitimacy of such an approach to be explained, given, as has already been indicated, the Courts usual reluctance to presume that certain losses would flow from a violation. The Court left open the question of whether it would be compatible with Prot 1 Art 1 to reduce the States liability, if established, in the pending actions. Belgium sought to invoke the Courts willingness to accept less than full compensation for other deprivations of property but, although this might have been an acceptable initial approach to the problem posed by the litigation, it is less tenable where compensation never figures in the interference with the property interests giving rise to the Strasbourg ruling (see Stran Greek Refineries and Stratis Andreadis v Greece, (1996) 10 Interights Bulletin 39). The Courts willingness to restore the case to its list is an important safeguard against inadequate reparation by Belgium. The refusal to make a compensatory award for the interference with the domestic proceedings brought by the applicants is in marked contrast with the approach adopted in the Guillemin case. Although the lack of documentation would have been a sufficient reason to decline to grant costs to the twenty-fifth applicant, the reference to the failure to apportion the costs of the individual applicants seems unduly harsh where the case has effectively been handled on a collective basis and there is no indication that any apportionment had been specifically requested. Interest

PRESSOS COMPANIA NAVIERA S A and OTHERS v BELGIUM (Article 50)

Judgment of the ECtHR, 3 July 1997 The applicants had had their claims for compensation against Belgium and private companies with respect to accidents involving pilot services retrospectively extinguished by a 1988 law. This had been held to be a violation of Prot 1 Art 1 but the application of Art 50 had been reserved ((1996) 10 Interights Bulletin 154). The applicants claimed BEF 1,547,508,885 as the cumulative total (including interest up to 31 May 1997) of the claims which they had as a result of the accidents in issue in the case. They made this claim, despite the Court having stated in the principal judgment that it was for the national courts to determine the beneficiaries and amounts of damages claims generated by the accidents, because they feared that domestic proceedings would be excessively long. They requested the Court to appoint one or three experts to (a) determine whether the accidents in dispute were wholly or partly the result of the pilots negligence, (b) assess whether the amounts claimed were justified and (c) determine what should be awarded for experts, translators and bailiffs costs. The applicants also sought reparation for the non-pecuniary damage caused by Belgiums attitude to them following the Courts judgment. Subsequently two domestic courts in proceedings concerning the sixteenth and twentyfirst applicants declined to apply the 1988 law and the government approved a bill which deleted the retrospective effect of the 1988 laws provisions and provided for the possibility of limiting the amount of liability in respect of claims that had already arisen, other than where a deliberately tortious act had been involved. The third-party action against Belgium brought by the twenty-fifth applicant - which had been ordered by an appeal court to pay BEF5,864,679 plus statutory interest to 31 May 1997 for damage to a harbour jetty - had been finally dismissed pursuant to the 1988 law, the justice minister having failed to exercise his power to refer the case to the cassation court. The Court held: (1) that, although it had previously appointed experts where land had been expropriated, their remit had been confined to valuing the disputed land; (2) that in this case, before damages could be assessed, liability for each accident had to be determined and the beneficiaries and compensation due had to be identified but, although that was a task for the national courts, it could verify whether the outcome of the national proceedings and their length satisfied Art 50; (3) that the decisions by two domestic court not to apply the 1988 law, provided that they became final, had effected a restitutio in integrum in respect of the sixteenth and twenty-first applicants; (4) that it was not its task to rule in abstracto on the compatibility of provisions of a bill with the ECHR but Art 6 precluded any interference by the legislature with the administration of justice designed to influence the judicial determination of disputes; (5) that it was not appropriate to apply Art 50 to the applicants, with the exception of the twenty-fifth applicant, until the domestic courts had given a final ruling in the disputes in question and the case concerning them should, therefore, be struck out of the list; (6) that it reserved the power to restore the case to the list if necessary; (7) that the twenty-fifth applicant was, however, entitled to just satisfaction as the consequences of the violation had not been eradicated with respect to it; (8) that, although the amount of damage was not disputed, the apportionment of liability was uncertain and it was reasonable for Belgium to bear one half of the accident resulting from the accident concerned; (9) that the twenty-fifth applicant should, therefore, be awarded BEF 4,843,019.50 for pecuniary damage plus statutory interest to run from 31 May 1997 to the date of settlement; (10) that the present judgment afforded the twenty-fifth applicant sufficient reparation for any non-pecuniary damage sustained; (11) that, in view of holdings (5) and (7), only costs incurred by the twenty-fifth

- not required for delayed payment without express order - ECHR Art 50

HENTRICH v FRANCE (Interpretation of the judgment of 3 July 1995)

Judgment of the ECtHR, 3 July 1997 H had been unable to mount an effective challenge to the pre-emption of her property by the revenue and in July 1993 the Court had held this to be a violation of Art 6(1) and Prot 1 Art 1((1995) 9 Interights Bulletin 135). She was awarded FRF 56,075 in that judgment for costs and expenses. Two years later she was awarded (a) FRF 800,000 for pecuniary damage, (b) FRF 20,000 for costs and expenses and (c)

14

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statutory interest from December 1994 on the amount awarded in the earlier judgment ((1996) 10 Interights Bulletin 99). H then wrote twice to the COM; in October 1995 to complain about the delay in paying the just satisfaction (payment was made six weeks later) and in February 1996 to claim default interest on the sums awarded. In May 1996 she asked the President of the ECmHR to lodge two requests with the Court; one for interpretation and the other for revision of the July 1995 judgment. The ECmHR did not accept the latter request but asked the Court whether, in view of holding (c) of the July 1995 judgment and of the practice followed by the Court since January 1996, holdings (a) and (b) of that judgment were to be interpreted as necessarily entailing an obligation on France to pay statutory interest in the event of failure to pay the total sum awarded as just satisfaction within the three-month period laid down by the Court. The Court held: (1) that France was required, under the terms of its July 1995 judgment and in accordance with Art 53, to pay H the sums awarded within three months; (2) that, although the sums concerned were paid nearly two months after the expiry of that time limit, it was for the COM to supervise execution of the judgment and the judgment had not stipulated that default interest was to be paid in the event of delayed settlement; (3) that the direction in the July 1995 judgment to pay interest on the costs and expenses involved allowing a request expressly made by H which had not been contested by France and the practice of awarding default interest for delayed settlement was not introduced until January 1996; (4) that, in these circumstances and in view of the clear wording of the judgments operative provisions, allowing the application for interpretation would not be to clarify the meaning and scope of that judgment but rather to modify it in respect of an issue which the Court decided with binding force; and (5) (8-1) that there was, therefore, no matter for interpretation within the meaning of ROP (Court A), r57. Comment: This ruling is to some extent only of academic interest in that the Court now expressly stipulates that interest is payable at a given rate where an award of compensation or costs is not carried out within three months of the judgment concerned. However, in concluding that an obligation to pay interest only arises if it is expressly awarded and that any concern about compliance with the time limit for payment is a matter for the Committee of Ministers, the Court is surprisingly willing to allow the effectiveness of its judgment to be undermined with no consequence for the defaulting State. As Judge De Meyer made clear in his dissent, there is little point in setting a deadline if non-compliance with it is not subject to any penalty. Given that a high rate of inflation could mean that a delayed payment of damages would result in only partial fulfilment of the award, it is disappointing that the Court did not take advantage of the opportunity to give guidance to the Committee as to what should be expected when supervising the execution of judgments. It would certainly not have been inconsistent with general principles to expect interest to be paid by France and such a ruling would not entail an overreaching of the Courts power of interpretation; cf. its ruling in Ringeisen v Austria as to where payment should be made (Ser A No 16). See also the Courts own ruling as to the violation of Prot 1 Art 1 where the interest paid on an award of compensation was considered inadequate; Akkus v Turkey (to be reported in the next issue). Non-pecuniary

Pecuniary

- speculation as to outcome without violation impossible - ECHR Art 50

See FAIR HEARING, GEORGIADIS v GREECE and STALLINGER and KUSO v AUSTRIA, infra.

Pecuniary

- unnecessary where detention deducted from sentence - ECHR Art 50

See LIBERTY AND SECURITY, MULLER v FRANCE, infra.

COSTS
Claim

- dismissal for failure to identify portion attributable to successful applicant - ECHR Art 50

See COMPENSATION, PRESSOS COMPANIA NAVIERA S A and OTHERS v BELGIUM (Article 50), supra. Claim

- dismissal for lack of supporting documentation - ECHR Art 50

See COMPENSATION, PRESSOS COMPANIA NAVIERA S A and OTHERS v BELGIUM (Article 50), supra.

DOMESTIC REMEDIES
Effective

- acknowledgement of compensation right insufficient - ECHR Art 25 - clemency required as regards sentence - ICCPR Art 2(3) - compensation required for illtreatment despite commutation of death sentence - ICCPR Art 2(3) - factual basis for deportation could be reviewed - ECHR Art 13

See PROPERTY, GUILLEMIN v FRANCE, infra. Effective

See FAIR HEARING, LAVENDE v TRINIDAD AND TOBAGO, infra. Effective

See FAIR HEARING, YOUNG v JAMAICA, infra. Effective

See INHUMAN AND DEGRADING TREATMENT, D v UNITED KINGDOM, infra. Effective

- medical treatment required ICCPR Art 2(3)

See INHUMAN AND DEGRADING TREATMENT, WILLIAMS v JAMAICA, infra. Effective

- award for uncertainty and anxiety as to outcome of proceedings ECHR Art 50

See PROPERTY, GUILLEMIN v FRANCE, infra.

- required disclosure of evidence ICCPR Art 2(3) - appeal had no prospect of success - OP Art 5(2)(b)

See FAIR HEARING, THOMAS v JAMAICA, infra. Exhaustion

Non-pecuniary

- award required for detention - ECHR Art 50

See LIBERTY AND SECURITY, LUKANOV v BULGARIA, infra. See PRIVATE LIFE, Z v FINLAND, infra.

See INHUMAN AND DEGRADING TREATMENT, WILLIAMS v JAMAICA, infra. Exhaustion

Non-pecuniary

- judgment sufficient satisfaction - ECHR Art 50

See FAIR HEARING, FOUCHER v FRANCE, GEORGIADIS v GREECE, MANTOVANELLI v FRANCE and STALLINGER and KUSO v AUSTRIA, infra. See LIBERTY AND SECURITY, MULLER v FRANCE, infra.

- appeal served no purpose after commutation of sentence - OP Art 5(2)(b)

See INHUMAN AND DEGRADING TREATMENT, WILLIAMS v JAMAICA, infra. Exhaustion

- compensation was not an alternative solution - ECHR Art 26

See FAIR HEARING, HORNSBY v GREECE, infra.

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 Exhaustion

- favourable outcome could not be reasonably expected - ECHR Art 26 - procedure only decisive for consequential issue - ECHR Art 26 - proceedings additional to slow ones not required - ECHR Art 26

FAIR HEARING
Access

See FAIR HEARING, HORNSBY v GREECE, infra. Exhaustion

to court - appeal precluded by denial of legal aid - ICCPR Art 14(3)(d) & (5)

See FAIR HEARING, HORNSBY v GREECE, infra. Exhaustion

See LAVENDE v TRINIDAD AND TOBAGO, infra.

Access to court - undermined by noncompliance with judgment - ECHR Art 6(1)

See PROPERTY, GUILLEMIN v FRANCE, infra.

HORNSBY v GREECE
Judgment of the ECtHR, 19 March 1997 A and her husband, D, were British nationals and were both graduate teachers of English. In January 1984 As application to the education ministry for authorisation to establish a private school for the teaching of English was refused because only Greek nationals could be granted such authorisation. Two months later she attempted to lodge a second application but the responsible civil servant refused to acknowledge receipt and she was subsequently informed that foreign nationals could not obtain the authorisation to open such a school. Her case was then referred to the ECJ which ruled in March 1988 that the prohibition on European Community nationals from setting up private schools was contrary to the EEC Treaty. Two weeks later A made a further application to open a school and D also made a similar application. These were both refused by the education authority concerned and six months later the authoritys director told them that the question of granting such authorisation to non-Greek nationals was being reviewed by the competent authorities. The applicants wrote to the prime minister in November 1988, requesting that the steps necessary to ensure compliance with the ECJs judgment be taken and in May 1989 the supreme administrative court set aside the decisions of the education authority because the restriction on non-Greek nationals setting up private schools could not apply to the extent that it was incompatible with the EEC Treaty. In July 1989 two associations of private school owners and three such owners lodged a third-party appeal against this ruling and this was dismissed by the supreme administrative court in April 1991. Meanwhile the applicants had lodged two further applications for authorisation, enclosing the May 1989 ruling and emphasising that no further delay in granting authorisation could be justified. They received no reply and their lawyer again applied to the authority in February 1990. The following month the applicants brought a private prosecution against the authoritys director and any other civil servant responsible for deliberate breach of official duty but in October 1993 the criminal court held that, even if there was unlawfulness, the intent element of the offence had not been established. In November 1990 the applicants brought a civil action seeking compensation for the prejudice caused by the refusal to comply with the supreme administrative courts judgments. This was ruled inadmissible in January 1992 on the basis that the dispute came within the administrative courts jurisdiction. In July 1992 they brought an action for damages in an administrative court in respect of the pecuniary and non-pecuniary damage already sustained and that would continue to be sustained until they were granted the authorisation sought. The court held in December 1995 that, although the authorisation had been unlawfully refused and the judgments of the ECJ and the supreme administrative court had not been complied with, the damage claimed had not been sufficiently proved and further investigative measures were ordered. Between April 1990 and May 1993 the education and another relevant minister had not responded to five requests to intervene by either the applicants or the authoritys director. A presidential decree was published in August 1994 recognising the right of EC nationals to establish private schools but requiring applicants to pass a Greek language and history examination unless they had a Greek school leaving certificate. Two months later the minister asked the director to resume consideration of the applicants request in the light of the decree and to keep him informed. The director then sent the applicants a copy of the decree and urged them to take the necessary steps. He wrote again in February 1996, expressing surprise that they had not taken the examination and telling them that it was illegal for them to continue working in a private

EXPRESSION
Broadcasting

- claim settled following abolition of State monopoly - ECHR Art 10

TELESYSTEM TIROL KABELTELEVISION v AUSTRIA

Judgment of the ECtHR, 9 June 1997 T had authorisation to set up a shared aerial for receiving and retransmitting broadcast programmes to subscribers via a cable television network. In January 1989 it sent out to its subscribers some practical information about local life but was informed by the post and telecommunications head office that this was in breach of the regulations. It then unsuccessfully sought authorisations to send out its own programmes via its cable network. The refusal of these authorisations was upheld on appeal and the constitutional court, which had held in 1983 that the right to broadcast was restricted to the State broadcasting corporation as there was no legislative basis for any other body to do so, decided not to give an application by T further consideration on the ground that it did not have sufficient prospects of success. The application was passed to the administrative court which dismissed it, holding that T could not be authorised to send out its own programmes because of the constitutional courts 1983 judgment. T complained about the refusal of permission to send out its own programmes and the Commission found a breach of Art 10. The constitutional court (in the light of Informationsverein Lentia v Austria, (1995) 9 Interights Bulletin 81) subsequently held both the limitation of cable distribution to the retransmission of programmes by others and the transmission of text and a prohibition on commercial advertising to be unconstitutional. Austria indicated that it would pay ATS 200,000 as compensation in respect of claims relating to the present application and T declared the latter settled, waiving any further claims with respect to it. Austria also asked for the case to be struck out and drew attention to the constitutional court rulings and the Commission did not object to the settlement. The Court held: that, having taken note of the friendly settlement reached and there being no contrary reason of public policy, the case should be struck out of the list. Comment: The settlement follows the Courts ruling in the Informationsverein Lentia case that the monopoly over broadcasting enjoyed by State institutions in Austria could no longer be regarded as compatible with Art 10 since genuine public interests could be safeguarded through other means. Its approval was entirely appropriate in view of the internal decisions giving effect to the Courts earlier ruling and the payment of compensation; there was no prospect of Austrian law leading to a similar claim in the future.

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school belonging to a Greek woman. The applicants complained about the refusal to comply with the two supreme administrative court judgments. The Commission, having considered the application and having refused a new request by Greece to declare it inadmissible in accordance with Art 29, found (27-1) a breach of Art 6(1). Greece objected that the six-month time-limit had not been observed and that the applicants had not exhausted domestic remedies as (a) they could have brought actions for damages in the civil courts (for breach of personal rights or reparation for non-pecuniary damage) and sought judicial review of the implied refusal to act on the renewed applications for authorisation of August 1989 and (b) the proceedings in the administrative court were still pending. The Court held: (1) (8-1) that, as the situation complained of began with the refusal to grant the authorisation sought despite the supreme administrative court judgments and continued after the lodging of the application with the 1990 letters to the education minister and the dismissal of the third-party appeal, the first objection should be dismissed; (2) (8-1) that the second objection should also be dismissed since (a) compensation for non-pecuniary damage or an infringement of personal rights, even if awarded, would not have been an alternative solution to the measures required to remedy the impossibility of opening a school despite judicial decisions which had removed every obstacle in that respect, (b) the applicants could not reasonably expect judicial review to bring them the result they sought in view of the authorities persistent failure to reply to their repeated applications and (c) the proceedings in the administrative court were decisive only in connection with the question of an award under Art 50; (3) that the right to a court would be illusory if a domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party and execution of a judgment must, therefore, be regarded as an integral part of the trial for the purposes of Art 6; (4) that this was of even greater importance in the context of an application for judicial review where the litigant sought not only annulment of the impugned decision but also, and above all, the removal of its effects; (5) that it was understandable that there should be concern to regulate, after the judgments, the setting up of the schools in a manner which was compatible with Greeces international obligations and was calculated to ensure the quality of instruction provided; (6) that it was also right and proper that the authorities had a reasonable time to choose the most suitable means to give effect to the judgments concerned; (7) that the applicants had satisfied the only condition laid down for opening a school from the time of the judgments, if not before and it did not appear that they had given up their objective of opening one; (8) (7-2) that, by refraining for more than five years from taking the necessary measures to comply with a final, enforceable judicial decision in this case, the provisions of Art 6(1) had been deprived of all useful effect and there was, therefore, a violation of it; and (9) that the question of the application of Art 50 was not ready for decision and should be reserved, having regard to the possibility of an agreement between Greece and the applicants. Comment: The Court is here developing the significance of the protection already afforded by its earlier recognition that access to a court is an inherent part of the protection afforded by Art 6(1). It had previously considered the time taken for execution of judgments when assessing the acceptability of the overall length of proceedings (Di Pede v Italy, (1997) 11 Interights Bulletin 108) and is now rightly rejecting the suggestion that a final, binding judgment could simply be ignored without being seen as prejudicial to the right to institute proceedings. Non-compliance with a judgment could in some instances entail a deprivation of property rights (see Stran Greek Refineries and Stratis Andreadis v Greece, (1996) 10 Interights Bulletin 39) and that might also have been a justifiable basis for complaint in this case, given that a ruling in favour of the applicants ability to run a school was involved. Indeed this is likely to be a feature of all cases in which Art 6(1) can be invoked since it is only applicable where civil rights are affected. Nevertheless it is undoubtedly important to see this as a discrete issue from that of any property claim since it reinforces the crucial role that the fair hearing guarantee plays in securing the rule of law. The Court was prepared to accept that the administration must be allowed time to work out how to implement a judgment but the delay in the present case went well beyond the bounds of reasonableness and clearly frustrated the ruling secured by the applicants. Judge Pettitis dissent was based on the view

that the supreme administrative court judgments had merely set aside defective decisions and had had no operative effect requiring the grant of authorisation to open a school; he was prepared to envisage a denial of access if there had been a failure to comply with the control process for the implementation of a directive. Judge Valticos, in his dissenting opinion, questioned the need for language teachers to be familiar with Greek history but saw the applicants as having failed to comply with a reasonable condition imposed by the implementing legislation and considered that the latter had afforded them the redress which they had sought. Both dissenting opinions underscore the importance of establishing the precise effect of the domestic ruling in a particular case but do not detract from the significance of this further elaboration of Art 6(1)s requirements. Judge Morenilla, in a concurring opinion, understandably saw the Courts judgment as further invigorating the protection afforded to the individual by judicial review of administrative action. The rejection of the preliminary objections was in accordance with well-established case law. Appeal

delayed by lack of legal aid - ICCPR Art 14(3)(d) precluded by denial of legal aid ICCPR Art 14(5)

See THOMAS v JAMAICA, infra. Appeal

See LAVENDE v TRINIDAD AND TOBAGO, infra.

Civil

right - compensation claim stemming from unprotected interest not covered ECHR Art 6(1)

NEIGEL v FRANCE
Judgment of the ECtHR, 17 March 1997 N, who had a permanent post of shorthand typist with a town council, was given a years leave of absence for personal reasons in March 1983. In November 1983 she was informed that her application for reinstatement (to which entitlement arose under the municipalities code in respect of one of the first three posts falling vacant where the leave did not exceed three years) the following March had been refused and she was granted a renewal of her leave of absence in December 1983. Her application for reinstatement was again refused by the mayor in December 1984 because there was no vacancy and N was told that, if the situation remained unchanged in March 1985, she would be technically reinstated and be on leave of absence without pay until another solution was found. This was so ordered in March 1985 despite N arguing that there was no authority for such action. In June 1985 she again challenged the lawfulness of the action and sought payment of her salary from March 1985. Later that month she disputed an explanation given by the mayor and in November 1985 she again applied for reinstatement. The mayor told her the following month that she could apply to the administrative court. Further requests for reinstatement were refused in March and June 1986. In the second one N threatened to bring proceedings in the administrative court to which the mayor had no objection. In July 1986 she applied for the mayors decision confirming her technical reinstatement to be quashed and for an order to pay the salary that would have been received from March 1985 onwards. Pleadings were filed by both N and the mayor between September 1986 and February 1987. There was a hearing at the end of March and seven days later further inquiries were ordered both as regards the existence of vacancies since March 1985 and the total salary that N would have received from then onwards. Further pleadings were filed by N and the mayor between June and September 1986. The ombudsmans reply to Ns request to intervene was that judgment had already been given and it was served on her three weeks later in November 1987. The court found that all the councils shorthand typists had been taken on before her application for reinstatement in December 1984 and that the fact that the post which N had occupied was still vacant had no bearing on the legality of the mayors decision. She appealed to the conseil dtat in May 1988 and filed a supplementary pleading in September 1988. N enquired about the proceedings in

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February 1989 and she was informed the following month that the case file had been with the councils lawyer since the beginning of February and that her lawyer would be given the same time on its return. The council filed a pleading in March 1989 to which N replied in October 1989. Two months later she learnt that the case had been allocated to a reporting judge the previous September. In February 1990 the council filed a pleading and N wrote to the conseil dtat section secretary expressing concern about the time taken to deal with the case but received no reply. Her mother also wrote to the secretary in March 1990 about conflicting information as to whether the case had been transferred to the government commissioner and about whether the case could be speeded up. Later that month, after N had received the councils latest pleading, her mother again wrote asking why this should have been admitted if preparation of the case had terminated in September 1989. There was a hearing in January 1991 and later that month Ns appeal was dismissed. She complained about the length of the proceedings, the fairness of the proceedings, inhuman treatment and the breach of Prot 7, Arts 2 and 3. The Commission, considering only the first complaint admissible, found (19-10) a breach of Art 6(1). France submitted that the complaint was incompatible ratione materiae with that provision as it concerned civil servants rights. The Court held: (1) that there was a dispute over a right within the meaning of Art 6(1) since the outcome of the challenge to the mayors decision on leave of absence without pay was directly decisive of Ns right to reinstatement; (2) that, as N was essentially seeking reinstatement to the permanent post which she had held previously, the dispute raised by her clearly related to her recruitment, her career and the termination of her service and did not, therefore, concern a civil right within the meaning of Art 6(1); (3) that any award of compensation for the salary that N would have received if she had been reinstated was directly dependent on a prior finding that the refusal to reinstate was unlawful; and (4) (8-1) that Art 6(1) was, therefore, not applicable in this case. Comment: Although this appears to be a case that falls well outside the acceptable length for proceedings for the purpose of Art 6(1), the Courts view that that provision does not cover disputes relating to employment in the public service is well-established; see Massa v Italy, (1995) 9 Interights Bulletin 51. It is a logical consequence of that view that an action for damages based on such a dispute is similarly unprotected by Art 6(1). However, Judge Palms dissenting judgment affords a very cogent invitation for this whole approach to be rethought; she accepts that issues of access to the public service ought not to be covered by that provision but suggests that there is no reason why the established terms of an employee should not be covered, regardless of the employer. The discrepancy is all the more unfortunate given the radically differing approaches to the scope of the civil service in COE countries. She suggests that the ECJs approach of attaching more importance to the actual function performed by an individual would be more helpful when determining such cases but even this perhaps concedes too much if established rights are at stake. Civil

Claim

wrongly precluded by proprio motu ruling - ECHR Art 6(1)

GEORGIADIS v GREECE
Judgment of the ECtHR, 29 May 1997 G was appointed a minister of religion for two prefectures by the central congregation of Jehovahs Witnesses in January 1989. It gave him authority to perform wedding services between persons of that faith and to notify such weddings to the competent registry offices. Later that month the registry offices of the two prefectures were notified about this appointment by their internal affairs director. In September 1991 Gs application to be exempted from military service because of the statutory exemption for all ministers of known religions was rejected on the basis that Jehovahs Witnesses were not such a religion. Three months later his appeal was rejected for the same reason and the recruitment office ordered him to report for duty at a military training centre in January 1992. G presented himself as ordered but refused to join the unit, invoking his status as a minister of a known religion. The commander took the view that G had committed the criminal offence of insubordination and detained him in the centres disciplinary unit pending trial. He was committed for trial in January 1992, his detention order was renewed and he was transferred to a military prison. The following month G instituted proceedings in the supreme administrative court to have the order to report for duty quashed and in March 1992 a military tribunal acquitted him of insubordination on the basis that there was no such act since he was a minister of a known religion and had no obligation to perform military service. G was immediately released but ordered to report for duty the following month at the same centre. He again refused an order to join the military forces and was again charged with insubordination and placed in detention. The tribunal acquitted G in May 1992 because there were doubts as to his intention to commit the offence of insubordination but it ordered that he should not be compensated for the detention pending trial as the latter was due to his own gross negligence. G was released and given leave of absence but ordered to report to the centre later that month. Once again he was ordered to join his unit, charged with insubordination when he refused and detained. In July 1992 the supreme administrative court quashed the 1991 order to report for duty on the ground that Jehovahs Witnesses were a known religion and there was no challenge to Gs evidence that he was one of its ministers. Nearly three weeks later G was provisionally released by a military tribunal and a certificate of provisional exemption from military service was issued. The tribunal acquitted him in September 1992 on the basis that G had no intention of committing the offence but ruled proprio motu that there was no obligation to compensate him for the detention pending trial because it was due to his own gross negligence. A decision regarding the obligation to pay compensation following an acquittal could not be challenged separately. G complained about his detention, the discrimination on account of his religious beliefs, his treatment, the absence of a fair hearing on the issue of compensation and being twice prosecuted for an offence of which he had been previously acquitted. The Commission, having considered only the fourth complaint admissible, found a breach of Art 6(1) but no need to examine whether there was a breach of Art 13. The Court held: (1) that, although no claim for compensation was ever lodged, the usefulness of one was unclear given the tribunals proprio motu rulings and their final character and there was thus a dispute for the purposes of Art 6(1); (2) that, regardless of its characterisation under domestic law, the criminal procedure code created a right for a person having been detained to claim compensation after being acquitted except where he or she was responsible for the detention and decisions regarding the States obligation to pay it could not be challenged separately; (3) that, given the tribunals succinct rulings refusing compensation, it could not be denied that the outcome of these proceedings was directly decisive for establishing Gs right to compensation; (4) that, although detention followed by acquittal were public law issues, the right to compensation was by its very nature of a civil character and this was confirmed by both its typically private law features and the role of the civil courts in deciding the precise amount to be granted; (5) that the question of the application of the codes

right - compensation award under criminal procedure code covered - ECHR Art 6(1) right - pension entitlement from overseas insurance contributions covered ECHR Art 6(1) right - pension from civil service covered - ECHR Art 6(1) right - reinstatement to civil service not covered - ECHR Art 6(1)

See GEORGIADIS v GREECE, infra. Civil

See PASKHALIDIS and OTHERS v GREECE, infra. Civil

See PAUGER v AUSTRIA, infra. Civil

See NEIGEL v FRANCE, supra.

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provision fell, therefore, within the ambit of Art 6(1); (6) that no decision on the question of compensation should have been taken without affording G an opportunity to submit his arguments on the matter and the tribunals rulings proprio motu, which could not be challenged, effectively precluded him from making an application himself; (7) that a procedure whereby civil rights were determined without ever hearing the parties submissions could not be considered to be compatible with Art 6(1); (8) that, although the extent of the duty to give reasons varied with the nature of the decision, the lack of precision of the concept of gross negligence (which involved an assessment of questions of fact) required more detailed reasons than repeating the wording of the provision, particularly since the finding was decisive for Gs right to compensation; (9) that there was also, therefore, a violation of Art 6(1) in this respect; (10) that, in view of holdings (7) and (9), it was not necessary to examine the case under Art 13; (11) that, considering that (a) the complaint under Art 5(1) was not declared admissible and (b) the violation found related to the absence of a fair hearing as regards compensation for Gs detention, his claim for pecuniary damage should be rejected as it could not speculate as to the outcome of the compensation proceedings had he benefited from all the safeguards in Art 6; (12) that the present judgment constituted just satisfaction for any possible non-pecuniary damage; (13) that G should be awarded GRD 750,000, assessed on an equitable basis, in respect of costs and expenses; and (14) that the statutory rate of interest applicable in Greece was 6% per annum. Comment: This ruling maintains the Courts stance that it is a matter of substance and not form which determines whether a particular matter is to be regarded as a civil right for the purposes of Art 6(1). It is irrelevant, therefore, whether a compensation claim is determined in the course of criminal or, as in the present case, public law proceedings. The view that there was a dispute, notwithstanding that no claim had ever been made, amounts to a pragmatic assessment of the situation; the issue before the tribunal was whether G was guilty of the offence and, but for its ruling on the compensation point, he could have requested an award following an acquittal. There was, therefore, at the very least a latent dispute which the ruling resolved contrary to Gs interests. The problem was not the existence of a power for the tribunal, as in this case, to rule proprio motu but that G neither had an opportunity to make submissions before it was exercised nor had any possibility of appealing against the decision taken. The Courts conclusion on this point necessarily means that the resolution of any issue in the course of litigation which effectively closes off a particular claim must be preceded by an opportunity for the parties to make submissions against the proposed course of action. In finding that the reasons for the tribunals ruling were inadequate, the Court continues to develop this facet of the fair hearing guarantee (see Ruiz Torija v Spain, (1996) 10 Interights Bulletin 24) but, although it is clear that the tribunal merely invoked the criterion for refusing compensation specified in the criminal procedure code rather than attempt to isolate the specific aspects of Gs conduct that it considered to be grossly negligent, the importance attached by the Court to the decisiveness of the finding is not particularly helpful; an inadequate explanation at an early stage of the proceedings could be clarified, without prejudice, at a later stage but an Art 6(1) challenge is always going to involve a decision which has in some way become final. The fact that sense cannot be made of a courts use of a broad concept unless it is in some way related to the specific circumstances might be a more appropriate rationale for requiring precision in a judgments reasoning. The view that it was impossible to speculate as to the outcome of a compensation claim seems unduly harsh given the 1992 ruling of the supreme administrative court that ministers belonging to the Jehovahs Witnesses were exempted from military service. Defence

Dispute

- applicability of time limit decisive - ECHR Art 6(1) - formal claim not required - ECHR

See PASKHALIDIS and OTHERS v GREECE, infra. Dispute

Art 6(1)
See GEORGIADIS v GREECE, supra.

Equality of arms - access to case file wrongly denied - ECHR Art 6(1) & (3)

FOUCHER v FRANCE
Judgment of the ECtHR, 18 March 1997 F and his father had been charged with having used insulting and threatening words and behaviour towards public service employees, namely, two game and wildlife wardens. They were summoned to appear before a police court under a direct committal procedure used for minor offences. The criminal procedure code provided that such offences were to be proved by official reports and, where there were no such reports or in support of them, evidence taken from witnesses. Official reports by law enforcement officers and public servants carrying out certain police duties were deemed to be good evidence in the absence of proof to the contrary and the latter had to be established by either written or witness evidence. F decided to conduct his own case (which was permitted by the criminal procedure code) and first his mother, and then he and his father, went to the police court registry to consult the case file and procure copies of the documents in it. On both occasions the prosecutor informed them through a note that copies of official reports could not be issued to individuals except through a lawyer or an insurance company. The court, after a hearing at which F and his father (relying on ECHR Art 6) challenged the denial of access to the criminal file and the refusal of copies of the documents, set aside the proceedings as the rights of the defence had been infringed. It also declared inadmissible applications by the national field sports board and the two game wardens to join the proceedings as civil parties. The public prosecutor and the civil parties appealed against this judgment and a summons was served on F at his home. However, he did not appear at the appeal court hearing and claimed that his mother had been met with the appeal court registrars refusal when she went to obtain information on how to gain access to the case file. The appeal court, after proceedings that were adversarial in the case of Fs father and deemed to be so in the case of F, reversed the first instance judgment and refused the application for the proceedings to be set aside for having violated the rights of the defence. It held that Art 6 did not require that the case file had to be made available to the applicant himself and that F had been informed by the summons both about the offences with which he was charged and the legal provisions concerned. The appeal court, relying on the official report drawn up in February 1991 by the two game wardens and statements made by another hunter, fined F and his father FRF 3,000 each for insulting the game wardens. An appeal by F, but not his father, was dismissed by the cassation court in March 1993. The appeal courts ruling as regards Art 6 was, in particular, upheld. There were no regulations in the criminal procedure code governing consultation of the case file or the release of documents to lawyers except in relation to the investigation. Although there were no particular rules governing consultation of the case file at the registry in police court proceedings, the code did make some provision (requiring the principal prosecutors authorisation) for the release of the documents to the parties and to others. In June 1996 the cassation court held that these had been misapplied where an unrepresented defendant in an unrelated case had been refused access to the case file other than through the intermediary of a lawyer. F complained about not being able to have access to his case file or to obtain copies of the documents in it and the Commission found a breach of Art 6(3) taken with Art 6(1). The Court held: (1) that it was not disputed that the case concerned a criminal charge and Art 6(1) was thus applicable; (2) that it was appropriate to examine the complaint under Art 6(1) and (3) together as the latter paragraph contained specific aspects of the formers fair trial

impeded by non-disclosure of evidence - ICCPR Arts 2(3) and 14(3)(d) - legal aid required throughout death penalty proceedings - ICCPR Art 14(3)(d) & (5)

See THOMAS v JAMAICA, infra. Defence

See LAVENDE v TRINIDAD AND TOBAGO, infra.

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right; (3) that it did not matter that F had never made a request to the principal prosecutor for access to the file and copies of the documents in it since (a) he was denied access by the prosecutor at first instance and an annulment of the proceedings on this ground had been overturned on appeal and (b) the appeal and cassation courts both took it as settled that F had not been able to have access to his case file or to obtain a copy of the documents in it; (4) that, bearing in mind that (a) any possibility of restricting inspection of the court file to a lawyer was inapplicable where the accused exercised his right under the ECHR and domestic law to conduct his own case, (b) Fs committal directly for trial without a preliminary investigation meant that the question of ensuring the confidentiality of the investigation did not arise and (c) the conviction was based solely on the official report, it was important for F to have access to his case file and to obtain a copy of its documents in order to be able to challenge the official report concerning him; (5) that, as F had been unable to prepare an adequate defence and had not been afforded equality of arms, there was a violation of Art 6(3) taken with Art 6(1); (6) that, as regards alleged pecuniary damage, it could not speculate as to the outcome of the proceedings had there not been a violation; (7) that the present judgment constituted sufficient just satisfaction for Fs non-pecuniary damage; (8) that F should be awarded FRF 15,000, assessed on an equitable basis, for costs and expenses less the legal aid already received; and (9) that the statutory rate of interest applicable in France was 3.87% per annum. Comment: It is well-established that a defendant should normally have access to the case file for the preparation of a defence. Although there may be circumstances for restricting inspection of it allowed (see Kamasinski v Austria, Ser A No 168 and Kremzow v Austria, (1995) 9 Interights Bulletin 83), none were applicable in the present case and indeed the need to disprove the official report in order to avoid a conviction made access particularly important. The Court was clearly prepared to accept that denial of access to the case file is a violation of Art 6 that can be waived but there had in fact been a request and in subsequent proceedings the line taken by the domestic fora was that there was no entitlement under the ECHR to see it. The reversal of the cassation courts position will clearly facilitate the implementation of this judgment.

The Committee held: (1) that, in the absence of any explanation from Jamaica, the delay of almost thirty-one months from arrest to conviction and the further three years before the completion of the appeal proceedings were not compatible with the right to be tried without undue delay; (2) that there was, therefore, a violation of Art 14(3)(c); (3) that the denial of legal aid which contributed to the further delay in Ts application for leave to the judicial committee was also a violation of Art 14(3)(d); (4) that, having regard to the fact that (a) it was the professional judgment of Ts lawyer not to call defence witnesses which were available to him and (b) neither T nor the lawyer complained to the trial judge about being unable either to examine these witnesses under the same conditions as witnesses for the prosecution or to examine some witnesses at all, there was no violation of Art 14(3)(e); (5) that, having regard to (a) the absence of any explanation for the failure to make Bs alleged confession available to T or his lawyer and (b) the prosecutors statement about it being considered by Jamaicas privy council, T was denied the opportunity to have enquiries made about the matter and to pursue such legal remedies as might have been available to him in accordance with the constitution or otherwise; (6) that there was, therefore, a violation of Art 14 (3)(d) in conjunction with Art 2(3); and (7) that T should be provided with an effective remedy and, noting the commutation of the death sentence and the fact that he has spent over fifteen years in prison, his release should be considered. Comment: The conclusion regarding the length of the proceedings is consistent with well-established case law, as was the view taken of the failure to call the witnesses (on the latter point see also Young v Jamaica, infra) and the absence of legal aid (see LaVende v Trinidad and Tobago, infra). The Committee understandably regarded the failure to make the confession available as highly prejudicial and the recognition of a duty of disclosure echos the same conclusion reached with respect to the ECHR; see Foucher v France (supra) and Edwards v United Kingdom, (1994) 8 Interights Bulletin 36. Pocar and Lallah dissented on the adverse admissibility ruling with respect to the prolonged detention on death row. They argued cogently that, although there was a consistent (and adverse) case law on this point (see Bickaroo v Trinidad and Tobago, Inhuman and Degrading Treatment, infra), this was an issue that still had to be determined on the merits of the individual case. They also considered that T had substantiated additional circumstances which merited consideration of this complaint, namely, the uncertainty and distress had been intensified by the delays, lack of proper legal representation and confinement on death row. However, it seems improbable that the majority of the Committee would have found a violation of Arts 7 and 10(1) by reference to these circumstances; cf Edwards v Jamaica, (1997) 11 Interights Bulletin 115.

Evidence

- non-disclosure impeded defence ICCPR Arts 2(3) and 14(3)(d)

THOMAS v JAMAICA
Communication No 532/1993, Views of the UNHRC, 3 November 1997 T was arrested for murder in July 1982 and was convicted of this offence at a trial in February 1985. Only one of three witnesses in support of Ts alibi was called to give evidence. He was sentenced to death and his application for leave to appeal was dismissed in January 1987. The appeal court, which treated the application as the hearing of the appeal, issued a written judgment in April 1988. T was denied special leave to appeal by the judicial committee of the privy council in July 1992 and it was submitted that this last delay was due to the failure to grant him legal aid. T claimed that B, another inmate in the prison had confessed (in front of police officers, the prison superintendent and a magistrate) to the murder shortly before his death. He also claimed that the confession had been put into writing but that, although a prosecutor had informed him that Bs statement had been considered by Jamaicas privy council when deciding not to refer Ts case back to the appeal court, efforts to obtain a copy of it had been unsuccessful. T complained about the delays in the judicial proceedings, the absence of legal aid for the petition to the judicial committee, the uncertainty and distress caused by the delays and the lack of proper legal representation, the failure to provide him or his lawyer with a copy of Bs confession statement, the arbitrariness of any execution without a full investigation into that statement and his prolonged detention on death row. His death sentence was commuted in 1995. The Committee found the communication admissible insofar as it raised issues under Arts 6 and 14 but (14-2) not Art 7 in the absence of compelling circumstances in addition to Ts detention on death row.

Evidence

- party should have been able to contribute to preparation of experts report ECHR Art 6(1)

MANTOVANELLI v FRANCE
Judgment of the ECtHR, 18 March 1997 Mr and Mrs Ms daughter, J, died after an infection developed following operations on her thumb. They were convinced that her death had been caused by the excessive administration of a particular drug when she was under general anaesthetic. After being granted legal aid, they applied to the administrative court for an interim order for the appointment of an expert to report on the circumstances surrounding Js death and its causes, as well as instituting proceedings to obtain a declaration that the public hospital concerned was liable. Their application for the appointment of an expert was refused on the ground that this would prejudice the trial on the merits and the requisite urgency for ordering interim measures was lacking. The applicants repeated their application for an expert report after the hospital had filed its defence and the court ruled that one was necessary because the parties disagreed as to the facts and it had not found evidence in the case file to enable it to rule on the merits. The expert was appointed to (a) inspect Js full medical file (in particular reports on an autopsy and by the head of the unit in which she died), (b) describe the treatment that she received, establishing whether her complaint was rare and the

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operations were complex, (c) indicate her chances of recovery, (d) state whether the drug had been used, whether this was in accordance with accepted practice, whether the complications were linked to its use and whether the latter were common, and (e) make all necessary findings and interview all the relevant witnesses. He examined various medical files and interviewed five members of the hospitals staff, including the surgeon who had performed the last operation on J and the anaesthetist. His report stated that (a) the injury to Js thumb was serious because of delay in seeking treatment and had resulted in unusually complex and long treatment, (b) J had been transferred to a specialist unit when the infection developed but would have survived but for this complication, (c) there was no absolute certainty that the onset of the infection was directly linked to the drug and, although there must have been a susceptibility to the former, there were no warning signs of intolerance calling into question the use of the latter and (d) a reaction peculiar to J as an individual must have been responsible for her death. In a subsequent pleading the applicants alleged that neither they nor their lawyers had been informed of the dates of the steps taken by the expert and that his report referred to documents which they had not been able to inspect. They submitted that, as there had been a breach of the adversarial principle, the report should be set aside and a new one ordered. The hospital filed a pleading in reply and the court subsequently accepted that the applicants should have been informed of the dates, as was required by the administrative courts code, but that they had not disputed the facts appearing from their own evidence and the report. Submissions by the parties during the preparation of a report were required by the code to be recorded in it. The court found that the infection could not be attributed to the administration of the drug and that gross medical negligence could not be imputed to the hospital. The applicants then asked the administrative appeal court to set aside this judgment and the experts report but it found that the irregularity in the latters preparation did not preclude its use and that the applicants should have specified the points on which they considered further inquiries were needed. An application for legal aid with the conseil dtat was rejected on the basis that the grounds for an appeal on points of law were not sufficiently strong and no such appeal was brought. The applicants complained about the preparation of the expert report and the Commission (Second Chamber) found (10-3) a breach of Art 6(1). The Court held: (1) that, although compliance with the adversarial principle required that the parties be able to participate fully in the proceedings before the tribunal, it did not follow that they must in all instances be able to attend the interviews held by a court-appointed expert or be shown the documents he had taken into account; (2) that, as the ECHR did not as such lay down rules on evidence, it could not be excluded as a matter of principle and in the abstract that evidence obtained in breach of domestic law might be admitted; (3) that it was for national courts to assess the evidence which they have obtained and the relevance of any which a party wishes to have produced but it then had to be ascertained whether the proceedings as a whole, including the way in which the evidence was taken, were fair; (4) that it was not disputed that the purely judicial proceedings had complied with the adversarial principle; (5) that the failure to comply with the requirement that parties be informed of the dates of the steps taken by the expert could not on its own put the proceedings in issue seriously in doubt but, although the applicants could have made submissions to the administrative court on the content and the findings of the report after receiving it, the report pertained to a technical field which was not within the judges knowledge and was likely to have a preponderant influence on their assessment of the facts; (6) that, under such circumstances and in the light of the refusal of the applications for a fresh expert, the applicants could only have expressed their views effectively before the expert report was lodged; (7) that no practical difficulty stood in the way of their being associated in the process of producing the report which involved interviewing witnesses and documents; (8) that the applicants, by being prevented from participating in the interviews, were not able to cross-examine the hospital employees interviewed even though they could legitimately have been expected to give evidence along the same lines as the hospital, the opposing side in the proceedings; (9) that the applicants only became aware of the documents taken into consideration by the expert once the report had been completed and transmitted; (10) that,

as the applicants were thus not able to comment effectively on the main piece of evidence, the proceedings were not fair and there was a violation of Art 6(1); (11) that the judgment was sufficient satisfaction for the applicants non-pecuniary damage; (12) that, as to pecuniary damage, it could not speculate as to the outcome of the proceedings had there not been a breach of the ECHR; (13) that the applicants should be awarded FRF 25,000, assessed on an equitable basis, for costs and expenses before the Strasbourg institutions; and (14) that the statutory rate of interest applicable in France was 3.87% per annum. Comment: The Court is generally reluctant to interfere with a domestic courts assessment of the evidence but it will do so where this has an impact on the overall fairness of the proceedings (Schenk v Switzerland, Ser A No 140). It is of particular importance that parties should always have an effective opportunity to comment on the evidence being considered by a court and, although in many instances this would be satisfied by the possibility of making submissions after an experts report has been received, the report in this case concerned the central issue to be determined by the court. It is not surprising, therefore, that the Court extended the applicability of the adversarial principle to the very preparation of the report, particularly as it involved interviewing witnesses who might have some responsibility for the tragedy. In effect the expert was gathering evidence which might be contested but his assessment of it was likely to prove conclusive in view of the courts own lack of technical expertise. This conclusion is all the more compelling given that the possibility of a party being able to participate in the preparation of the report was actually a specific requirement of domestic law. The latter point, as well as domestic case law as to the consequence of not observing this requirement, was emphasised by Judge Jambrek in his concurring opinion when concluding that it was not the applicants responsibility to contest the report after it had been sent to the domestic court. Judges Thr Vilhjalmsson, Palm and Levits dissented on the basis that the assessment of the evidence was for that court and that the applicants had had more than three years to comment on it and challenge its findings. However, the effectiveness of this might well have been undermined by not being present when the expert heard the testimony of the witnesses involved in the tragedy. Judge Pettiti also dissented, partly because the applicants did not give any grounds for their request for the experts report to be set aside and partly because he considered that the domestic court was still in a position to make its own assessment of the evidence. The former diminishes the significance of a specific requirement in the procedure code and the latter does not attach sufficient significance to how the preparation of an experts report can determine what evidence will be before the court. Independence

and impartiality not compromised by civil servants on panel ECHR Art 6(1)

See STALLINGER and KUSO v AUSTRIA, infra.

Jury - refusal to examine disputed verdict acceptable - ICCPR Art 14

YOUNG v JAMAICA
Communication No 615/1995, Views of the UNHRC, 4 November 1997 Y and three co-defendants were convicted of murder in April 1990 and sentenced to death. Y was represented by a legal aid lawyer and his defence was directed solely at the credibility of eyewitnesses and their ability, given the lighting conditions, to identify Y and the co-accused correctly. No witnesses were called to testify on his behalf even though three individuals had signed an affidavit stating that they were with him in a bar at the material time. At the end of the hearing the jury had retired but twice informed the judge that it was unable to reach a unanimous verdict. On both occasions the judge had stated that he could not accept a majority verdict in a murder case and on the second one he instructed its members to discuss the matter to see if a unanimous verdict could be reached. After the jury had retired again for nearly an hour, the foreman announced that it had reached a unanimous verdict of guilty. Two jury members later swore affidavits that the

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unanimous verdict returned by the foreman had been false. The appeals of Y and the co-accused, based on the judges directions to the jury, were dismissed in March 1992. The alleged material irregularity concerning the unanimity of the jurys verdict was not raised because it was thought that a judgment of the judicial committee of the privy council in an earlier case (Nanan v The State) prevented the appeal court from questioning and investigating the jury deliberations. However, although it was raised in an unsuccessful petition to the judicial committee for special leave to appeal in January 1995, the committee refused to examine the matter because of the precedent in Nanan. The offence of which Y was convicted was subsequently classified as a capital offence under a law which determined whether capital punishment would still be applicable to those on whom it had been imposed following a conviction for murder. He submitted that the additional grounds on which this classification was based had not been the subject of any determination of fact at the trial and that he had not had an opportunity to examine effectively any of the witnesses whose evidence might have had a bearing on whether these grounds existed. He also submitted that he had only been allowed few visitors, was not permitted to work or educate himself and had remained while on death row in a cell measuring two square metres. In addition he alleged that prison warders had stolen his personal effects, assaulted him and repeatedly soaked his bedding. Y complained about the irregularities in the course of the jurys deliberations, the failure of his lawyer to call any witnesses for the defence, the classification of his conviction as capital without a trial of the material issues, the absence of any presumption of innocence in respect of the required additional facts for this classification, his prolonged detention on death row, the conditions of his detention and the ill-treatment by prison warders. His death sentence was commuted in 1995 and Jamaica conceded the admissibility of the communication. The Committee held: (1) that, as Y did rely on the claims under Arts 6, 7 (length of detention on death row) and 15 following the commutation of his sentence, there was no need to address those issues; (2) that the claims relating to Arts 7 and 14 were admissible; (3) that, as Jamaica had not responded to Ys claims about his ill-treatment by the prison warders, it was concluded that he had been subjected to degrading treatment in violation of Art 7; (4) that it would not review the findings of the appeal court and the judicial committee with respect to the judges instructions to the jury in the absence of any indication that their conclusions were arbitrary or otherwise amounted to a denial of justice; (5) that, considering that (a) there was no indication that the trial itself was unfair and (b) jurors had not objected to either the judges instructions or to the announcement of a unanimous verdict, the judicial committees refusal to reconsider its conclusions in the Nanan case was not a violation of Art 14 even though the Committee was not bound by a State partys jurisprudence; (6) that, as it was not apparent that the decision of Ys lawyer not to call the alibi witnesses was not made in the exercise of his professional judgment, the failure to call them could not be attributed to Jamaica and there was no basis for a finding of a violation of Art 14(3)(e); and (7) that Y was entitled to an effective remedy and, although the commutation of his death sentence was welcome, he was entitled to compensation for the ill-treatment on death row. Comment: The Committee has adhered to the general reluctance of international tribunals to interfere with the findings of appellate courts as to the conduct of a trial unless there was very powerful evidence that the latter had been unfair. It is doubtful, however, whether this ruling can be taken as an indication that it would never be prepared to go behind a jury verdict even though a rule to this effect at the domestic level was the basis of the unsuccessful appeal. The ruling should probably be regarded as restricted to the particular circumstances and there may well be cases where there are more plausible reasons for doubting that a jury had acted with propriety. As Bhagwati made clear in an individual opinion, it is doubtful whether the failure of the two jurors to dispute the foremans claim as to a unanimous verdict was the wish to get home; this does not seem compelling where capital punishment was involved. The emphasis laid on the fact that the Nanan decision was not binding on the Committee would certainly suggest that greater pressure to unanimity or evidence of racism might be reasons why an inquiry should be made into a jury verdict and indeed that the failure to make such an inquiry would itself be a denial of a fair hearing

(cf Remli v France, (1997) 11 Interights Bulletin 52), notwithstanding the confidentiality generally acknowledged as appropriate for jury deliberations (see Pullar v United Kingdom, (1997) 11 Interights Bulletin 14). The conclusion with respect to the failure to call the alibi witnesses follows well-established case law, as does the willingness to accept submissions about ill-treatment in the absence of an official response. The view that compensation should be paid is a welcome acknowledgement that commutation is not a sufficient response for human rights violations merely because the victim has been sentenced to death.

Legal

aid required throughout death penalty proceedings - ICCPR Art 14(3)(d)

LAVENDE v TRINIDAD AND TOBAGO

Communication No 554/1993, Views of the UNHRC, 29 October 1997 L was convicted of murder and sentenced to death in July 1975. His appeal was dismissed in November 1977. He did not petition the judicial committee of the privy council for special leave to appeal after his application for legal aid for this purpose was refused by the national security minister. On 30 September 1993 a warrant for his execution six days later was read to him but this was stayed after a constitutional motion had been filed on his behalf. L complained about his confinement to death row since his conviction, his execution after so many years on death row and the denial of legal aid for his petition to the judicial committee. His death sentence was commuted to life imprisonment in December 1993. The Committee found the communication admissible insofar as it raised issues under Arts 7, 10(1) and 14(3)(d) & (5). The Committee held: (1) (10-6) that, although the time spent by L on death row was unprecedented and was a matter of serious concern, length of detention on death row was not per se a violation of Arts 7 and 10(1); (2) that there were no circumstances connected with Ls detention over and above its length which could lead to a conclusion that there had been a violation of those provisions; (3) that it was imperative that legal aid be available to a convicted prisoner under sentence of death at all stages of the legal proceedings; (4) that, as the refusal of legal aid effectively denied L legal assistance for a further stage of constitutionally provided appellate judicial proceedings, there was a violation of Art 14(3)(d); (5) that, as this refusal also prevented L from having his conviction and sentence reviewed by a higher tribunal, there was also a violation of Art 14(5); and (6) that L was entitled to an effective remedy which should include a measure of clemency further to the commutation of his death sentence. Comment: This ruling is an important reaffirmation of the critical importance of the availability of legal aid both for any aspect of proceedings relating to the imposition of the death penalty (see Henry v Jamaica, (1991) 6 Interights Bulletin 65)) and for the effectiveness of an appeal involving a significant penalty (see Hill v Spain, (1997) 11 Interights Bulletin 100 and, in respect of the ECHR, Boner v United Kingdom, (1996) 10 Interights Bulletin 20). See Bickaroo v Trinidad and Tobago (Inhuman and Degrading Treatment, infra) on the Committees approach to prolonged detention on death row.

Length

of civil proceedings excessive - ECHR

Art 6(1)
See PROPERTY, GUILLEMIN v FRANCE, infra.

PASKHALIDIS and OTHERS v GREECE

Judgment of the ECtHR, 19 March 1997 P and the ninety-two other applicants were Egyptian or Turkish nationals of Greek origin. They, or in some cases their spouses, had worked as private-sector employees in Egypt or Turkey but had been obliged to leave those countries and had settled permanently in Greece between 1960 and 1980. On various dates between April 1973 and September 1985 they applied or renewed applications to social security bodies for

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recognition of their entitlement to an old-age, invalidity or survivors pension and for the reckonable period earned by insurance contributions paid in Egypt or Turkey to be recognised in Greece after they had bought back the appropriate years, as was permitted under a 1964 decree. Their applications were refused as being outside the mandatory time-limit of one year from the date of permanent settlement in Greece. Between July 1978 and March 1986 the applicants appealed against these refusals to the relevant appellate administrative authorities and these appeals were dismissed between July 1979 and February 1987. They then applied to the administrative courts between May 1981 and April 1987 for judicial review of the refusals but judgment was given against them between January 1983 and November 1988. They applied to the supreme administrative court for judicial review of these judgments between June 1983 and April 1989. The proceedings in these and other cases were, however, stayed as a result of the applicants lawyer applying to the special supreme court to settle a divergence of opinion that had arisen in judgments given by the supreme administrative court and the cassation court in 1988. The latter had held that a section in a 1980 law had made entitlement to a pension indefeasible but the supreme administrative court had held that it had not abolished the one-year time limit. The special supreme court gave its judgment in June 1989, endorsing the position taken by the supreme administrative court. Applications for interpretation and rectification of this judgment were lodged by the applicants lawyer in April, June and September 1990. In the first it was submitted that the judgment did not settle the divergence of opinion with respect to individual paragraphs of the 1980 law (as opposed to the whole of the section concerned) and also contained errors. The court, after a hearing in January 1991 and deliberations in June 1991, dismissed this application in July 1991 on the ground that its earlier judgment concerned the scope of the section and had become final. In the second application it was argued that the judgment gave rise to doubts about its meaning and that there were clerical errors in its operative provisions or that the supreme administrative and cassation courts had not interpreted the same provisions of the 1980 law. This application was declared inadmissible in July 1991 on the ground that the applicant had not produced before the hearing, which neither he nor the lawyer attended, a power of attorney empowering the latter to represent him. The third application was based on the same arguments as the previous two and was dismissed in June 1991; the court held that it was being claimed that the judgment had errors of substance in order to have it substantially amended and that the errors allegedly distorting the meaning of the reasons were merely clerical ones. Between February 1992 and June 1993 the supreme administrative court dismissed the stayed applications for judicial review. The applicants complained about the length of the proceedings, interference with property rights and discrimination. The Commission, considering only the first complaint admissible, found (121) a breach of Art 6(1). Two of the applicants, K and V, had died in 1983 and 1990 while proceedings concerning them in the Greek courts were still pending and the applicants lawyer had omitted them from the list of applicants submitted in his memorial to the Court. Ks heirs had instructed his lawyer to continue the Greek proceedings but had not authorised him to refer the case to the ECmHR whereas Vs widow (who was also an applicant) had produced a power of attorney covering the proceedings before the ECHR institutions. Greeces declaration under Art 25 was made in November 1985. The Court held: (1) that only Ks case should be severed from those of the other applicants and should be struck out of its list; (2) that, despite the public law features of the cases brought by the applicants, the latter were not only affected in their relations with the administrative authorities as such but also suffered an interference with their means of subsistence; (3) that they were claiming an individual economic right derived from specific rules laid down in the Greek law and the outcome of the proceedings regarding the time-limit was directly decisive for their rights and obligations; (4) that Art 6(1) was, therefore, applicable in this case; (5) that the relevant period ran from the date of the Art 25 declaration and ended with the supreme administrative court judgments dismissing the applications for judicial review; (6) that account had, however, to be taken of the state of the proceedings at the critical date; (7) that the cases concerned were not at all complex; (8) that the stay caused by the application to the special supreme court should have

lasted only for the time needed to give judgment and, although the three subsequent applications for interpretation could not in any circumstances have led to amendment of the operative provisions of the interpreted judgment, the supreme administrative court did not begin to deliver its judgments against the applicants until February 1992; (9) that, when the proceedings had been stayed, the time already taken to consider each case from the reference to the appellate administrative authority ranged from two years, nine months and four days to ten years, five months and five days; (10) that the applicants lawyer could not have joined all the cases in one application for judicial review as it would have been rejected as out of time since the decisions and judgments involved had been given on different dates; (11) that, although a maximum of two adjournments was permitted by the civil procedure code, there had been an average of five to six adjournments in most of the cases and sometimes even nine; (12) that, having regard to all the circumstances and what was at stake for the applicants (whose conduct was not above reproach), the length of the proceedings was not reasonable and there was a violation of Art 6(1); (13) that the applicants should each be awarded GRD 500,000 for non-pecuniary damage; (14) that they should also be awarded jointly GRD 2 million, assessed on an equitable basis, for costs and expenses; and (15) that the statutory rate of interest applicable in Greece was 6% per annum. Comment: This ruling follows established case law both as regards the applicability of Art 6 to pension disputes even though they are being handled in a public law context and as regards the assessment of whether the length of proceedings was excessive. Although some of the total period taken for these cases could not be considered because of the timing of Greeces Art 25 declaration, the remainder was still clearly excessive given the straightforward nature of the issue involved and the disregard of the civil procedure codes provisions regarding adjournments. The striking out of Ks application is a reminder of the need for clear authorisation to act on behalf of an applicant. Length

of criminal proceedings excessive ICCPR Art 14(3)(c)

See THOMAS v JAMAICA, supra.

Oral hearing - no justification given for refusal - ECHR Art 6(1)

STALLINGER and KUSO v AUSTRIA

Judgment of the ECtHR, 23 April 1997 Mr and Mrs S were farmers whose land had been included in an agricultural land consolidation scheme which had been amended twice following their appeals. A further appeal against the amended scheme was dismissed by a land reform board comprised of five civil servants and three judges. This decision was rendered after an oral in camera hearing before which Mr and Mrs S, assisted by a lawyer, and other interested parties had appeared. The board, having regard to expert opinions (including one submitted by Mr and Mrs S) and its own on the spot investigations (to which the applicants had not been summoned), found that the compensatory parcels allotted to them constituted adequate compensation for their former properties. It considered unproven, given the lands classification as agricultural and use as such, a submission that construction possibilities meant some of the former plots had a potentially higher value and found that this made irrelevant the willingness of a witness to pay an important price for the plots. The constitutional court (referring to the judgment of the ECtHR in Ettl and Ors v Austria (Ser A No 117) in which it had been held that the composition of the land boards did not entail a violation of Art 6(1)) subsequently declined to accept for adjudication a complaint by Mr and Mrs S because it did not have sufficient prospects of success. However, it referred the case to the administrative court which (also referring to the Ettl judgment) both dismissed the complaint and rejected Mr and Mrs Ss request for an oral hearing pursuant to the 1982 law regulating its procedure. The administrative court held the participation of expert members in the decisions of the boards to be legally unobjectionable and that no objections could be raised to the boards assessment as to whether building would subsequently be allowed on the former

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properties of Mr and Mrs S. It also found that the on the spot investigation was in line with procedural law and that Mr and Mrs S could have made observations about the result of this investigation at the appeal hearing. Mr and Mrs K were also farmers whose land had been included in an agricultural land consolidation scheme which had been amended following their appeal. After a series of appeals the regional land reform board partly granted their appeal but dismissed their complaint that the parcels of land allotted to them were insufficient and thus afforded inadequate compensation. The supreme land reform board quashed this decision and a new scheme was published. This was confirmed by the regional land reform board but its decision was partly set aside by the administrative court for procedural defects. The regional board then, after an in camera hearing but without having carried out supplementary investigations, again dismissed the appeal of Mr and Mrs K against the revised scheme. The constitutional court declined to accept for adjudication a complaint by them because it did not have sufficient prospects of success. However, it referred the case to the administrative court which dismissed the complaint and rejected Mr and Mrs Ks request for an oral hearing pursuant to the 1982 law. The administrative court referred to the Ettl judgment and held that the boards hearings were covered by Austrias reservation to ECHR Art 6 (which provided that it was to be so applied as not to prejudice the principles governing public court hearings laid down in the federal constitutional law). It rejected an allegation that the board, having decided two consecutive appeals in the same matter, was not an impartial tribunal and considered that the boards earlier procedural shortcomings had been remedied. It also considered that further evidence offered by Mr and Mrs K in relation to the respective value of their former property and the compensatory parcels had correctly been rejected as irrelevant. Although they had submitted that their case had not been sufficiently discussed at the hearing and that substitute members of the board had not been sufficiently informed of all the issues, the court pointed out that only one of the boards eight members in the appeal had been a supplementary member and that all of the members, as well as the parties, had had the opportunity to put questions in order to see to it that the facts were exhaustively and correctly established. Austria ratified the ECHR in 1958 with a reservation to the effect that Art 6 was to be applied so as not to prejudice the principles governing public court hearings laid down in its 1929 constitutional law. The applicants complained about the land reform boards, the absence of a public hearing and the amount of land assigned to them. The Commission, considering the last complaint inadmissible, found no breach of Art 6(1) as regards the independence and impartiality of the boards or Mr and Mrs Ss right to a fair hearing but a breach of Art 6(1) insofar as the applicants did not have a public hearing. The Court held: (1) that, with regard to the membership of the boards, the legal situation was identical to that examined in Ettl and Ors v Austria in which it had held that the fact that civil servants sat on them because of their relevant experience (a) could not give rise to doubts about their independence and impartiality and (b) did not affect the adversarial nature of the proceedings; (2) that, as the applicants had failed to identify any convincing reason to depart from this case law, there was no violation of Art 6(1) as regards the applicants right to have their case determined by an independent and impartial tribunal; (3) that, although the hearings before the boards were only open to the parties concerned and not the public at large, a shortcoming in complying with Art 6(1)s requirements could be remedied by subsequent control carried out by a judicial body with full jurisdiction and it has not been suggested that in the instant case the scope of the administrative courts control was not sufficient; (4) that the applicants complaint about the administrative courts refusal to hold a hearing was not excluded from review because of Austrias reservation since the former was based on a provision which had not been adopted when the latter was made; (5) that it was not necessary, therefore, to consider the validity of the reservation in the light of Art 64s other conditions; (6) that, as no exceptional circumstances which might have justified dispensing with a hearing had been identified, the administrative courts refusal to hold one was a violation of the right to a public hearing in Art 6(1); (7) that, as the complaint by Mr and Mrs S about not being summoned to the in situ

inspection of the land by the regional boards expert members had not been pursued, there was no reason to entertain it of its own motion; (8) that, although the applicants had claimed to have sustained damage resulting from the improper procedure amounting to ATS 400,000, they had not sought to substantiate their claim and had not put forward any characterisation of the damage allegedly suffered; (9) that a claim for pecuniary damage should, in any event, be rejected since speculation as to the outcome of proceedings with a public hearing was not possible; (10) that the finding of a violation was sufficient just satisfaction for any non-pecuniary damage sustained; (11) that, as only one of three complaints had been upheld, the applicants should be awarded ATS 120,000 (assessed on an equitable basis) towards their costs and expenses; and (12) that the statutory rate of interest applicable in Austria was 4% per annum. Comment: Although the acceptance of civil servants as members of the board in Ettl seems couched as much by reference to necessity (i e the expertise of the individuals concerned) as the undoubted fairness of the procedure employed, the crucial factor which would lead to their disqualification as independent judges would be the ability of ministers or superior officials to replace them at will (see Bryan v United Kingdom, (1996) 10 Interights Bulletin 136). There was no suggestion of that in the present case and no other consideration was adduced which would justify a departure from Ettl. The latter ruling would not, of course, preclude a challenge to an actual or apparent lack of impartiality where particular civil servants sat in a hearing. Austrias reservation was clearly unable to provide a defence for the failure to provide a hearing given that the law on which this had been based did not exist at the time of ratification and thus did not satisfy Art 64s requirement that any law then in force must be involved (see also Fischer v Austria, (1996) 10 Interights Bulletin 67 and Pauger v Austria, infra). This is logically the first issue that should be addressed when applying Art 64 and it is surprising that the ECmHR found the reservation inapplicable because of its failure to include a brief statement of the law concerned. There was no ruling on this point but, although the Court has sometimes been generous on this point (see Chorherr v Austria, (1995) 9 Interights Bulletin 80), it seems inconsistent with the specificity to which Art 64 seems to aspire to allow exceptions to be added to the circumstances in which an oral hearing can be dispensed with. This is so even if this possibility is specifically provided for in the reservation and even if the exceptions existing at the time of making reservation are regarded as operative because they are incorporated into it without any specific reference being made to them. The Court rightly regarded the onus as being on Austria to justify why a hearing was not held where the law specifically provided that one should be held if requested. Although the issue of the attendance by Mr and Mrs S at the in situ inspection was not pursued, it is unlikely that a violation of Art 6(1) was involved given their ability to make subsequent observations as to the findings and there was no suggestion of prejudice on this matter (cf Mantovanelli, supra). The refusal to award compensation is consistent with established case law.

Oral

hearing - waiver inferred from failure to request one - ECHR Art 6(1)

PAUGER v AUSTRIA
Judgment of the ECtHR, 28 May 1997 P was a professor of public law whose wife had been a school teacher with the status of civil servant. Following her death in 1984 his application to the regional education council for a survivors pension had been rejected on the basis that, under the 1965 pensions law, such a claim could only be made by widows. After the regional government had rejected his appeal, P applied to both the constitutional and administrative courts. In a separate development the former court had repealed the 1965 law with effect from February 1985 for breach of the principle of equal treatment. Nevertheless the administrative court found that Ps claim had no legal basis and the constitutional court, after deliberating in private, declined to accept his appeal for adjudication on the basis that it did not have sufficient prospects of success. P reapplied for a pension to the regional education council in May 1985 and in the meantime the 1965 law had been amended, with retrospective effect

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to March 1985, so as to permit claims by widowers as well as widows. The council awarded P, pursuant to the amended laws transitional provisions, a pension representing one-third of his rights. He appealed to the regional government which in January 1986, while confirming the amount due, suspended payment on the ground that he was gainfully employed. P then brought a challenge to both the constitutionality of the transitional provisions and the power under which his pension rights had been suspended. In July 1987 the constitutional court decided only to review the constitutionality of the suspension power and, after a hearing in which it heard argument by the representative of the government and P, repealed the power (with effect from June 1988) as a breach of the principle of equal treatment. The court subsequently quashed the regional governments 1986 decision and the government then made a further ruling which upheld the regional education councils 1985 decision awarding P a pension. In August 1988 P made a further application to the constitutional court in respect of the transitional provisions but did not ask for a hearing to be held. The court, after deliberating in private, dismissed Ps appeal on the basis that the provisions represented the continuing change in attitudes towards the equality of the sexes. In June 1990 P applied to the UNHRC, alleging that there had been a violation of ICCPR Art 26, and his complaint was upheld in March 1993. Austria ratified the ECHR in 1958 with a reservation to the effect that Art 6 was to be applied so as not to prejudice the principles governing public court hearings laid down in its 1929 constitutional law. The constitutional court did not as a rule hear parties unless one of them expressly asked it to do so. P complained about not having access to a court and not having a hearing in the constitutional court. The Commission, considering only the latter complaint admissible, found (17-11) no breach of Art 6(1). The Court held: (1) that there was a dispute over the scope of Ps rights to a pension and even as to their existence; (2) that the right to a pension was a civil right and, since Ps pension rights would have been reassessed if the statutory provisions in issue had been found unconstitutional and declared void, the constitutional courts judgment was directly decisive for it; (3) that Art 6(1) applied, therefore, to the proceedings in issue; (4) that Ps complaint about the lack of a hearing was not excluded from review because of Austrias reservation since the decision not to hold one was based on a provision which had not been adopted when the latter was made; (5) that it was not necessary, therefore, to consider the validity of the reservation in the light of Art 64s other conditions; (6) that P was in principle entitled to a public hearing since the bodies which had ruled on his pension claim were wholly administrative ones and only the constitutional court could rule on the constitutionality of the provisions in issue; (7) that, having regard to the fact that (a) the constitutional court did not as a rule hear parties unless one of them expressly asked it to do so, (b) P could thus have been expected to ask for one if he had found it important that one be held and (c) P was familiar with the courts procedure since he was a professor of public law, P must be considered to have unequivocally waived his right to a public hearing as he made no such request; (7) that, as Ps application only related to the constitutionality of the transitional provisions of the 1985 law, his case did not raise a matter of public interest such as warranted a public hearing; (8) that there had not, therefore, been a violation of Art 6(1); and (9) that, as Austria did not raise the issue of compliance with Art 27(1)(b) as a result of the case brought before the UNHRC, it was not necessary to consider this of its own motion. Comment: The Court followed its well-established case law in regarding Ps claim with respect to a civil service pension as one involving a civil right for the purposes of Art 6(1) and that this guarantee applied even where a ruling of a constitutional court had a bearing on it; see RuizMateos v Spain, (1995) 9 Interights Bulletin 88. Judge Matscher, in a concurring opinion, maintained his disagreement on both matters. The ruling on the inapplicability of Austrias reservation also followed now well-established case law (see Stallinger and Kuso v Austria, supra) as did the view that the right to an oral hearing can be waived (see Hakansson and Sturesson v Sweden, Ser A No 171-A). As in Melin v France, (1995) 9 Interights Bulletin 49, the Court is adopting an exacting approach with respect to persons who can be expected to know their rights but still do not assert them or make the best use of them. The failure of P to request a hearing might have been of no consequence if the issue had been of wider significance (see Schuler-Zgraggen v

Switzerland, (1995) 9 Interights Bulletin 78) but it concluded that the issue was really only of concern to him because the action related to the constitutionality of the transitional provisions; this might be seen as an excessively narrow approach in principle since many could be affected by their operation. There was, however, no indication that this was so, insofar as concerned the legislation giving rise to the present case. The Court left open the issue of whether a complaint to the UNHRC based on a discrimination claim fell foul of Art 27(1)(b) and it is to be hoped that it would regard this as being of no consequence where a different substantive right had been invoked, notwithstanding that its application to the same issue was involved; although there is undoubtedly an overlap between some rights, it would be excessive to regard a complaint involving discrimination as substantially the same as one concerned with the conduct of a hearing. This is not, of course, to preclude the effect of reservations made to the OP; see Glaziou v France, (1995) 9 Interights Bulletin 24. Reasons

- ruling lacked sufficient precision ECHR Art 6(1)

See GEORGIADIS v GREECE, supra.

Witness - anonymity impeded effective cross-examination - ECHR Art 6(1) and (3)(d)

VAN MECHELEN and OTHERS v THE NETHERLANDS

Judgment of the ECtHR, 23 April 1997 V, W, J and P (the applicants) were placed under police observation after information had been received about their involvement in several robberies. A further robbery occurred in which a police officer was shot and in the course of which cars from the caravan site where the applicants lived had been used. The four applicants and a fifth man were charged with attempted murder and robbery and evidence offered by the prosecution included statements made to a named police officer by police officers identified only by a number. These officers were members of either the observation or arresting teams and were held by the regional court to have investigative competence. The evidential value of their statements was not, therefore, affected by their anonymity. The accused were convicted and sentenced to ten years imprisonment; the only evidence identifying them as the perpetrators being the statements made by the anonymous officers, none of whom gave evidence before the court or the investigating judge. On appeal, eleven officers were questioned pursuant to a procedure whereby they were in one room with the investigating judge and there was a sound link to another room where the defendants, their lawyers and the advocate general could hear both the questions asked and the replies given. The officers anonymity had been requested by them in the interests of the service and because of past threats to either their families or those of fellow officers. The investigating judge reported that the officers, four of whom had positively identified the applicants as the perpetrators of the offences, were reliable and credible and that their reasons for wishing anonymity were well-founded. The identities of the officers were made known to the investigating judge. E, a civilian witness, had previously made a statement identifying one of the applicants as one of the perpetrators but in open court stated that he was no longer sure of this. He had not been given the protection of anonymity and said that he had not been threatened. Vs lawyer submitted a video reconstruction of the events in which witnesses with excellent eyesight claimed to be unable to distinguish the features of the persons playing the role of the perpetrators of the offences. The appeal court refused a request that the anonymous officers give evidence in open court, even if disguised, because the possibility of their being recognised could not be excluded. It also rejected the objection to the officers anonymity, notwithstanding that no threats had been made to them or their families, because extremely serious crimes were involved. The court did not rely on Es statements but considered the statements of the officers to be corroborated by each other and by evidence available from nonanonymous sources (including a telephone conversation between J and his wife and forensic reports). The applicants were convicted and

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sentenced to fourteen years imprisonment but the fifth accused was acquitted. On appeal the admissibility of the officers evidence was upheld by the supreme court. It had not been alleged that any witness had been threatened by or on behalf of the applicants who complained about their convictions being based to a decisive extent on the evidence of anonymous witnesses. The Commission found (20-8) no breach of Art 6(1) and (3)(d). The Court held: (1) that the use of police officers as anonymous witnesses should only be resorted to in exceptional circumstances since they were in a somewhat different position to a disinterested witness or a victim, in that (a) they owed a general duty of obedience to the States executive authorities, (b) they usually had links with the prosecution and (c) their duties could involve giving evidence in open court; (2) that, provided the rights of the defence were respected, the anonymity of an agent deployed in undercover activities could be preserved for his own or his familys protection and so as not to impair his future usefulness; (3) that, as in the present case all communication with the police officers was via the sound link, the defence was not only unaware of the identity of these witnesses but was prevented from observing their demeanour under direct questioning and thus from testing their reliability; (4) that, in the absence of further information, the operational needs of the police could not provide sufficient justification; (5) that insufficient effort was made to assess the threat of reprisals against the officers or their families, as they were based exclusively on the seriousness of the crimes committed; (6) that, although the interrogation of the officers was before an investigating judge who had himself ascertained their identity and whose report had stated his opinion on their reliability and credibility as well as their reasons for remaining anonymous, this did not counterbalance the handicaps under which the defence laboured; (7) that the convictions were based to a decisive extent on the officers anonymous statements since the appeal court relied on them for the purpose of identifying the appellants as the perpetrators of the crimes; (8) that the present case could be distinguished from that of Doorson v The Netherlands ((1997) 11 Interights Bulletin 57) in that (a) the threat of violence was well-founded, (b) the witnesses were heard in the presence of the defendants lawyer and (c) there was other identification evidence unrelated to those witnesses; (9) (6-3) that, against this background the proceedings taken as a whole were not fair and there was a violation of Art 6(1) taken with Art 6(3)(d); (10) that the applicants claim for non-pecuniary damage in respect of their detention was not ready for decision and should be reserved; (11) that, as regards costs and expenses, V and W should be jointly awarded NLG 16,598.07 (less the legal aid received), J should be awarded NLG 20,000 (less the legal aid received) and P should be awarded NLG 11,905; and (12) that the statutory rate of interest applicable in the Netherlands was 5% per annum. Comment: Although the Court in Doorson had allowed the protection of a witnesss anonymity to encroach upon the defences ability to subject him or her to questioning, it is clear from this ruling that this must be exceptional. The Court singled out three factors as essential for this exception to be acceptable; a clear risk to the victim, some independent evidence supporting the testimony of the witness who cannot be challenged by the defence and questioning by a lawyer. The dissenting judges (Van Dijk, Matscher and Valticos) disagreed in part because of the assessment of the risk to which the police and their family would be exposed. There was undoubtedly some risk and the fact that the identity of the civilian was perhaps wrongly disclosed ought not to be regarded as refuting that. Nevertheless, given that there was such disclosure, more evidence of a risk to the police was surely required than the supposition that seemed to be being relied upon in this case. Van Dijk also sought to minimise the significance of the testimony of the police witnesses for the conviction and considered that the defence could hear and question the witnesses. The latter does not, however, satisfy the need to see the demeanour of witnesses whose reliability is being questioned. The ruling effectively condemns the attempt by the Netherlands to respond to an earlier challenge to the use of anonymous witnesses in Kostovski v The Netherlands, Ser A No 166; this remedial measure was not then in force but had been followed in the procedure for examining the police witnesses. The Courts acceptance that seeing a witnesss demeanour is an important basis for probing reliability is clearly of the utmost importance but the ruling does not entirely

preclude the use of anonymous witnesses and it may well be that the Doorson approach may ultimately be modified in the light of the Courts willingness in Chahal v United Kingdom, (1997) 11 Interights Bulletin 172, to accept that evidence can be satisfactorily tested by an independent lawyer. Certainly this would give greater assurance about demeanour being examined than that which the judge in charge of the case might be able to give. Witness

- failure to call was a matter of professional judgment - ICCPR Art 14(3)(e)

See THOMAS v JAMAICA and YOUNG v JAMAICA, supra.

FAMILY LIFE
Child

- mothers transsexual partner need not be registered as father - ECHR Art 8

See X, Y and Z v UNITED KINGDOM, infra.

Deportation did not have disproportionate effect - ECHR Art 8

BOUCHELKIA v FRANCE
Judgment of the ECtHR, 29 January 1997 B was born in Algeria in 1970 and came to France two years later with his mother and elder brother under arrangements for family reunion. In March 1987 B was charged with rape with violence and theft but he escaped from custody, for which he was subsequently sentenced to four months imprisonment. He was convicted of the rape and theft offences in May 1988 and, because of mitigating circumstances, was sentenced to five years imprisonment. B was released in May 1990 after obtaining remission of sentence and the following month a deportation order was made against him under the special procedure allowed in cases of extreme urgency and absolute necessity for public safety. This procedure does not (a) require an alien to be given advance notification, (b) afford him or her an opportunity to make representations or (c) require reasons to be given. The order was served and executed on the same day in July 1990 and B was deported to Algeria. Eight days later he applied for the order to be quashed and a stay of its execution on the basis that its extreme urgency or absolute necessity had not been established. The application for a stay of execution was rejected as unfounded in October 1990 and this ruling was upheld by the conseil dtat in May 1991. A later judgment in October 1990 also dismissed the application to quash the deportation order and this was upheld by the conseil dtat in June 1993. An application by B to have the deportation order rescinded was dismissed by the interior minister in December 1991, with specific reference to the conseil dtats first judgment, the seriousness of the offences and Bs conduct while in custody. A second such application was made in November 1995 and was pending before the deportation board of his dpartement. B returned to France illegally in 1992 and was arrested in April 1993 for insulting and obstructing a police officer and illegally entering and staying in France. Later that month he was sentenced to five years imprisonment and ordered to be banned from re-entering France for three years. In August 1993 an appeal court allowed Bs appeal against sentence, holding that the bar on re-entry was an excessively severe penalty. This court also noted his age when he arrived in France, his family connections there, the birth of a child to his companion and the absence of any ties or points of reference for him in Algeria. Meanwhile, in February 1993 a daughter had been born to B and a woman of French nationality whom he had met in 1986. B made a formal declaration of paternity in December 1993 and he and the woman were married in March 1996. His mother and nine brothers and sisters live in France. All his siblings, with the exception of the elder brother, were French nationals. B complained about the deportation order and the Commission (Second Chamber) found (9-4) no breach of Art 8. B was arrested in December 1996 and detained with a view to his removal to Algeria. He refused to leave and a compulsory residence

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order was issued against him. Later that month he was convicted of refusing to comply with a deportation order but sentence was deferred pending the ECtHRs judgment. The Court held: (1) that, although B was single and had no children when the deportation order was made and executed, he was still living with his original family and, since the age of two, had lived in France where he had his main private and family ties; (2) that his deportation amounted, therefore, to an interference with his private and family life; (3) that this interference was prescribed by law and had the legitimate aim of preventing disorder or crime; (4) that B, who was twenty years old, single and without children when the order was made, had maintained links at the material time with his country of origin of which he was a national and where close relatives of his lived; (5) that neither the appeal court finding in 1993 nor the fact that he now had a family life which did not exist in 1990 required the situation obtaining in 1990 to have been assessed otherwise at the relevant time; (6) that the main relevance of the fact that he was a minor aged seventeen when he committed aggravated rape was to the decision as to sentence and it did not detract from the seriousness and gravity of such a crime; (7) that the authorities could legitimately consider that Bs deportation was, at the time, necessary for the prevention of disorder or crime and the building up of a new family life after the deportation order was made and while he was an illegal immigrant did not justify finding, a posteriori, that the order made and executed in 1990 was not necessary; and (8) (8-1) that, as a fair balance had been struck between the relevant interests and as the decision to deport B was not disproportionate to the legitimate aims pursued, there had not been a violation of Art 8. Comment: The view that the offence justified Bs deportation is consistent with assessments previously made by the Court (e g Boughanemi v France, (1997) 11 Interights Bulletin 21). However, unlike situations where the effect of deportation is allegedly to expose someone to the risk of inhuman treatment (Chahal v United Kingdom, (1997) 11 Interights Bulletin 172 and see H L R v France, Inhuman and Degrading Treatment, infra), the Court is here making it clear that developments after a deportation will not be taken into account when determining its effect on private and family life. Although this might be thought necessary to avoid fraudulent attempts to overturn a deportation decision, it seems unduly harsh where there is no suggestion that this was not so and the links with the deporting country were clearly strong even though they were developed through a presence in the country that was unlawful. This ruling, as previous ones, does not seek to weigh the relative strength of the links between the deportee and both his country of adoption and of origin. It is evident, regardless of Bs wife and child, that he had much closer links with France and that he would be being isolated from his closest relatives by the deportation. Judge Palm dissented on the basis that deportation was not appropriate for second-generation immigrants (presumably treating B as such because of his age at the time of arrival) but also because of the strength of his links with the country and his inability to speak and read Arabic which would be a considerable handicap. Certainly the Court seemed to skate over the quality of these links and did not address the issue of whether Bs wife and child would be able to join him because of the situation there; the latter were not, of course, the applicants but the impact on their family life merited consideration. Deportation

changed by reassignment surgery. A female-to-male transsexual could not, therefore, marry a woman. An application by X and Y for artificial insemination by donor (AID) was initially refused by a hospital ethics committee but was allowed on appeal. The committee asked X to acknowledge himself to be the father of the child for the purpose of the legislation governing the birth of a child to an unmarried woman as a result of AID. Y was impregnated through AID treatment in January 1992 and X was present throughout the process. Z was born to Y in October 1992. X had previously been informed by the registrar general responsible for administering the registration of births that only a biological man could be regarded as a father for the purposes of registration. It had, however, been pointed out that the child could lawfully bear Xs surname and that X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child. X and Y still attempted to register Z in their joint names as mother and father but X was not permitted to be registered as Zs father and that part of the register was left blank. Z was given Xs surname in the register. Xs existing job contract came to an end in November 1995 and the only offer which he received was from a university abroad which offered accommodation and free education for dependants. X decided not to accept the job when told that only spouses and biological or adopted children would qualify as dependants. X subsequently obtained another job and Y gave birth to a second child by AID. The name of the father of a child born to an unmarried woman could be entered in the register if both parents jointly requested that this be done. Parental responsibility for a child would be vested in someone who is not the childs parent or guardian where a residence order had been made in his or her favour. Such an order settled the arrangements as to the person with whom the child was to live and such an order had, for example, been made in favour of two cohabiting lesbian women in respect of the child of one of them. The making of an order entailed the incurring of legal expense and an investigation by a court welfare officer which might distress the child. Parental responsibility did not, as such, create any inheritance rights for the child or enable the latter to benefit from provisions regarding the transmission of citizenship or tenancies from parent to child. Z was, however, a British citizen by birth and could trace connection through Y for immigration and nationality purposes. X was not the beneficiary of any transmissible tenancies and could leave property to Z by making a will. X,Y and Z complained about the lack of recognition of Xs role to Z. The Commission, having considered inadmissible complaints under Arts 12 and 13, found (13-5) a breach of Art 8 but (17-1) no need to examine whether there was a breach of Art 14 in conjunction with Art 8. The Court held: (1) that, given that (a) X was a transsexual who had undergone gender reassignment surgery and had lived with Y, to all appearances as her male partner, since 1979, (b) the couple had applied jointly for, and had been granted, treatment by AID to allow Y to have a child and (c) X had been involved throughout that process and had acted as Zs father in every respect since the birth, de facto family ties linked the three applicants and Art 8 was, therefore, applicable; (2) that the present case was not concerned with the absence of any provision in domestic law recognising a transsexuals change of identity but the impossibility of such a person being registered as the childs father; (3) that, as there was no common European standard on either the granting of parental rights to transsexuals or the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law, the law appeared to be in a transitional stage and the United Kingdom should be afforded a wide margin of appreciation; (4) that the community had an interest in maintaining a coherent system of family law which placed the best interests of the child at the forefront and, bearing in mind that the amendment of the law sought (a) would not necessarily be to the advantage of children conceived by AID even though it was not suggested that it would be harmful to Z or such children in general, (b) might have undesirable or unforeseen ramifications for children in Zs position and (c) might have implications in other areas of family law, there was justifiable caution about changing the law; (5) that the legal consequences flowing from the lack of recognition would be unlikely to cause undue hardship given the facts of the present case; (6) that neither Z nor third parties would know that the absence of Xs name on the birth certificate was a consequence of X being born female, unless X and Y

- potential impact not sufficiently substantiated - ICCPR Arts 17 and 23

See LIFE, T v AUSTRALIA, infra.

Transsexual

need not be registered as father of partners child - ECHR Art 8

X Y and Z v UNITED KINGDOM

Judgment of the ECtHR, 22 April 1997 X, a female-to-male transsexual, had lived in a permanent and stable union with Y, a woman, since 1979. English law defined a persons sex by reference to biological criteria and did not recognise that it could be

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chose to make this public, and the applicants were, therefore, in a similar position to any other family where (for whatever reason) the person who performs the role of the childs father is not registered as such; (7) that no particular stigma attached to children or families in such circumstances and there were few occasions in the United Kingdom when it was necessary to produce a full length certificate; (8) that X was not prevented from acting as Zs father in the social sense and, together with Y, he could apply for a joint residence order which would automatically confer on them full parental responsibility for her in English law; (9) that it was impossible to predict the extent to which the absence of a legal connection between X and Y would affect the latters development and, as there was uncertainty with regard to how the interests of children in Zs position could best be protected, it should not adopt or impose any single viewpoint; (10) that, given the absence of a generally shared approach to the complex scientific, legal, moral and social issues raised by transsexuality, Art 8 could not be taken to imply an obligation for the United Kingdom formally to recognise as the father of a child a person who was not the biological father; (11) (14-6) that there was not, therefore, a violation of Art 8; and (12) (17-3) that, as the complaint under Art 14 was tantamount to a restatement of the complaint under Art 8 and raised no separate issue, there was no need to examine the issue again in view of holding (11). Comment: This ruling confirms the Courts general approach that there is no obligation under Art 8 to recognise the gender claimed by a transsexual (e g B v France, Ser A No 232-C) but also its insistence on not being too formalistic about the nature of family life (Kroon v The Netherlands, (1996) 10 Interights Bulletin 25); Judge De Meyer in his concurring opinion would, however, only have seen the relationship between X and Z as one of private life. It is well-established in the case law that a State should be prepared to recognise the existence of family ties (e g Keegan v Ireland, (1995) 9 Interights Bulletin 131). The majority acknowledged that the position taken across Europe with respect to transsexuals was an evolving one but, in the absence of a clear consensus, it was not surprising that it did not consider the need for X to be registered as Zs father where other aspects of the law effectively permitted the former to be seen as performing this role and there was no risk of financial disadvantage ensuing from the lack of formal recognition. The fact that X was not named as such on the birth certificate was clearly not comparable to the situation in B where the original gender was disclosed on the identity document and it could not be seen as particularly problematic in that many natural fathers were not identified on such certificates. Judge Pettiti in a concurring opinion raised the question of whether the object sought by X could be imposed on Z and whether the CRC had been sufficiently taken into consideration; there is certainly force in his suggestion that in such a case the child should have separate legal representation. The view of Judge De Meyer was that there was no need to consider whether there had been a satisfactory balancing of interests since someone who was manifestly not the father had no right to be recognised as such; this is perhaps over-simplistic since not only is the male partner of someone giving birth after AID to be treated as the father but adopting parents are also recognised as such and the case could equally have arisen in this latter context. However, in both instances the issue is whether the transsexuals new gender is acknowledged and, although that remains the obstacle under the ECHR, it is not a manifest objection given the decision in B v France. Judges Casadevall, Russo and Makarczyk in their dissent considered that the United Kingdom, having financed Xs surgery, issued documents with his new sexual identity and authorised the artificial insemination, had to accept the consequences and enable the applicants to live normal lives under their new identity. This certainly supports the protection of Xs status as a man but does not compel recognition of him as Zs father. Judge Thr Vilhjalmsson saw no reason for differentiating X from any other male partner of a woman giving birth after AID and Judge Foighel also insisted that full account should have been taken of Xs gender reassignment. The latter also saw the case as one of discrimination in that a transsexual was being treated differently because of the defect with which he was born. Judge Gotchev considered that the welfare of the child required recognition of paternity irrespective of the manner of his or her conception or the transsexuality of the social father.

HEALTH
Medical

treatment - lack of provision to prisoner unjustified - ICCPR Arts 7 and 10(1)

See INHUMAN AND DEGRADING TREATMENT, WILLIAMS v JAMAICA, infra. Medical

treatment - loss following deportation unacceptable - ECHR Art 3

See INHUMAN AND DEGRADING TREATMENT, D v UNITED KINGDOM, infra.

INHUMAN AND DEGRADING TREATMENT

Death

row - lack of medical treatment unjustified - ICCPR Arts 7 and 10(1)

WILLIAMS v JAMAICA
Communication No 609/1995, Views of the UNHRC, 4 November 1997 W was convicted of murder and sentenced to death in December 1988. His appeal was dismissed in December 1990 and a senior lawyer advised him that an application to the judicial committee of the privy council for special leave to appeal would have no prospect of success. An appeal against the classification of his crime as capital murder was heard and dismissed in March 1995. Ws lawyer submitted that he had displayed signs of mental disturbance at the time of the trial and suggested that he was at least mentally unbalanced at the time of the killings concerned since they were committed with little (if any) motivation and in a gruesome manner. The lawyer also indicated that he had received correspondence from inmates on death row stating that W had severe mental problems and was unable to write himself. A psychiatric examination of W carried out by I in March 1992 diagnosed him as suffering from schizophrenia of a paranoid type, unspecified personality disorder and depression, in keeping with the circumstances of his incarceration. I recommended that W should benefit from regular psychotropic medication. The lawyer interviewed W in December 1992 but concluded that he did not understand the questions put to him and had no recollection of either the trial or the appeal. A senior prison officer and other inmates on death row told the lawyer that W was ill but he had been unable to obtain further information about the latters mental state despite repeated requests to the prison authorities for authorisation of another medical examination. W had been listed for such examination since September 1994 but his lawyer had not been able to establish whether any treatment had been given to him since then. W complained about being subjected to the death penalty when the circumstances strongly suggested that he was insane, not receiving proper medical treatment, and his prolonged detention on death row. His death sentence was commuted in December 1995. Jamaica undertook to carry out investigations to ascertain Ws mental health but the Committee did not receive any information concerning this. The Committee held: (1) that the communication was not inadmissible for non-exhaustion of domestic remedies since (a) a petition to the judicial committee was not available and effective in view of the advice that it would have no prospect of success, (b) Ws appeal against the classification of his sentence had been heard and dismissed in March 1995 and (c) a petition for special leave to appeal would serve little purpose after the commutation of the death sentence; (2) that, although the claim that the execution of a mentally disturbed individual like W would violate Arts 6 and 7 had become moot with the commutation of the death sentence, his other claims relating to the death row phenomenon and the lack of treatment were admissible; (3) that prolonged detention on death row did not per se amount to a violation of Arts 7 and 10(1); (4) that, having regard to (a) the serious

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deterioration of Ws mental condition during his incarceration on death row, (b) the failure of Jamaica to forward its findings of an investigation into Ws state of mental health and (c) the apparent failure to carry out the psychiatric examination scheduled for September 1994, W did not receive any or adequate medical condition for his mental condition while detained on death row; (5) that this situation constituted a violation of Arts 7 and 10(1); and (6) that W was entitled to an effective remedy including appropriate medical treatment. Comment: Although the Committee adhered to its view that prolonged detention on death row was not as such objectionable (see Bickaroo v Trinidad and Tobago, infra), this was clearly a case where the failure to respond to a prisoners medical condition could not be condoned. Indeed, although the uncertain prospect of execution may have had a part to play in Ws deterioration, the failure to provide medical treatment would have been a violation of the ICCPR even if the death penalty had not been a factor in the prisoners condition (see Lewis v Jamaica, (1996) 10 Interights Bulletin 143). The Committee has left open the question of whether the execution of someone who was mentally disturbed would be compatible with the ICCPR but this could be an individual circumstance which would weigh heavily against its application; cf the objection to the mandatory imposition of the death penalty in Luboto v Zambia (1996) 10 Interights Bulletin 28.

Deportation

- risk for informer from drug traffickers not established - ECHR Art 3

H L R v FRANCE
Judgment of the ECtHR, 29 April 1997 H, a citizen of Colombia, was arrested for possession of 580 grammes of cocaine while in transit at a French airport. He gave the police information about the instigators of the drug trafficking which led to the arrest and conviction in Germany of the person who had recruited him. This person was subsequently deported to Colombia. In the meantime H had himself been convicted of drugs offences and the trial court ordered him to be permanently excluded from French territory. Both an appeal and a petition to the president against the exclusion order were unsuccessful. The interior minister asked, as required by law, the deportation board for its opinion as to whether the order should be carried out. It found that it should not because Hs presence was not a serious threat to public order and his integration into the community was possible. However, the minister issued an order for Hs deportation, relying on (a) the amount of heroin (sic) imported and (b) the threat posed by his general behaviour. The deportation order was then served on H and it was stated that he would be deported to Colombia unless he was accepted by another country within a month. An application by H to have the order rescinded was rejected because the acts giving rise to it had occurred recently and were serious. Reference was again made to the importation of heroin. Hs applications for judicial review of the order were also dismissed on the basis that the order only required him to leave France and his submission that his return to Colombia would infringe ECHR Art 3 was ineffective. The court also found that ECHR Art 8 was not infringed because he was single and had no children and family life in France. The result of an appeal against these rulings was not known. H complained about the risk to which he would be exposed if deported to Colombia and the Commission recommended under ECmHR ROP r36 that France refrain from so doing. The interior minister then subjected H to a compulsory residence order which required him to live in a designated location until he was in a position to comply with the deportation order. The Commission found (19-10) a breach of Art 3 if H were to be deported. The Court held: (1) that, although States could control the entry, residence and expulsion of aliens, there was an obligation not to deport a person to a country where there was a real risk of his or her being subjected to treatment contrary to Art 3; (2) that Art 3 prohibited in absolute terms torture or inhuman or degrading treatment, irrespective of the victims conduct; (3) that, although the establishment of the facts was primarily a matter for the ECmHR, it was not bound by them and remained free to verify and assess them itself; (4) that, as the risk was to be assessed as at the date when it considered the case, information coming to light since the case was examined by the ECmHR should be examined; (5) that Art 3s absolute character meant that its applicability could not be excluded where the danger emanated from persons or groups of persons who were not public officials but it must be shown that the risk was real and that the authorities of the receiving State were not able to obviate the risk by providing appropriate protection; (6) that the general situation of violence existing in the country of destination would not in itself entail, in the event of deportation, a violation of Art 3; (7) that there was no relevant evidence to show that there was a real risk of revenge being taken by drug traffickers in Hs case and there were no documents supporting Hs claim that his personal situation would be worse than that of other Colombians, were he to be deported; (8) that, although the authorities faced difficulties in containing the violence, H had not shown that they were incapable of affording him appropriate protection; (9) (15-6) that, as there were no substantial grounds for believing that H (if deported) would be exposed to a real risk of being subjected to inhuman or degrading treatment, the execution of the order for his deportation would not be a violation of Art 3. Comment: This ruling reiterates the absolute nature of the obligation under Art 3 when implementing deportation decisions so that account cannot be taken of the deportees background in granting him or her protection against a real risk of ill-treatment in the receiving country (see Chahal v United Kingdom, (1997) 11 Interights Bulletin 172). This

Death

row - length of detention acceptable ICCPR Art 7

BICKAROO v TRINIDAD AND TOBAGO

Communication No 555/1993, Views of the UNHRC, 29 October 1997 B was convicted of murder and sentenced to death in April 1978 and his appeal was dismissed in June 1979. His lawyer subsequently informed him that there were no grounds on which a further appeal to the judicial committee of the privy council could be argued with any prospect of success. On 30 September 1993 a warrant for his execution six days later was read to him but this was stayed after a constitutional motion had been filed on his behalf. B complained about his confinement to death row since his conviction and his execution after so many years on death row. His death sentence was commuted to life imprisonment in December 1993. The Committee found the communication admissible insofar as it raised issues under Arts 7 and 10(1). The Committee held: (1) (6-7) that, although the time spent by L on death row was unprecedented and was a matter of serious concern, length of detention on death row was not per se a violation of Arts 7 and 10(1); and (2) that there were no circumstances connected with Ls detention over and above its length which could lead to a conclusion that there had been a violation of those provisions. See FAIR HEARING, LAVENDE v TRINIDAD AND TOBAGO, supra. Comment: The Committee in both these cases (and see also the admissibility ruling in Thomas v Jamaica, Fair Hearing, supra) has adhered to its view that lengthy detention, even for periods which it acknowledged to be unprecedented, was not as such objectionable (see Johnson v Jamaica, (1996) 10 Interights Bulletin 70). The dissenting members (Pocar, Bhagwati, Chanet, Gaitan de Pombo, Prado Vallejo and Yalden; not the last in LaVende) objected both to the fact that this approach prevented an examination of the circumstances of individual cases and to the view that the reading of the warrant at such a late point did not amount to further compelling circumstances. The split within the Committee on this matter is deeply entrenched and, although the number of dissenting members seems to be growing, it is improbable that the majority would object to any length of detention on death row without some other independent factor (even if, as in Williams v Jamaica, supra, it is aggravated by the time spent there). The lack of cooperation in these cases undoubtedly merits something more forceful than the regret expressed by the Committee.

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29

decision establishes unambiguously that the possibility of that risk being posed by private persons as much as by public officials must be considered and the conclusion in the particular case turned on the assessment of the evidence regarding Hs situation. Although the majority accepted that there was a tense situation and that revenge had been taken against informers, it did not find that there was any clear evidence as to the existence of a particular risk for H. This might well be an appropriate approach where the person concerned is claiming political persecution; if nothing has been done or threatened in respect of him it would be hard to take such a claim very seriously. However, it is less compelling where this is a past practice of revenge and the applicant has already put his neck on the line by acting as an informer; it is slightly artificial to expect the drug traffickers to document what will happen to him and the discounting of letters from Hs aunt about being questioned about him by one of the drug traffickers seems to be a little too peremptory. It is also unrealistic, as the dissenting judges (De Meyer, Pekkanen, Thr Vilhjalmsson, Lopes Rocha, Lhmus and Jambrek) pointed out, to expect H to show that the Colombian authorities were incapable of protecting him, particularly when no special arrangements with respect to this seemed to be on offer from them (see also T v Australia, Life, infra). The dissenting judges understandably attached much significance to a report by a special rapporteur for the UNCmHR and drew parallels with the situation obtaining in Colombia with those found in Chahal to demonstrate a real risk of reprisals. Judge Jambrek also weighed the impact on Frances public order of Hs presence there against the likely consequences on his return to Colombia and doubted whether there was any possibility of his continuing with a life of crime. Deportation

their relatives. D had no family home or close family (other than a cousin) in St Kitts and his mother stated that her age, bad health and lack of resources prevented her from returning there to look after him. D complained about his proposed removal to St Kitts and the absence of an effective remedy. The Commission found (11-7) a breach of Art 3, (13-5) no breach of Art 13, no need to examine the complaint under Art 2 and no separate issue arising under Art 8. D was subsequently released on bail to reside in special sheltered accommodation for AIDS patients. At the time of the hearing before the Court his condition was causing concern and the prognosis was uncertain. His lawyer submitted that Ds life was drawing to a close much as had been predicted. The United Kingdom undertook not to remove D unless he was fit to travel. The Court held: (1) that Contracting States had the right to control the entry, residence and expulsion of aliens and expulsion was a justified response to drug trafficking; (2) that, in exercising this right, regard must be had to Art 3; (3) that, regardless of whether D had ever entered the United Kingdom in the technical sense, he had been physically present there and thus within its jurisdiction within the meaning of Art 1; (4) that the application of Art 3 could not be excluded where the source of the proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of its public authorities or which, taken alone, did not in themselves infringe the standards of that provision; (5) that there was a serious danger that the conditions of adversity which await D in St Kitts would further reduce his already limited life expectancy and subject him to acute mental and physical suffering; (6) that no evidence had been adduced to show whether (a) Ds cousin would be willing or able to attend to the needs of a terminally ill man, (b) there was any other form of moral or social support and (c) there was a guaranteed bed in any of the hospitals in St Kitts; (7) that, in view of these exceptional circumstances and bearing in mind (a) the critical stage now reached in Ds fatal illness and (b) his reliance on the care which he has been receiving, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment even though the conditions there are not themselves a breach of the standards of Art 3; (8) that, without calling into question the good faith of the United Kingdoms undertaking, these considerations were wider in scope than whether or not D was fit to travel back to St Kitts; (9) that, although aliens who have served their prisons sentences and are subject to expulsion cannot in principle claim any entitlement to remain in order to continue to benefit from medical, social or other assistance, the exceptional circumstances and the compelling humanitarian considerations at stake meant that implementation of the removal decision would be a violation of Art 3; (10) that, having regard to this finding, it was unnecessary to examine Ds complaint under Art 2; (11) that, having regard to finding (9), Ds complaints under Art 8 raised no separate issue; (12) that, notwithstanding the difference in the source of the risk, there was no reason to depart from its previous rulings that judicial review proceedings were an effective remedy in relation to complaints raised under Art 3 in the contexts of deportation and extradition; (13) that the substance of Ds complaint had been examined by the appeal court and the fact that it did not exercise its power to afford him the relief sought was not a material consideration since effectiveness did not depend on the certainty of a favourable outcome; (14) that, as D had an effective remedy in relation to his complaints under Arts 2, 3 and 8, there was no violation of Art 13; (15) that D should be awarded GBP 35,000 assessed on an equitable basis (plus any VAT chargeable and less the legal aid already paid) in respect of his costs and expenses; and (16) that the statutory rate of interest applicable in the United Kingdom was 8% per annum. Comment: As in H L R v France, supra, the Court here recognised that the risk of ill-treatment need not emanate from public authorities for the protection of Art 3 to be applicable to a deportation decision. In accepting that there was such a risk it followed the approach of established case law but the medical evidence in this case was overwhelming. Nevertheless the Court went out of its way to emphasise that its ruling was based on the very specific circumstances of the case; it cannot be used to found a right to medical treatment in general and the fact that deportation would cut someone off from medical, social or other benefits not available in the receiving country is not in itself sufficient to establish a violation of Art 3. This case turned on the fact

- risk of caning not established

- ICCPR Art 7
See LIFE, T v AUSTRALIA, infra.

Deportation - suffering through loss of medical treatment unacceptable - ECHR Art 3

D v UNITED KINGDOM
Judgment of the ECtHR, 2 May 1997 D was born in St Kitts and had lived most of his life there. During a visit to the United States, where all his family was living, he was convicted of possessing cocaine. In January 1993, after serving a years imprisonment, D was paroled and deported to St Kitts. Two weeks later he tried to enter the United Kingdom as a visitor but was found to be in possession of a substantial quantity of cocaine, on account of which he was also refused leave to enter the United Kingdom and given notice that he would be removed to St Kitts within a matter of days. However, he was prosecuted for importing the cocaine and sentenced to six years imprisonment. While serving this sentence D was diagnosed as HIV positive and as suffering from AIDS. The infection appeared to have occurred some time before his arrival in the United Kingdom. Immediately prior to Ds release on licence in January 1996, the immigration authorities gave directions for his removal to St Kitts and his request to be allowed to remain in the United Kingdom on compassionate grounds was refused. D, who had been placed in immigration detention, had submitted that his removal would entail the loss of the medical treatment which he was then receiving and thereby shorten his life expectancy. This had been confirmed by the consultant treating him. The non-availability of the medical facilities in St Kitts was confirmed by the authorities there. The chief immigration officer treating Ds request as an application for leave to enter the United Kingdom - ruled that it would not be right for him to be allowed to remain where the treatment was provided at public expense and that it was not fair to treat AIDS sufferers differently from others suffering medical conditions. Applications for judicial review of this ruling were unsuccessful at first instance and on appeal. A subsequent medical report stated that D had suffered severe and irreparable damage to his immune system and that withdrawal of the therapies which he was receiving would reduce his present prognosis of 8-12 months by half. It was also established that the hospitals in St Kitts would treat AIDS sufferers for opportunistic infections but that many sufferers lived with

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that D was in the last stages of his life and his suffering would be exacerbated by being returned to St Kitts. Although the issue was left open, it is unlikely that the reasoning in this case could be extended to prevent the deportation of someone to a country where a treatment that would save or prolong his life was not available unless the effect of not receiving it would have the immediate consequence of death. The Court also treated the issue of whether the interference with the medical treatment affected the right to physical integrity under Art 8 as raising no separate issue from that under Art 3. Nevertheless it is probable that denial of access to treatment in non-life-threatening situations would be seen as violating Art 8 rights unless there was a legitimate public interest; however, a well-founded deportation decision is likely to be a sufficient justification for this. The Court declined the opportunity to reopen its ruling in Vilvarajah v United Kingdom, (1992) 7 Interights Bulletin 11, that judicial review afforded an effective remedy in respect of potential violations of the ECHR resulting from a deportation decision as the substance of Ds complaint could be examined. It emphasised in particular that, unlike Chahal v United Kingdom, (1997) 11 Interights Bulletin 172, security considerations had not precluded the factual basis for the decision from being reviewed. Ill-treatment

in prison presumed in absence of State response - ICCPR Art 7 treatment - lack of provision to prisoner unjustified - ICCPR Arts 7 and 10(1) treatment - loss following deportation unacceptable - ECHR Art 3

See FAIR HEARING, YOUNG v JAMAICA, supra. Medical

See WILLIAMS v JAMAICA, supra. Medical

See D v UNITED KINGDOM, supra.

LIBERTY AND SECURITY

Arrest

circumstances concerning his health, he filed a request with the prosecutor-general for his release. The following month his lawyer unsuccessfully appealed to the supreme court against an implied refusal of this request. L again requested his release and this was dismissed by the public prosecutor in November 1992 for the reasons previously given by the prosecutor-general and because, despite the medical reports concerning Ls health, there were no new circumstances warranting it. Ls lawyer then asked the prosecutor-general to terminate the investigation, submitting that there were no exceptional circumstances warranting an extension of the time permitted under the criminal procedure code, and again also sought Ls release. The prosecutorgeneral informed the lawyer orally that the request had been dismissed in the absence of new circumstances. In December 1992 the national assembly reversed its decision authorising Ls detention on remand and the prosecutor decided to release him on bail. In March 1994 the city court awarded L compensation for non-pecuniary damage suffered as a result of the attempts to withdraw his passport in the absence of a lawful order and this decision was confirmed by the supreme court in February 1995. Bulgaria ratified the ECHR and made a declaration under Art 46 in September 1992. L complained about his arrest and detention, the treatment in custody, the absence of a public hearing before the supreme court, the proceedings against him in respect of acts that were not criminal at the time, a prohibition on writing articles relating to the investigations and the misuse of restrictions permitted by the ECHR. Bulgaria submitted that it could not give details of improper deals involved in the development assistance granted when L was in government because of the confidentiality of the criminal proceedings against him and others. The Commission, considering only the first and last complaints admissible, found a breach of Art 5(1) but that no separate issue arose under Art 18. L was subsequently shot dead outside his home. Bulgaria indicated to the Court that it was prepared to accept the ECmHRs opinion on Art 5(1) but informed it of the views of the prosecutor-general and pointed out that, as the prosecution and the supreme court were both independent judicial authorities under the constitution, it was not within its power to assess the measures taken by them in this case. The Court held: (1) that it was not disputed that Ls widow and two children were entitled to pursue the application on his behalf and there was no reason to hold otherwise; (2) that it had jurisdiction to examine the facts and circumstances of Ls complaints insofar as they related to the period after Bulgarias ratification of the ECHR and Art 46 declaration; (3) that it should, however, take into account the state of the proceedings as of that date and in the particular the fact that the grounds for his detention stated in the detention order and the supreme court judgment upholding it remained the same until his release; (4) that, although the authorities which took the measures giving rise to the complaints might be independent, governments were answerable for their acts as much as for those of any other State agency; (5) that, notwithstanding Bulgarias acceptance of the ECmHRs opinion on Art 5(1), it should examine this question for itself; (6) that, although it was undisputed that L as a member of the government had taken part in the decisions giving rise to the charges, none of the criminal codes provisions specified or even implied that anyone should incur criminal liability by taking part in collective decisions of this nature; (7) that no evidence had been adduced to show that such decisions were unlawful, taken in excess of powers or taken contrary to the law on the national budget; (8) that it was not persuaded, therefore, that the conduct for which L was prosecuted constituted a criminal offence at the relevant time; (9) that the July detention order referred to (a) the offence of misappropriation for which the offender must have sought to obtain for himself or for a third party an advantage and (b) the offence of a public servant abusing his power for such an advantage; (10) that no fact or information had been provided which was capable of showing that L was at the time reasonably suspected of having sought to obtain for himself or a third party an advantage from his participation in the allocation of funds in question; (11) that the submission that there had been certain deals, found by the ECmHR to be unsubstantiated, had not been reiterated and it was not contended that the funds had not been received by the States concerned; (12) that in these circumstances Ls detention during the period under consideration was not lawful detention effected on reasonable suspicion of [his] having committed

- no offence existed - ECHR Art 5(1)(c)

LUKANOV v BULGARIA
Judgment of the ECtHR, 20 March 1997 L was a member of the national assembly and had been a minister, deputy prime minister and prime minister. Border police told him twice in March 1992 that an order had been made to withdraw his diplomatic passport but, as that was not shown to him, he refused to hand it over. An appeal lodged with the supreme court was rejected as no administrative decision had been taken on which this could be based. L then brought proceedings to obtain compensation for non-pecuniary damage sustained as a result of the unlawful order to withdraw his passport. In July 1992 the prosecutor-general requested the national assembly to authorise the institution of criminal proceedings against him on suspicion of having, as a public servant, misappropriated public funds and having wilfully dispersed assets to the disadvantage of the national economy. The suspicion related in particular to his participation as a deputy prime minister in a number of decisions granting assistance and loans to certain developing countries. The national assembly waived Ls parliamentary immunity and authorised criminal proceedings against him, as well as his arrest and detention on remand. The public prosecutor then charged L with the offence of misappropriation and also with abuse of power by a public servant with the aim of obtaining a material advantage for a third party. He ordered Ls detention on remand because of (a) the need to show to the public the danger that the offences in question represented to society, (b) Ls identity and (c) the need to secure his appearance before the trial court. After L was arrested and remanded in custody, his lawyer lodged an appeal with the supreme court requesting his release. This was dismissed at a session at which the public prosecutor, but not L or his lawyer, was present. The courts decision relied on the seriousness of the misappropriation and the risk of him fleeing because of his status and his appeal regarding the passport. L was hospitalised in August 1992 and, relying on a change of

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an offence; (13) that, having reached this conclusion, it did not need to examine whether the detention could reasonably be considered necessary to prevent his committing an offence or fleeing after having committed one; (14) that there was, therefore, a violation of Art 5(1); (15) that, bearing in mind its conclusions with regard to Art 5(1), no separate issue arose under Art 18; (16) that Ls widow and children should be awarded FRF 40,000, assessed on an equitable basis and to be converted into Bulgarian leva at the rate applicable on the date of settlement, for non-pecuniary damage; (17) that they should also be awarded USD 13,456 and FRF 7,067 for costs and expenses; and (18) that default interest should be payable at the rates of 4 and 5% per annum with regard to the sums awarded in French francs and US dollars respectively. Comment: Although this was a case with particular political sensitivities in Bulgaria given the background of the applicant, the conclusion that his detention fell outside the circumstances authorised by the ECHR entailed a very straightforward application of Art 5(1); thus there was no basis for concluding that L had been detained for a criminal offence established by the countrys law - a clear prerequisite of Art 5(1)(c) - and, even if the misappropriation offence had been applicable to Ls conduct, there was no basis for a reasonable suspicion of his involvement as elaborated in the Courts case law on this requirement (see Murray v United Kingdom, (1996) 10 Interights Bulletin 71). It is also doubtful whether Ls detention could have been justified in order to prevent his flight; certainly the dispute about the passport did not point to such an intention but rather a determination to fight the authorities (see Mansur v Turkey, (1996) 10 Interights Bulletin 103 and also Muller v France, infra). The conclusion regarding Art 18 points to this being an implied limit to any restrictions that can be imposed by the substantive rights and to its separate elaboration being merely an echo rather than of additional effect. The Courts rejection of the view that the prosecutors independence precluded responsibility is in accordance with longestablished principles but is a useful reminder that institutional safeguards for domestic bodies do not mean that their conduct cannot be scrutinised at the international level. Arrest

- reasonable suspicion did not exist ECHR Art 5(1)(c) - preventative detention not shown to be automatic for drug trafficking ICCPR Art 9

See LUKANOV v BULGARIA, supra. Deportation

See LIFE, T v AUSTRALIA, infra.

Pre-trial detention - length was excessive ECHR Art 5(3)

MULLER v FRANCE
Judgment of the ECtHR, 17 March 1997 M and his brother were arrested in December 1988 for armed robbery, theft and conspiracy. They immediately admitted the offences. Two days later an investigating judge charged them and ordered their detention pending trial. The judge also charged five other persons with these and related offences. These measures were taken pursuant to one of five concurrent judicial investigations by three different investigating judges into several armed bank robberies in the eastern part of the country. Surveillance instructions had previously been issued in respect of these offences and further ones were issued to the police in seven different towns between February and November 1990. There was, however, an amalgamation of the proceedings through the joinder of two investigations and the transfer of the cases from two of the investigating judges (including the one who had charged M) to a third one. This occurred between December 1988 and December 1989 and the judge investigating the case was replaced on three occasions between April 1989 and April 1990. Further charges had been brought against M and the other detained suspects in March 1989. Another person was charged in October 1990 and the investigating judge arranged a

confrontation of the co-accused with that person which M refused to attend. A further confrontation was thus arranged for June 1991 between M and four co-accused. Three other persons were charged between November 1990 and July 1991. The investigating judge questioned M six times between February and November 1989. His brother and co-accused were also examined between January and November 1989. Psychiatric, medical and social inquiry reports were ordered on M and his brother in February 1989 and filed the following month when the investigating judge also received documents requested from another judge responsible for the execution of sentences in another town. The release of the co-accused was ordered in July 1989. Ms detention was extended in December 1989 by the investigating judge for a further period of one year in order to prevent him reoffending or attempting to escape punishment since the offences were serious and he had previous convictions. M, his brother and the co-accused were questioned together in March and July 1990. A report requested in November 1990 by the investigating judge on one of the other persons charged was received two months later. In December 1990 the investigating judge again extended Ms detention for a year because [of] his previous convictions, the continuing investigations to establish the role of the co-accused and the sentence faced made it unlikely that he would appear for trial. A psychiatric report on another accused was requested and received in June 1991. Ms application for his immediate release in August 1991 was refused as there was a risk of (a) his absconding because of the likely sentence and (b) reoffending because of his past convictions. This ruling was upheld on appeal later that month although it had been recognised that the joinders and transfers of jurisdiction had complicated the proceedings. The file was sent to the prosecutor in September 1991 and he applied for orders for severance, a partial committal, a partial discharge and the transfer of the remainder of the case to the principal prosecutor. In November 1991 the investigating judge, considering that there was sufficient evidence against M to commit him on several counts, ordered the case to be sent to the principal prosecutor in respect of them and made a partial discharge order in respect of three co-accused. Seven people, including M, were committed to stand trial in December 1991 by the appeal courts indictment division which also ordered their arrest and detention. It considered that the length of Ms detention had not exceeded the authorised limit and noted that he had exerted a deplorable influence on other inmates by a policy of systematic protest. That same month the cassation court, referring to the need for the confrontations in June and August 1991, dismissed Ms appeal against the refusal of his application to be released. In April 1992 the cassation court dismissed as out of time appeals on points of law by M, his brother and a co-defendant against their committal for trial. The case could not be tried until these appeals had been heard and experts, witnesses and civil parties were summoned in August and September 1992 to appear at the trial which was set down for September 1992. The defence lawyers were granted an adjournment three days before its commencement on the ground that they had not been able to communicate with their clients for almost a week because of a prison warders strike. In the same month M unsuccessfully applied to be released The trial was held in December 1992 and the assize court convicted M, his brother and five other accused. M was sentenced to ten years imprisonment, from which the entire period spent in pre-trial detention was deducted. In March 1993 the cassation court dismissed Ms appeal against the refusal of his earlier application to be released, holding that it had no jurisdiction to review the lower courts assessment that the complexity and number of offences made the length of his detention reasonable. While M was in custody pending trial he had been (a) fined FRF 25 for producing an identity document from which the photograph had been removed (he had given it to his wife), (b) given a suspended sentence of four days cell confinement for refusing to allow himself to be searched when leaving the visiting room and (c) given two days solitary confinement for jeopardising public order or prison discipline. M complained about the length of his detention pending trial, the criminal proceedings brought against him and the fairness of the trial. The Commission, having considered only the first complaint admissible, found a breach of Art 5(3). The Court held: (1) that the relevant period ran from when M was taken into police custody and ended with the assize courts judgment; (2) that

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the investigation of the case was complex in that it had been necessary to amalgamate proceedings conducted simultaneously in three different jurisdictions but M had admitted the offences of which he was accused as soon as he was arrested; (3) that any risk of collusion must have disappeared after the closure of the criminal investigation in November 1991 and the committal of M and his accomplices to stand trial; (4) that the risk of absconding could not be gauged solely on the basis of the severity of the sentence faced and a reference to a persons antecedents could not suffice to justify refusing release because of the danger of reoffending; (5) that Ms detention had, therefore, ceased to be based on relevant and sufficient reasons when the order closing the investigation had been made; (6) that, although the joinder of the various proceedings had certainly been necessary for the proper administration of justice, the successive changes of judge contributed to slowing down the investigation and this had been recognised by the domestic courts; (7) that the judicial authorities had not acted with all due expedition even though M had (a) admitted the offences as soon as the investigation had begun and (b) not made any application that might have slowed the investigations progress; (8) that the period spent by M in detention pending trial was thus not reasonable and there was a violation of Art 5(3); (9) that, although France had submitted that M had not provided prima facie evidence of pecuniary damage, the claim should in any event be dismissed as the length of the detention pending trial was deducted from his sentence; (10) that the present judgment constituted sufficient compensation with regard to non-pecuniary damage; (11) that M should be awarded FRF 40,000 for costs and expenses, principally those incurred in Strasbourg; and (12) that the statutory rate of interest applicable in France was 3.87% per annum. Comment: This ruling follows established case law in accepting that a delay in bringing someone to trial can be justified by the need to amalgamate several proceedings (Van Der Tang v Spain, (1996) 10 Interights Bulletin 104) but this cannot provide an excuse where there is a failure to ensure that the consolidated case is pursued with due diligence. As in many cases of delay, the approach to the organisation of the judiciary is necessarily put under close scrutiny and, no matter how important it is to rearrange judicial posts, this should not be at the expense of the cases supposed to be being handled. However, as the Court found that reasons ceased to exist for detention by November 1993, it perhaps ought to have found that there was a violation of Art 5(3) on that ground as well.

Commission found (25-3) a breach of Art 5(1) but (unanimously) no need to consider whether there was a breach of Art 14 taken with Art 5(1). Ps application for a presidential pardon was reconsidered and the term sought granted in January 1997. P indicated that he was not proceeding with his application, France asked for the case to be struck out and the Commission did not oppose it being struck out. The Court held: (1) that the conditions under ROP (Court A) rr26 and 38 for dispensing with a hearing had been satisfied; (2) that, although a friendly settlement within ROP (Court A) r49(2) had not been reached, P had (a) indicated that he was not proceeding with the case, (b) been given what he had been seeking by the pardon, (c) been granted legal aid before the ECHR institutions and (d) not made a claim under Art 50, the circumstances could be regarded as an arrangement or other fact of a kind to provide a solution of the matter under that rule; and (3) that, since there was no contrary reason of public policy, the case should be struck out of the list. Comment: Although there is no right to compensation for pre-trial detention that does not lead to a conviction but is otherwise valid (cf the right to compensation where a conviction is set aside in Prot 7 Art 3), the existence of a link between the reasons for such detention and the sentence ultimately imposed rightly leads to the expectation that the former will count against the latter. The settlement of this case leaves open the question whether this is an implied limit on the loss of liberty that can be justified under Art 5(1)(a) and it is not entirely clear, therefore, why the Court should consider there to be no issue of public policy precluding the case from being struck out of the list, notwithstanding that P had obtained all that he had sought. As a setoff was all that would be of benefit to him, it is not surprising that his complaint was only framed in terms of a violation of Art 5(1). However, as the reason for rejecting any set-off was based on the view that his pre-trial detention had been deemed never to have taken place because the judicial investigation giving rise to it had been declared null and void, there should surely have been a possibility of securing compensation for it since there would otherwise been a violation of Art 5(5).

LIFE
Deportation

Pre-trial detention - length not deducted from sentence - claim settled - ECHR Art 5(1) & (4)

- risk of receiving death sentence not established - ICCPR Art 6 and SOP

T v AUSTRALIA
Communication No 706/1996, Views of the UNHRC, 4 November 1997 T, a Malaysian citizen of Chinese ethnicity, was convicted in Australia of importing heroin and sentenced to six years imprisonment in 1992. His application for refugee status was rejected the following year on the basis that, although there was a real chance that he would face the imposition of the death penalty in Malaysia because this was the penalty for drug trafficking in that country, this did not constitute persecution within the GCSR. He was released on parole in October 1995 and married G in January 1996, becoming the stepfather of her sons. T had a bridging visa and a challenge to the refusal of his application for a protection visa was pending before the federal court. T complained about his possible deportation to Malaysia where he faced the death penalty as a result of his conviction in Australia, as well as (a) the likelihood of a delay between arrest and execution of up to nine years, (b) the possibility of a mandatory whipping, (c) the possibility of preventative detention without recourse to the courts for up to two years and (d) the absence of a fair investigation and trial, particularly because of his ethnicity and lack of full understanding of Malay. T also complained about the trauma that would be caused to G and her sons by his return to Malaysia. Ts visa expired in June 1996 and the Committee requested Australia, under ROP r86 not to deport T to Malaysia or to any country where he would be likely to face the death sentence. Australia requested that this request be lifted because of assurances from Malaysia that persons sentenced for an offence committed overseas would not be prosecuted for a charge relating to it

P L v FRANCE
Judgment of the ECtHR, 2 April 1997 P was accused of sexual abuse of his wifes three daughters by a previous marriage and he admitted the offences involving the two elder children. He was informed that he was under judicial investigation in respect of a number of aggravated rape offences and remanded in custody. In October 1989 the order appointing the investigating judge was annulled at the prosecutors request because it only bore a stamp reproducing the president of the court concerned and P was released. Another investigating judge had been appointed in August 1989 and in December 1989 P was again informed that he was under judicial investigation and remanded in custody. He was committed for trial in October 1991 and convicted the following month. The court accepted that there were mitigating circumstances in Ps case and sentenced him to seventeen years imprisonment. The judge responsible for execution of sentences refused Ps request that the initial period of detention on remand should be deducted from his sentence. The prison service subsequently stated that this period could not be taken into account because the proceedings concerned had been declared null and void and were, therefore, deemed never to have existed. Ps application to the president for a pardon, seeking remission for this period was dismissed in February 1995. P complained about the failure to reduce his sentence by the initial period of dentention on remand and the

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but only for offences that might have been committed there and submitted that, according to its inquiries, this had never occurred in similar cases. It also submitted that preventative detention was not automatic and was unlikely given his limited knowledge of the trafficking in which he was involved. It requested the communications admissibility and merits to be examined simultaneously. The Committee held: (1) (14-1) that Australia, although challenging the communications admissibility, had provided information and observations on the merits so that both matters could be considered pursuant to ROP r94(1); (2) that the claims that T would face unequal treatment in a trial and that his deportation would violate rights to family life under Arts 17 and 23 had not been sufficiently substantiated and were, therefore, inadmissible under OP Art 2; (3) that there were no obstacles to the admissibility of the remaining claims; (4) that the existence of a real risk that the rights under the ICCPR of a person to be deported will be violated in another jurisdiction was to be deduced from the intent of the country to which the person concerned was to be deported, as well as from the pattern of conduct shown by the country in similar cases; (5) that, although Malaysias assurances did not as such preclude the possibility of Ts prosecution for drug offences, there was no evidence that it had any intention to do so and inquiries by Australia found that in similar cases no prosecution had occurred; (6) (13-2) that, as it could not thus be concluded that it was a foreseeable and necessary consequence of Ts deportation that he would be tried, convicted and sentenced to death, Australia would not violate his rights under Art 6 and SOP Art 1 if the decision to deport him were implemented; (7) (141) that, in assessing whether there was a real risk of T being subjected to caning, the information before it did not indicate that this was the foreseeable and necessary consequence of Ts deportation from Australia and the latter would not, therefore, violate its obligations under Art 7 if it deported T to Malaysia; (8) that, although it was likely that T would be detained for questioning upon his return to Malaysia, he had not challenged the submission that preventative detention was not automatic and was unlikely given his limited knowledge of the trafficking in which he was involved; and (9) that his deportation to Malaysia could not, therefore, amount to a violation by Australia of his rights under Art 9. Comment: This ruling establishes that parties to the SOP are bound not to extradite or remove someone to a country where they face a real risk of capital punishment. It thus goes beyond the position under the ICCPR alone where it is only the particular means of execution (i e, one contrary to Art 7) which would operate as a bar on removal to a given jurisdiction in such circumstances; see Ng v Canada, (1994) 8 Interights Bulletin 92. It also accepts in principle that the risk of preventative detention (and presumably any arbitrary detention) could also make deportation or extradition improper and may thus be seen as an implicit rejection of the Australian submission that the principle first established at the international level in Soering v United Kingdom, Ser A No 161 was only applicable to the most fundamental human rights. However, the apparent gap between the two positions is probably not that great in view of the need to demonstrate that a real risk exists. The Committee was right not to rely on assurances from Malaysia and the investigations by Australia into the likely outcome for T were clearly influential in the absence both of specific indications of proposals by the former country with respect to him and precedents supporting his fears (cf H L R v France, Inhuman and Degrading Treatment, supra). Scheinin dissented firstly on the basis that it was inappropriate to join admissibility and merits as a matter of course (considering in particular that more comments from Australia on the family life point were needed) and secondly because he did consider the risk of a violation of Art 7 to have been made out (distinguishing the case from A R J v Australia, (1997) 11 Interights Bulletin 118). Klein and Kretzmer also dissented, taking the view that there was sufficient evidence to establish a risk that the death penalty would be imposed; it approached the issue from the viewpoint that, as a mandatory penalty for possession of heroin existed, it was not enough for Australia to show that it knew of no cases where this had occurred but that there should be evidence (as in A R J) that charges had not been brought against people in a position comparable to that of T. Certainly it will be hard to secure the protection of this still developing area of the law without specific information relating to the person seeking to avoid extradition or deportation.

Medical

treatment - loss following deportation unacceptable - ECHR Art 3

See INHUMAN AND DEGRADING TREATMENT, D v UNITED KINGDOM, supra.

POLITICAL PARTICIPATION
Parliamentary

candidate - disqualification properly imposed - ECHR Prot 1 Art 3

GITONAS and OTHERS v GREECE

Judgment of the ECtHR, 1 July 1997 G, an employee of a private bank, had been seconded to the post of deputy head of the prime ministers private office for nearly thirty months. Almost a year later he was a successful parliamentary candidate in the 1990 general election but three members of the electorate applied for an order annulling the result on the basis that his post in the prime ministers office meant that he was covered by constitutional restrictions on salaried civil and public servants, officers and members of the armed forces, mayors and governors of public law entities and public undertakings standing for election. There were two restrictions: the first on standing where such persons had not resigned before becoming candidates; and the second (which did not apply to officers of the armed forces, mayors or the chairman of public law entities) in respect of candidacy for any constituency where such persons had performed their duties for more than three months in the preceding three years, except for ministerial permanent secretaries for whom the period was the last six months of a four-year parliamentary term. The order requested in respect of G was granted by the special supreme court (9-2) on the basis that, although he was seconded, he had chosen to receive the remuneration attaching to a permanent post to which the second set of constitutional provisions concerned applied, notwithstanding that it was not expressly mentioned in them and that they did not generally apply to posts in the prime ministers private political office. P had held the post of director-general of a television channel operated by a publicly-owned company until about six months before the same general election, in which he had also been a successful parliamentary candidate. His election, following a challenge by a member of the electorate, was annulled by the special supreme court (6-5) on the basis that he came within the second set of constitutional restrictions on standing as a parliamentary candidate. S had held the post of director-general of a second television channel also operated by a publicly-owned company until about nine months before the same general election and in which he had also been a successful parliamentary candidate. His election, following a challenge by another candidate, was annulled by the special supreme court on the basis that he came within the second set of constitutional restrictions on standing as a parliamentary candidate. K had been a deputy director of the social security fund until a month before the 1993 general election in which he was a successful parliamentary candidate. His election, following a challenge by another candidate, was annulled by the special supreme court (6-5) on the basis that he came within the category of governor of a public law entity barred by the second set of constitutional restrictions on standing as a parliamentary candidate since the governor of the fund had delegated various powers to him and notwithstanding that he was not subject to the civil service code. Gi had also been a deputy director of the social security fund until a month before the 1993 general election in which he was a successful parliamentary candidate. His election, following a challenge by another candidate, was annulled by the special supreme court (6-5) on the same basis as that of K. The applicants complained about the annulment of their elections and the Commission found breaches of Prot 1 Art 3(9-8) in respect of G, P and S, (16-12) in respect of K and (14-12) in respect of Gi.

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The Court held: (1) that the subjective rights to vote and stand for election in Prot 1 Art 3 were not absolute and States enjoyed considerable latitude in establishing rules governing the status of parliamentarians, including criteria for disqualification; (2) that the present disqualifications served a purpose essential for democratic regimes, namely, ensuring equality of influence by candidates and protecting the electorate from pressure by officials who might enjoy substantial prestige in the eyes of ordinary citizens; (3) that, although the system was complex, there were no incoherencies and it could not be described as arbitrary; (4) that the special treatment accorded by the constitution to certain posts in the first set of restrictions (requiring merely resignation) concerned persons who either owed their position directly to the electorate or were subject to parliamentary scrutiny; (5) that the objective establishment of criteria for disqualification which prevented the special supreme court from having regard to any special features of the case was not unreasonable having regard to the enormous difficulty in proving that a position in the civil service had been used for political ends; (6) that, although the positions held by the applicants were not among those expressly referred to in the constitution, this did not guarantee them a right to be elected and the special supreme court had sole jurisdiction to decide any dispute over disqualifications; (7) that there was nothing in that courts judgments to suggest that the annulments were contrary to Greek legislation, arbitrary, disproportionate or thwarted the free expression of the opinion of the people in the choice of the legislature; and (8) that there was, therefore, no violation of Prot 1 Art 3. Comment: The Courts overriding concern was that the criteria for disqualification should not impede the expression of the will of the people through free, fair and regular elections. The actual outcome does not seem entirely objectionable since the activities of those affected came within the range of those generally subject to some sort of disqualification in a parliamentary democracy and the Courts reluctance to interfere with the domestic interpretation of the law is consistent with established practice. Although the law did lack clarity, the interpretation did not seem so bizarre as to call into doubt whether the disqualifications effected were prescribed by law. However, the Courts acceptance of the differential treatment of the two groups seems a little indulgent in that those who must both resign and not have occupied a post in a constituency for a substantial period will include persons who are unlikely to be in a position to use their office to promote electoral support; it would be remarkable if the activities of most civil servants could have a positive effect on their electoral chances a year after leaving a post, let alone the two and three-quarter years envisaged by the present law. Certainly it is questionable whether the bar on contesting office for such a period which the law imposed on a low-level civil servant or a private in the army could seriously be regarded as needed to prevent undue influence on the electorate.

PRIVATE LIFE
Deportation

did not have disproportionate effect - ECHR Art 8

See FAMILY LIFE, BOUCHELKIA v FRANCE, supra.

Medical

data - disclosure about third party could be required for prosecution - ECHR Art 8

Z v FINLAND
Judgment of the ECtHR, 25 February 1997 Z (a Finnish national) was married to X (who was not Finnish) when the latter was convicted in March 1992 of raping O. X was subsequently informed that the result of a blood test performed after his conviction indicated that he was HIV positive. In the meantime the police had opened an investigation into an alleged attempted manslaughter by X

through his having deliberately subjected M to a risk of HIV infection. The Commission, relying on the police investigation record and minutes of later court proceedings, found that the police had informed M during an interview with her that Xs spouse (Z) was HIV positive but this was disputed by Finland. T, Ms boyfriend, met Z and asked her whether X was an HIV carrier and in April 1992 he telephoned her, citing passages from confidential court documents relating to the trial concerning O. Later that month the police interviewed T about his telephone conversation with Z and advised M that X was also infected. Z refused to be interviewed by the police, relying on the right not to give evidence against a spouse. The prosecutor charged X with sexual assault on M who also brought a charge of attempted manslaughter against him. At a public city court hearing X refused to reply to a question by Ms lawyer as to whether Z was also an HIV carrier. In May 1992 the court decided, at the parties request, that the case should be held in camera. M confirmed that the police had told her Z was HIV positive and T gave evidence of his telephone conversation with her. L, a senior doctor at the hospital where X and Z had been treated, transmitted copies of Xs medical records (with his consent) to the prosecutor but omitted references to Z. The court summoned Z to give evidence but she again relied on her right not to do so. A large-circulation newspaper, in a report of Xs trial, stated in June 1992 that he was infected with HIV but that it was not known whether Z was as she had refused to give evidence. The court then ordered L, despite his objections, to give evidence and he disclosed the medical data concerning Z previously omitted from Xs records. It also ordered, as an interim measure, that the file (including the transcripts of this evidence) be kept confidential. X was subsequently arrested following two more complaints of rape. Z again refused to give evidence against X, fearing that the documents in the case (including any statement made) would not remain confidential. A further rape complaint against X was lodged with the police and an officer added to the record a statement that X had already been found to be HIV positive in 1990. Finland claimed that it was the complainant who had told this to the police. Between October 1992 and March 1993 the public prosecutor charged X with the attempted manslaughter and some of the complainants also brought such charges against him. X refused on several occasions to answer questions from the complainants lawyers as to whether Z was HIV positive and when he had become aware that she was infected. A second doctor who had treated X was required, despite his objections, to give evidence for the prosecution and to disclose information about Z. L was also required to do so for a second time. On this occasion he read a letter to the court from Z in which she objected to this circumvention of her right to refuse to give evidence against X. The court subsequently required a psychiatrist and other doctors who had treated Z to give evidence, despite their objections, and another doctor confirmed that a blood test had shown Z to be HIV positive in August 1990. Z then agreed to give evidence as the matters relating to her had already been dealt with in other ways and she stated that she had not been infected with HIV by X. In the meantime the police, under orders from the prosecution, carried out a search at the hospital where X and Z had occasionally been treated and, having seized all the records concerning her, appended them to the record of the investigation concerning him. The records noted when Z was found to be HIV positive, her belief about his infection and his denial that he was, as well as his failure to be tested. The police also seized results of laboratory tests and examinations on matters other than the existence of HIV in Zs blood, including information about her previous illnesses, her mental state and a self-assessment of her quality of life. The court included copies of the seized records in its case file. It would have been possible for Z to have challenged before the court whether the seizure was to remain in force. In April 1993 a leading daily reported the seizure of Zs medical records with reference to X being accused of HIV rapes. It also gave her name in full and stated that she was a patient in a unit treating those suffering from HIV. The court then, despite his objections, heard expert evidence from a doctor who had interviewed Z for research purposes. X was convicted of three counts of attempted manslaughter and one of rape. The court published the operative part of its judgment, an abridged version of its reasoning and an indication of the law which it had applied. It ordered that the full reasoning and the documents in the case be kept confidential for ten years, although X and the complainants had requested a longer period of confidentiality (this could last for up to forty years). The complainants, X and the prosecutor all

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appealed and Xs lawyer also informed the appeal court that Z also wished the confidentiality order to be extended. The appeal courts judgment upheld Xs three convictions for attempted manslaughter and (relying on when Z was found to be an HIV carrier, her evidence about informing X of this and of suspecting that she had infected him and his refusal to be tested) convicted him of two further such counts, increased his sentence and upheld the ten-year limit on the confidentiality of the case documents. Various newspapers reported the judgment after receiving it by fax from the appeal court. One of the reports stated that the conviction had been based on the statement of Xs Finnish wife, mentioning his name in full and referring to the courts finding that Z was HIV positive. The supreme court dismissed Zs application for an order quashing or reversing the appeal courts judgment as being out of time and without standing respectively. Z also made, but later withdrew, a request that the police investigate who had informed them that she was HIV positive. X and Z divorced in September 1995. Z complained about (a) the orders to give evidence and disclose information about her in the proceedings against X, (b) the seizure of her medical records and their inclusion in the investigation file, (c) the ten-year limit on the trial records confidentiality, (d) the disclosure of her identity and medical data in the appeal court judgment and (e) the absence of an effective remedy. The Commission found a breach of Art 8 and no need to consider whether there was a breach of Art 13. Z complained before the Court that the appeal courts reasoning was motivated by the fact that she had been a woman married to a black person from Africa. Finland submitted that any compensation awarded to Z should not exceed the awards made in respect of Xs victims, the highest of which had been FIM 70,000. The Court held: (1) that a leak to the press of confidential medical data concerning Z for which Finland could be held responsible had not been established; (2) that Zs allegation of discriminatory treatment could not be entertained as it was a new complaint and not an elaboration of ones found admissible; (3) that the measures complained of interfered with Zs private and family life but there was no reason to suggest that they did not comply with Finnish law or were insufficiently foreseeable; (4) that the actual importance of Zs medical data in Xs trial was not relevant to the legitimacy of the aim of the measures concerned, namely, to prevent crime and protect the rights of others; (5) that, given the public interest in ensuring the transparency of court proceedings, the limitation on the datas confidentiality could be seen as aimed at protecting the rights and freedoms of others but not at preventing crime; (6) that it was doubtful whether the publication of Zs full name as well as her medical condition following their disclosure in the appeal courts judgment pursued any legitimate aim under Art 8(2) but it was unnecessary to decide this issue in view of holding (19) below; (7) that protecting the confidentiality of health data was crucial not only to respect for a patients privacy but to preserving his or her confidence in the medical profession and the health services generally; (8) that these considerations were especially valid as regards information about a persons HIV infection and any measures compelling its communication or disclosure without the patients consent called for most careful scrutiny, as did the safeguards designed to secure an effective protection; (9) that a patients interests and those of the community as a whole might be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings; (10) that, although Z might not have had an opportunity to be heard directly by the competent authorities before they took the measures, the decisionmaking process leading to them was such as to take her views sufficiently into account for the purposes of Art 8 and it should be noted that it was possible both to challenge the seizure before the city court and to apply for an order quashing the appeal courts judgment insofar as it permitted information about her to be made accessible after 2002; (11) that, as the orders requiring Zs doctors and psychiatrist to give evidence were (a) exclusively to obtain evidence as to Xs possible involvement in serious offences, (b) subjected to important limitations and (c) were accompanied by effective and adequate safeguards against abuse, there was no reason to question their extent; (12) that it was not satisfied that potential and actual HIV carriers were likely to be deterred from undergoing blood tests and from seeking treatment; (13) that the orders were, therefore, supported by relevant and sufficient reasons which corresponded to an overriding requirement in the interest of the

legitimate aims pursued and there was a reasonable relationship of proportionality between those measures and aims; (14) that the seizure of Zs medical records was complementary to these orders and subject to similar limitations and safeguards; (15) that the fact that seizure was ordered by the prosecution and not by a court did not of itself give rise to misgivings under Art 8 as (a) the legal conditions for it were essentially the same as for the orders to give evidence and (b) the court had already decided that two doctors should give evidence and required the others to do so shortly afterwards; (16) that, although the material was alleged to have been either irrelevant or not decisive in the trial, there was no reason to doubt the assessment by the national authorities about its potential relevance; (17) that the seizure of the records and their inclusion in the investigation file were supported by relevant and sufficient reasons whose weight overrode Zs interest in the information concerned not being communicated and the measures were proportionate to the legitimate aims pursued; (18) that, as Z had already been subjected to a serious interference with her private and family life, the further interference which would be suffered if the medical information became accessible to the public after ten years was not supported by reasons which could be considered sufficient to override her interest in the data remaining confidential for longer; (19) that the implementation of the order making the material accessible as early as 2002 would, if implemented, amount to a disproportionate interference with her private and family life but it was for Finland to choose the means for discharging its obligations under Art 53; (20) that, having regard to (a) the discretion both to omit any names in the judgment and to publish an abridged version of the reasoning, (b) the opposition of Z to the disclosure of the information to the public which was evident from the information given to the appeal court by Xs lawyer about her wishes for the confidentiality order to be extended beyond ten years (irrespective of any express request to omit disclosure of her identity and medical condition) and (c) the considerations in holding (18), the impugned publication was not supported by any cogent reasons and was a violation of Art 8; (21) that, as it had taken the alleged lack of remedies into account in relation to Art 8, it was not necessary to examine them under Art 13; (22) that in assessing non-pecuniary damage it was not bound by domestic practices but could derive assistance from them; (23) that Z should be awarded FIM 100,000, assessed on an equitable basis, in respect of non-pecuniary damage; (24) that not all the costs and expenses claimed by Z were necessarily incurred but she should be awarded FIM 160,000, assessed on an equitable basis less the legal aid received; and (25) the statutory rate of interest applicable in Finland was 11% per annum. Comment: The Court took account of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data and COM Recommendation R(89) 14 on the ethical issues relating to HIV infection in reaching its conclusions on the application of Art 8 in this case. It is not surprising that it expected privacy interests to yield to some extent and rightly did not judge the interference with them by reference to their actual, as opposed to potential, success in serving the competing interests such as the prevention of crime; the actual relevance of Zs data could not be decisive but this might not have been acceptable if its irrelevance was patently obvious before requiring disclosure of it at the trial. The ruling establishes that disclosure of such data without the patients consent is not to be lightly accepted. It also emphasised the importance of the patient being heard on the issue of disclosure in proceedings where it is a third party and the need for some means of challenging any order to this effect. However, it undermined the procedural protection by allowing seizure of Zs medical records to be ordered by the prosecution and it is not entirely clear that this was unproblematic because it was done on the same basis as a court order to give evidence; the perspective of a court and the prosecution in applying the criteria may not be the same. The intrusion was mitigated by the later possibility of court challenge and it may be significant that, unlike in other cases of seizure, the intrusion was not actually on the applicants own premises (cf Funke v France, (1994) 9 Interights Bulletin 35). There is a clear distinction between the need of a court to have the evidence and its availability to the wider public. The Courts ruling on the inadequacy of the period of protection is, therefore, a significant indication of the need of domestic courts to consider the privacy interests of those who testify and the Court rightly concluded that the

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full identification of Z was not justified. Such disclosure could still be required by competing interests such as the prevention of crime and the protection of others but the Court understandably doubted whether these concerns could be invoked in this case. Judge De Meyers dissent was based on the view that the requirements of criminal proceedings could never justify breach of the doctor/patient relationship. He also called for the Court to banish the margin of appreciation concept from its reasoning but this is unlikely to receive much support despite continuing concern as to way in which this qualifies the protection afforded by the ECHR. The view that there was no responsibility for the leak of the data to the police perhaps reflects the lack of a robust approach to the underlying problem; certainly there must be doubts as to whether information in official hands could have been independently obtained and, where official control exists, the burden on the State ought to be to disprove a leak (cf the approach to ill-treatment in police custody in Tomasi v France, (1994) 8 Interights Bulletin 13). The Court was also a little too conservative on the discrimination point; it is certainly questionable whether it was intended to be a discrete complaint as opposed to an aggravating element of the failure to provide adequate protection for Zs personal data. The approach to nonpecuniary damage does not really explain the rationale for the amount but the Court rightly did not accept Finlands submission that Z should get less than Xs victims; the latter awards may be inadequate and should not prevent the Court from evaluating the loss actually suffered by the applicant before it. Medical

data - inadequate restrictions where contained in court records - ECHR Art 8 data - seizure could be ordered by prosecutor - ECHR Art 8 treatment - loss following deportation unacceptable - ECHR Art 3

imprisonment for aiding and abetting keeping a disorderly house, possession of an indecent photograph of a child, assault occasioning actual bodily harm and abetting such an assault; three years imprisonment for unlawful wounding, assault occasioning actual bodily harm and aiding and abetting both offences; and two years and nine months imprisonment for assaults occasioning actual bodily harm, as well as aiding and abetting such an assault. The trial judge stated the court would have dealt equally with such conduct if it had been carried out by heterosexuals or bisexuals. The appeal court dismissed their appeals against convictions but, as they did not appreciate that their actions were criminal, reduced their overall sentences to two years, six months and three months imprisonment respectively. The house of lords dismissed (3-2) a further appeal on the issue of whether lack of consent had to be proved for guilt to be established where actual bodily harm was occasioned in a sado-masochistic encounter. The majority judgments emphasised the unpredictably dangerous nature of the violence inflicted in sado-masochistic encounters and that serious injury had been avoided by good luck rather than good judgment. Subsequently the appeal court in the case of Wilson allowed a husbands appeal against his conviction for assault occasioning actual bodily harm after he had branded his initials with a hot knife on his wifes buttocks with her consent. It emphasised that she had instigated the branding and that consensual activity between husband and wife was not a proper matter for criminal investigation. The proceedings against L, J and B were given wide press coverage and all the applicants lost their jobs. J required extensive psychiatric treatment and L died in May 1996. The applicants complained about their convictions and the Commission, considering it inadmissible as regards Art 7, found a breach of Art 8. The Court held: (1) that, having regard to (a) the considerable numbers involved, (b) the recruitment of new members, (c) the provision of specially-equipped chambers and (d) the filming and distribution of the tapes, it may be open to question whether the sexual activities fell entirely within the notion of private life in the particular circumstances of the case; (2) that it would not, however, examine this point of its own motion as it was not disputed that the criminal proceedings resulting in the applicants conviction interfered with their private life; (3) that it was also undisputed that the interference was in accordance with the law and pursued the legitimate aim of protecting health or morals; (4) that activities involving the infliction of harm, whether in the course of sexual conduct or otherwise, could be regulated through the operation of the criminal law; (5) that the significant degree of injury or wounding inflicted in this case could not be characterised as trifling or transient and sufficed to distinguish it from other cases involving consensual homosexual behaviour in private between adults; (6) that, although the injuries were not severe and medical treatment was not required, regard could be had not only to the actual seriousness of the harm caused but also the potential for harm inherent in the acts in question when deciding whether to prosecute; (7) that there was no evidence in either the conduct of the proceedings or in the house of lords judgment that the applicants had been singled out because of the authorities bias against homosexuals and the latter was based on the extreme nature of the practices and not the sexual proclivities of the applicants; (8) that, in any event, the facts in the Wilson case were not at all comparable in seriousness to those in the present case; (9) that the reasons given by the national authorities for the measures taken were, therefore, relevant and sufficient for the purpose of Art 8(2); (10) that, given that (a) only a few charges were selected for inclusion in the prosecution case and (b) the fact that the applicants did not appreciate the criminality of their actions was recognised by reducing the sentences on appeal, these measures could not be regarded as disproportionate; (11) that there was, therefore, no violation of Art 8; and (12) that it was unnecessary to determine whether the interference could be justified on the ground of the protection of morals but this finding should not be understood to call into question a States prerogative on moral grounds to seek to deter acts of the kind in question. Comment: The fact that the Court left open the issue of whether the activity in this case fell within private life is disappointing but is not surprising and the manner of its expression suggests a strong doubt on the point; cf its unwillingness to attach significance to the fact that a film was being shown to members of a private club when judging the acceptability of this being banned (Otto-Preminger-Institut v Austria,

See Z v FINLAND, supra. Medical

See Z v FINLAND, supra. Medical

See INHUMAN AND DEGRADING TREATMENT, D v UNITED KINGDOM, supra.

Sado-masochistic

acts could be penalised -

ECHR Art 8

LASKEY JAGGARD and BROWN v UNITED KINGDOM

Judgment of the ECtHR, 19 February 1997 L, J and B had taken part in sado-masochistic encounters with as many as forty-four other homosexual men over a ten year period. These mainly involved maltreatment of the genitalia and ritualistic beatings, either with the assailants bare hands or a variety of implements. There were instances of branding and infliction of injuries which resulted in the flow of blood and left scarring. These activities, which sometimes took place in rooms equipped as torture chambers, were consensual and conducted in private for no apparent purpose other than the achievement of sexual gratification. A victim was always able to stop an assault, infection or permanent injury did not arise and medical attention was never required. L was involved in recruiting new participants to the events which were videoed. The tapes produced were distributed amongst members of the group but they were not sold or used by other persons. The police, in the course of routine investigations, came into possession of a number of the tapes and the applicants, with several other men, were charged with assault, wounding and related offences. One of the charges involved a defendant who was under twenty-one years old, the age of consent to male homosexual practices. The assaults were numerous but the counts were limited to a small number of exemplary charges. L, J and B pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the victims as a defence and they were convicted of the other offences. Their sentences were respectively: four years and six months

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(1995) 9 Interights Bulletin 118). It is, however, a questionable stance given that much of social life can take place in a public environment without losing the protection of Art 8; although public display will undoubtedly be a factor in determining whether particular conduct is protected, the nature of the activity is probably more important in defining an act as private. It may well be that the numbers involved could justify regulation of a particular activity but that consideration should not be in itself sufficient to prevent it being part of private life. A similar view might be taken of recruitment; all personal interaction with another requires some initial contact with others to be made. There can be no argument with the Courts view that the infliction of physical harm can - even in the course of sexual conduct - be a justification for regulation. However, even though the harm here may have been significant, the Court does not really seem to have tested the need for the intervention in this case. It may well be that the judges involved in the case did not show bias against homosexual conduct but the Court ought to have considered whether different standards were being applied to heterosexual conduct (as the Wilson case suggested, not least because it was decided by reference to lack of aggressive intent rather than the degree of pain suffered) in deciding whether there was sufficient harm being inflicted in order to merit State intervention. Moreover the wider context of when consent can be given to the infliction of serious harm ought to have been explored; the approach to boxing in which death and brain damage do occur is in marked contrast to the consequences of the activities being pursued by the applicants. The tendency to regard this as outside the sphere of private life is probably also reflected in the view that the penalties were limited; the ready acceptance of imprisonment for sexual conduct between adults is disturbing. The ruling was based explicitly on health as a justifiable restriction but the lingering impression was that concern about the protection of morals was shaping the conclusions being reached. This concern became much more explicit in the concurring opinion of Judge Pettiti who warned of the dangers of unrestrained permissiveness and asserted that the protection of private life concerned a persons intimacy and dignity, not the protection of his basesness or the promotion of criminal immoralism. His judgment might, however, also be seen as an illustration of how the width of the margin of appreciation accorded to a State appears to reflect the degree of judicial disapproval for the conduct being regulated.

impression that argument on the merits had been presented and (b) the judgment indicated that all Ps documents had in fact been filed ((1995) 9 Interights Bulletin 84). The Court granted a request by the ECmHR for revision of the judgment made after P had obtained certain documents which he had previously been unable to produce in response to a request by the Court ((1997) 11 Interights Bulletin 26). These included a letter from one of his lawyers (C) in the appeal to another (D) (which certified that the appeal court president had stated that the case would be adjourned and that the court did not have all the documents before it) and the list of documents contained in the appeal file (which France, erroneously, had previously informed the Court had been destroyed). The list made no mention of the filing of any of the 959 documents constituting Ps file for the case on the merits. P claimed that the documents proved that no hearing had been held on the merits by the appeal court. The Court held: (1) that its task was confined to deciding whether the two new documents actually cast doubt on the conclusions reached by the original Chamber in 1993; (2) that Cs letter was merely a covering letter by which he communicated to D a copy of his letter of the same day to P and only that last letter and Ds reply contained any information concerning the course of proceedings before the appeal court; (3) that the ECmHR had transmitted those documents to the Court and it had had regard to them in its 1993 judgment; (4) that the list of documents contained in the appeal file was a mere note of procedural documents and pleadings lodged, with none of the entries referring expressly or otherwise to the hearing in question; (5) that the documents on which the ECmHR based its request would not have had a decisive influence on the 1993 judgment and did not constitute grounds for revision; and (6) that the request for revision was, therefore, unfounded and should be dismissed. Comment: Although it might have appeared that there was fresh evidence in support of Ps claim not to have had a fair hearing, the conclusion that what was now submitted had added nothing to what was already available inevitably meant that the request for revision of the original judgment had to be refused. Nevertheless the case indicates both that revision is a possibility where access to evidence is obstructed at the time of the original hearing and the need to ensure that the latter possibility is forestalled as much as possible by the Court if its time is not to be consumed by attempts to reopen proceedings. Challenge

PROCEDURE
Alternative

mechanism - effect of invoking different right not resolved - ECHR Art 27(1)(b) not authorised by deceaseds heirs struck out - ECHR Art 25

to victim status could be made for first time by preliminary objection ECHR Art 27 - inapplicable to law not in force when made - ECHR Art 64(1)

See PROPERTY, GUILLEMIN v FRANCE, infra. Reservation

See FAIR HEARING, PAUGER v AUSTRIA, supra. Application

See FAIR HEARING, PAUGER v AUSTRIA and STALLINGER and KUSO v AUSTRIA, supra. Striking

See FAIR HEARING, PASKHALIDIS and OTHERS v GREECE, supra.

off justified by applicants reason for not continuing with claim - ECtHR ROP (A) r 49 limit - continuing situation involved ECHR Art 26

Judgment

- revision not justified by evidence - ECtHR ROP (A) r58

See LIBERTY AND SECURITY, P L v FRANCE, supra. Time

PARDO v FRANCE (Revision)

Judgment of the ECtHR, 29 April 1997 P had complained about the lack of an opportunity to plead his case in proceedings which had upheld an order requiring him to contribute to the deficiency in the assets over liabilities of a company that he had managed. He had claimed that his appeal had been rejected despite the court having only part of the file before it and despite the president having stated that the hearing would be adjourned to a later date. In 1993 the Court had held (4-3) that there was no violation of Art 6 because the documents produced by P did not provide prima facie evidence of the accuracy of his version of the events but (a) the record of the hearing ruled out the possibility of a further one and gave the

See FAIR HEARING, HORNSBY v GREECE, supra.

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PROPERTY
Expropriation

- compensation not paid within reasonable time - ECHR Prot 1 Art 1

GUILLEMIN v FRANCE
Judgment of the ECtHR, 21 February 1997 G owned a plot on which there was a building used as a secondary residence by a member of her family. The plot fell within land needed for the development of a residential area in a town and in September 1982 the mayor applied to the expropriations judge for an order transferring it to the municipality and setting the amount of compensation to be paid to her. The following month there was a declaration by the dpartements prefect that the compulsory purchase of all the land concerned was in the public interest and in respect of which G brought proceedings in the administrative court in November 1992. Such a declaration was required before an expropriation moved from its administrative or judicial stage. The expropriation order was granted in December 1982 and she appealed against it in March 1983. Four months later the development corporation responsible for carrying out the scheme informed G that she should have vacated her plot two weeks beforehand and the town council also demolished its fence, buildings, service infrastructure, vegetable garden and orchard. The appeal courts expropriation division increased the amount of compensation payable in respect of the plot to FRF 221,858 in October 1983 and this was held at the official deposits bank. G lodged appeals with the cassation court against the expropriation order and the appeal court judgment in December 1982 and October 1983 respectively. In October 1985 the administrative court set aside the public interest declaration because of procedural errors and the recommendation by the inquiry prior to it being made that the scheme should not include existing houses, such as Gs, with sufficient land to make a garden for family use. The council appealed in December 1985 and lodged a pleading four months later. The conseil dtat upheld the administrative courts judgment in March 1989 but refused Gs application for a formal note to be taken that the council had automatically abandoned the proceedings by failing to file a supplementary pleading in time. It also refused her claim for compensation which had been submitted for the first time on appeal. In January 1990 the cassation court set aside the expropriation order and, in consequence, the appeal court judgment, and both its judgments were served on the council in May 1990. The following month G unsuccessfully applied to the council for either restoration of her rights or FRF 4,194,655.65 compensation. She applied to the state counsel in November and December 1990 but in March 1991 he decided to take no action. G challenged the councils implied decision to refuse her application in the administrative court in December 1991, her claim for restoration being accompanied by an application for FRF 1,971,795 compensation for non-pecuniary damage and loss of enjoyment of her property. In January 1992 she brought proceedings in the civil court against the mayor and the development corporation, seeking demolition of the buildings erected by the council on her land, periodic penalties for non-compliance and damages. The defendants submitted that the property could not be returned because plots had been sold on to individual purchasers which had been built on and were occupied. In February 1993 the civil court deferred judgment until the administrative court ruled and listed the case for a hearing in June 1993 by the judge preparing the case for trial. The administrative court held a hearing in May 1994 and ruled two weeks later that the claim for the return of the land was inadmissible as orders could not be issued to the authorities. It also held that the issue of compensation for the illegal expropriation was for the ordinary courts. In the meantime Gs case in the civil court, having been struck from the list in March 1994, was entered on the list again in November 1994 and two months later she filed fresh submissions seeking compensation. In October 1995 the civil court noted that G had implicitly abandoned the application to have the buildings demolished and held that she was entitled to compensation from the council, ordering a valuation report by an expert who received the file the following month. There was an inspection of

the site in March 1996 and the expert filed his report four months later, valuing Gs claim at FRF 1,602,805. The proceedings were still pending in the civil court. G complained about the length of the proceedings, the failure to enforce the judicial decisions in her favour, the loss of her property and the late notice given to vacate her land. The Commission (Second Chamber), considering the first and third complaints admissible, found a breach of Art 6(1) and Prot 1 Art 1. France objected that G was not a victim because the consequences of the violation of her property right had been made good by the courts recognition of the principle of compensation and domestic remedies in the form of her civil action had not been exhausted. The Court held: (1) that the relevant period ran from Gs application to have the prefects declaration set aside and the proceedings were still pending since the action to secure compensation should be included in the period taken to resolve the dispute even though it was begun after the application to the ECmHR; (2) that this period already exceeded fourteen years and was at first sight unreasonable; (3) that expropriation proceedings were relatively complex because they came under the jurisdiction of both the administrative and ordinary courts which could, as in the present case, give conflicting decisions; (4) that as the division of jurisdiction between the courts was not obvious to the civil court, G could not be criticised for not bringing her action for compensation before the right court; (5) that G could also not be held responsible for delays other than on account of organisational difficulties; (6) that the total delay already exceeded what could be regarded as reasonable and there was, therefore, a violation of Art 6(1); (7) that Frances first preliminary objection was not out of time in being made before it for the first time as the civil court ruling on compensation was after the proceedings before the ECmHR had ended but G was still a victim as she remained dispossessed without compensation for an unlawful expropriation; (8) that G had had recourse to all the domestic remedies available and, as the proceedings to which she had been a party at the time of the admissibility decision were slow, it had been unnecessary at that time for her to institute further proceedings in order to comply with Art 26; (9) that, in the particular circumstances of the case, G could not be criticised for not awaiting the outcome of the pending civil court proceedings and the requirement that domestic remedies be exhausted had, therefore, been satisfied; (10) that it was common ground that G had been deprived of her possessions and that the expropriation had not been carried out in a manner laid down in domestic law; (11) that, as the erection and sale of the buildings on Gs land permanently deprived her of the chance of regaining possession, her only course was to seek compensation; (12) that compensation would only be adequate reparation if account was taken of the length of deprivation and it should be payable within a reasonable time; (13) that the court proceedings for compensation had lasted five years so far and no compensation had yet been made, notwithstanding that it could have been agreed on even after the expropriation order had been issued; (14) that the potentially large sum that might be awarded at the end of the pending proceedings did not offset the failure to make any payment and could not be decisive in view of the length of all the proceedings instituted by G; (15) that the question of the application of Art 50 as regards pecuniary damage was not ready for decision and should be reserved, due regard being had to the possibility of an agreement between France and G; (16) that G had already sustained indisputable non-pecuniary damage since she was still in a state of uncertainty and anxiety about the outcome of the proceedings and should be awarded FRF 250,000, assessed on an equitable basis; (17) that G should be awarded FRF 60,000, assessed on an equitable basis, in respect of costs and expenses; and (18) that the statutory rate of interest applicable in France was 6.5% per annum. Comment: The reason for the expropriation was not in principle incompatible with Prot 1 but the lack of a lawful basis meant that it was an unacceptable deprivation. Although the Court has expected restitution as the most appropriate remedy in such cases, there has been a recognition that this is not always feasible (see Papamichalopoulos v Greece (Art 50), (1996) 10 Interights Bulletin 126) and this seems to be the approach readily accepted in the present case. The amount of compensation was not fixed but the illegality is likely to require payment of the full value, notwithstanding that the absence of a procedural failing might have led to a different basis of assessment being justified

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(see Lithgow v United Kingdom, Se A No 102). Moreover the Court underlined that there is a need to take into account both the damage arising from the length of the deprivation of property and the need for payment within a reasonable time. The latter might be mitigated by payment of appropriate interest but the total failure to pay here inevitably led to the finding of a violation. It is the actual payment that provides the remedy and so the acknowledgement of the legitimacy of Gs claim could not deprive her of the status of being a victim. The view that there was also a violation of Art 6 was in accordance with wellestablished case law; an applicant cannot be blamed for the organisational problems of a legal system and there was a good deal of inertia in the handling of the proceedings. The Court rightly did not expect her to undertake further proceedings given the slowness of those already pursued.

conviction does not appear to have been executed and so did not require redress. These two rulings suggest that the Court will only have sympathy with the disregard of an objectionable restriction on a freedom where there has firsst been an attempt to mitigate its effects if that is in fact possible, such as in this case by seeking authorisation which could at least hypothetically have been granted with no difficulty. However, both this ruling and that in Manoussakis still leave open the extent to which the opening of a place of worship in a particular place can be subject to regulation for considerations other than planning and safety. The attempt by the first instance court to exclude preaching and reading from the gospel from the definition of worship appears wellintentioned but mistaken since they are key elements of religious practice.

RELIGION
Authorisation

VICTIM
Applicants

for place of worship granted as part of settlement - ECHR Art 9

death - widow and children could pursue case - ECHR Art 25 not lost by acknowlegement of compensation right - ECHR Art 25

See LIBERTY AND SECURITY, LUKANOV v BULGARIA, supra. Status

PENTIDIS and OTHERS v GREECE

Judgment of the ECtHR, 9 June 1997 The applicants were Jehovahs Witnesses and under a private agreement in June 1990 they rented a room to be used for all kinds of meetings, weddings etc. of the Jehovahs Witnesses. In October 1990 forty-three of the towns residents requested the prosecutor to take measures with a view to removing the Jehovahs Witnesses from the district and he then instituted criminal proceedings against the applicants for having established a place of worship for religious meetings and ceremonies without the necessary authorisation from the recognised (orthodox) ecclesiastical authorities and the religious affairs minister. The police put seals on the entrance door of the room in November 1990. The applicants were acquitted by the trial court on the basis that the preaching and reading of the gospel for which the room had been used did not fall within the definition of worship. It also ordered the seals to be removed and these were never put back despite the applicants subsequent conviction by the appeal court. This court, despite a call for the applicants acquittal by the prosecuting lawyer, considered that the room had been run as a place of worship, with reading and study of the bible, prayer groups and the singing together of psalms. It accepted that there were mitigating circumstances in that there had been no base motives behind the offence but sentenced each applicant to thirty days imprisonment (convertible into a pecuniary penalty of GRD 400 per day of detention) and a fine of GRD 6,000. The cassation court dismissed the applicants appeal that the law under which they were convicted was contrary to the constitution and/or ECHR Art 9. The complained about their convictions and the Commission, having considered the application inadmissible with respect to Arts 6(1),(2) and (3), 7 and 13, found (27-1) a breach of Art 9, no separate issue arising under Art 9 taken with Art 14 or under Arts 10 and 11 (taken with Art 14 or individually) and no breach of Arts 3 and 8 or (27-1) Prot 1 Art 1. In February 1997 the applicants lodged an application with the religious affairs minister for authorisation to open a place of worship and in May 1997 requested that the case be struck out as (a) this had been granted and (b) the difficulties of a general nature would be removed. Greece agreed to this request and the Commission raised no objection. The Court held: (1) that the authorisation was a fact of a kind to provide a solution of the matter under ROP (Court A) r49(2) and, having regard to its judgment in Manoussakis and Others v Greece ((1997) 11 Interights Bulletin 170), there were no reasons of public policy requiring further consideration of the case; and (2) that the case should, therefore, be struck out of the list. Comment: Unlike the Manoussakis case there was no attempt by the applicants to obtain an authorisation to open a place of worship and, although such a request would probably have been refused, this was presumably the reason why the settlement was approved without any payment of their costs; the penalty imposed with respect to their

See PROPERTY, GUILLEMIN v FRANCE, supra.

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Womens Rights and International Human Rights Law

Radhika Coomaraswamy

omens rights continues at the cutting edge of international human rights law and has dramatically changed the interpretation of human rights since the writing of the Universal Declaration on Human Rights. Whether in the field of cultural relativism, humanitarian law and international war crimes, the due diligence standard or the right to sexuality, womens issues have been highlighted as determining the human rights agenda in these fields,
There have fundamentally been two phases of the womens rights movement at the international level. The first phase was the phase of non-discrimination and this culminated in the Convention on the Elimination of Discrimination against Women. It was concerned with discrimination in the fields of health, education, social attitudes, political participation and equal rights within the family. There was no provision on violence against women. The second phase, which began in the 1980s, highlighted violence against women issues and womens rights as human rights. It also saw the creation of an international womens movement which could effectively lobby governments for normative changes with regard to international standards. This phase culminated in the United National Declaration on the Elimination of Violence Against Women and the creation of the post of United Nations Special Rapporteur on Violence Against Women by the United Nations Human Rights Commission. As a result of international agitation, many of the controversial issues in human rights now concern womens rights. For example, cultural relativism is an important challenge to the universality of human rights. Doctrines such as Asian Values, clash of civilisations and other such arguments question the human rights premise that human rights are universal and indivisible. However, the cluster of issues that cultural relativists protect as their own are often related to womens issues within the family. Whether it involves violence against women such as female genital mutilation, sati or dowry deaths or family law and the rights of women within the family, cultural relativists argue that this sphere is not the concern of international human rights and that the cultural relativism must be accepted. There must be tolerance of the diversity of social and cultural practices. (1998/9) 12 INTERIGHTS Bulletin Womens rights activists have responded to this argument by claiming that states, under the UN Charter, accept the duty to respect fundamental rights and freedoms as set out in the Universal Declaration of Human Rights. They also argue that the right to non-discrimination is now a part of customary international law and states are obligated to follow these norms. This position is deeply contested by many states. Many of them rely on their religious law as being supreme and they have taken out reservations on specific clauses of the Convention on the Elimination of Discrimination Against Women as they relate to social practice and family law. Some feminists, especially from the third world, question the arrogance of western feminists in this regard and prefer a gentler approach, attempting to deal with the problem from within through health and education. Cultural relativism remains a highly contested area and womens rights are central to the debate. Another area where womens rights issues are at the cutting edge is with regard to war crimes and international criminal law. Traditional humanitarian law did not list rape or sexual slavery as a war crime or a grave breach of the Geneva Convention. The Nuremberg and Tokyo statutes also did not mention rape as a war crime or crime against humanity. After the recent events in Bosnia and Rwanda the attitude has changed. It began with the Statutes setting up the tribunals in the Hague and in Rwanda that recognised rape as a crime against humanity, and a prosecution strategy that charged rape as torture, wilful killing, enslavement and evidence of genocidal intent. The Statute of Rome of the new International Criminal Court is a major victory for international womens rights activists. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other

form of sexual violence are recognised as war crimes, crimes against humanity and are also included among the acts prohibited in internal conflicts. Enslavement is also expanded to include trafficking in women and children, and torture is redefined so that there is no requirement of it being purposive or the torturer being a public official. Women have pushed for the new definition of torture so that it may be used with regard to nonstate actors. Though the final statute poses many problems for human rights activists, the enumeration of sexual violence is in keeping with many of the standards requested by international activists. The only real problem is the qualification of forced pregnancy with the intent of affecting the ethnic composition of any population, a qualification required by the Vatican. There is also an interpretation of gender as being equated in meaning to sex thus calling into question much of the UN work that has accepted the social construction of sexuality. Another area where womens rights is taking the lead in creating new doctrine is with regard to the private / public distinction and the use of the due diligence standard with regard to the accountability of states. Violence by private actors has not traditionally been of interest to the human rights community. However, the decision in the Velasquez case of the Inter-American Court,1 that held states to a due diligence standard to prosecute private individuals who violate human rights, has created a doctrinal space for the violence against women movement. The Declaration on the Elimination of Violence Against Women states clearly that states are under a due diligence requirement to punish, prosecute and prevent violence against women. In this regard, states are required to give up their traditional attitudes with regard to the privacy of the home and are required to intervene effectively to prevent domestic violence. The first international case on domestic violence and a violation of human rights was filed against Trinidad under the Inter-American convention in the Autumn 1998.2 What constitutes due diligence with regard to state attitudes toward violence against women? Again, the Declaration on the Elimination of Violence Against Women 41

spells it out. States must create a legislative framework and executive policy that allows for the effective prosecution of those who perpetrate violence against women. They must train their police, judiciary, and medical experts in issues relating to violence against women. They are required to set up support services for victims and to collect data and research on the problem of violence against women. They are also expected to engage in education programmes to raise awareness and prevent the practices that lead to violence against women. These are new ideas in human rights jurisprudence and an expansion of the doctrine that makes states liable for the actions of private individuals. In the case of domestic violence there is a positive duty on the part of the state to penetrate the impenetrable fortress that is the family and hold violent men accountable.

The other area where there is evolving jurisprudence prompted by the womens movement is the area of reproductive rights and the right to sexuality. Though international standards do not recognize the right to sexuality as a human right, there is language in international documentation that recognises women as sexual beings who are entitled to a safe and satisfying sex life. This developed out of the 1994 Cairo Conference on Population and was reiterated in Beijing in 1995. But it is a highly contested issue and still remains on the periphery of human rights articulation. It is often said that the Universal Declaration of Human Rights was drafted by dead white men. They would probably not have envisioned the changes to human rights law as it has evolved responding to the

demands of various constituencies. The womens movement is a case study on how international civil society can in fact play a role in defining the contours of international human rights. Their successes since the Vienna Conference on Human Rights is a testament to the fact that committed people with a vision can actually transform international human rights and make it relevant to the lives of ordinary women.

Radhika Coomaraswamy is the UN Special Rapporteur on Violence against Women

1 Velsquez Rodriguez v Honduras, Judgment of 29 July 1988, Inter-American Court of Human Rights, Ser. C No. 4. Admissibilty Nov 3 1998. Report No 63/98 case 11.837

The Right to Development

Danilo Trk

he expansion of human rights law since the adoption of the Universal Declaration of Human Rights has been impressive. The expectation of the General Assembly, which proclaimed the Universal Declaration of Human Rights and called for ... progressive measures, national and international to secure their universal and effective recognition and observance.., has, in many respects, become reality. However, the growth of human rights law has been uneven. Some rights enshrined in the Universal Declaration have been given higher priority than others. This can be explained as a result of political and ideological factors as well as a consequence of the differences in the legal character of different rights. Some among the rights proclaimed in the Universal Declaration were more easily translatable into legal rights and obligations than others. Furthermore, it is necessary to distinguish two types of basic moral precepts which underlie human rights in general: the morality of duty and the morality of aspiration. Human rights which express a higher coefficient of morality or duty are more easily translatable into specific legal standards, while those which are purely aspirational require a higher degree of policy content to become of practical importance.
In the late 1970s the situation changed. The political and economic aspirations of the developing countries were expressed in a comprehensive program of the New International Economic Order which was articulated in the General Assembly documents of 1974 and which, subsequently, started to influence the discourse on human rights. The notion that development is a human right seemed natural to the leaders of the developing world in very much the same way that the right to pursuit of happiness seemed natural to the leaders of American decolonization two centuries earlier. The United Nations tried to express the concept of development as a matter of human rights by the Declaration on the Right to Development, adopted in 1986. That Declaration proclaimed the right to development as an inalienable

human right and emphasized the centrality of the human person in development. It also articulated a number of duties of states which need to be fulfilled to give the human right to development a realistic meaning. The interesting aspect of the Declaration is that the majority of Western countries voted for it together with the developing and socialist countries. Some abstentions could be explained by insistence that human rights belong strictly to individuals and that any implication of collective character of human rights is unacceptable. Some other opponents felt that the Right to Development implies a demand for transfer of resources from the west to the third world. The majority, however, voted in favour and understood that the Declaration on the Right to Development - correctly - emphasizes the right of the individual and the corresponding obligations of the State. Hence it was accepted as conceptually sound albeit (to some) politically questionable. Furthermore, at that moment it seemed that the human right to development would remain the symbol of legitimate aspirations of people in developing countries (more accurately in countries devastated by poverty), in a global effort for the establishment of the New International Economic Order, ie an international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights can be fully realised. However, only very few years later the international environment changed completely. World socialism and the idea of the New International Economic Order collapsed and the socio-economic models

In its Article 28, the Universal Declaration of Human Rights proclaimed that: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realised. This is a provision with a high degree of aspirational content. It is obvious that it cannot be given practical meaning simply by legislating it in the form of legal enactment. It requires a high level of commitment and the corresponding practical policies. Given its very ambitious objective it is not surprising that it remained outside the scope of international standard-setting in the three decades which followed the adoption of the Universal Declaration.

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based on the idea of capitalism and liberal democracy seemed to have prevailed globally. This superficial assumption was generally accepted and contributed to the decision to convene the World Conference on Human Rights in 1993. Its influence is also felt in the concluding document of the conference: the Vienna Declaration and Programme of Action. One of the paradoxes characterising the diverse and somewhat inconsistent final document adopted by consensus at the World Conference on Human Rights is the recognition that the right to development belongs to the body of universally accepted human rights. The right, a child of the ideology of the new international economic order, was now, after the death of its parents, elevated to the status of an integral part of fundamental human rights. This was accepted by consensus which included the United States and other states who had voted against or abstained at the vote on the Declaration of 1986. At the level of declarations, the right to development gained a stronger status. That status has been reaffirmed in a number of resolutions and other United Nations documents adopted in the past five years. How to deal with this phenomenon? Some human rights activists and NGOs reacted with scepticism and suspicion. Their fear of political manipulation is understandable. However, the right to development is here to stay irrespective of the amount of scepticism which may arise as a result of its ambitious character and less than clear content. The aspirations reflected in Article 28 of the Universal Declaration of Human Rights found a new expression. The importance of the right to development for the future depends primarily on whether it will remain only a general moral and political proposition used by the developing world to complement the idea of the universality of human rights (and thus make that idea more realistic) or whether it will also lend itself to translation into specific and meaningful policy recommendations to be elaborated by the United Nations and other international institutions. The second option is clearly preferable. However, its realisation requires greater input of expertise, greater capacity and preparedness of the United Nations human rights bodies to deal with issues of social and economic policy and greater willingness of states to renounce parts of their sovereignty. As is the case on other issues of human rights, the actual development will to a large extent depend on the contribution of non-governmental organisations. Their expertise and the ability to address the issues of social and economic policy which are of critical importance to the realisation of human rights will determine the relevance of the right to development. Danilo Trk is Ambassador, Permanent Mission of Slovenia to the United Nations

Economic and Cultural Barriers to the Global Agenda on Childrens Rights

Bart Rwezaura Introduction

he adoption in 1948 of the Universal Declaration of Human Rights represented a consensus that children, by reason of their physical and mental immaturity, need special care and protection. This consensus was translated into the Convention on the Rights of the Child (CRC) adopted in 1989. The CRC is based on the principles of the best interest of the child; equality of all children; and the childs right to participate in decisions affecting him or her. Its rapid ratification by virtually the entire membership of the United Nations reflects a deepening global concern for the status and welfare of children and constitutes a new era for the childrens rights movement worldwide.
into autonomous members.2 Such a niche is also time specific in that it changes as that societys needs and views about childhood are altered. We can understand the social construction of childhood by looking at the criterion by which a culture assigns adulthood. In social systems where marriage and the birth of children are the most important vocation for a woman, a pubescent girl of 12 years attains adulthood as soon as she is biologically ready to bear children. The definition of crimes against children such as rape, sexual abuse, or even female circumcision, hinges on that communitys construction of childhood. What is defined by the legal system as child-marriage or sexual abuse is not always viewed in the same way by some local community. Where the child is regarded as an economic asset and a social insurer of his or her parents, children are socialised to defer to their seniors and to render unquestioning obedience to them. While in earlier times such deference served as a bond between generations, today it has negative effects on the child, such as conditioning a child to submit without protest to abuse both during childhood and later. The emphasis on parental authority over the childs right to autonomy is not confined to non-western cultures, but also influences government policy in some western countries. In the

However, the reality is that numerous children in the South are dying from preventable diseases while others live in subhuman conditions with no opportunity for formal schooling, vocational training or leisure. The CRC overlooks the underlying practical difficulties of implementing a childrens rights programme in culturally and economically diverse community of nations. In various cultures children are still viewed as the private property of their parents, with some being contracted out as bonded labour or given away to other families as child-brides or domestics. In these societies the interests of the child and those of the adults remain closely intertwined, thus dampening any effort to identify a child as an individual subject of rights. Even in the economically affluent regions of the North, imbalances in the allocation of resources between communities and within households have resulted in many children being undernourished, illiterate and homeless.1 The great challenge of the next millennium is to bridge the gap between the rhetoric and reality of childrens rights.

Social Construction of Childhood

Childhood, argues Shotter does not exist within the child. It is the niche that a society creates for its newborns to develop

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USA, which has not ratified the Convention, conservative politicians still believe that it will undermine the role of the family and thus weaken `family values. In Africa and Asia, however, the fear of undermining parental authority is even more acutely felt because children have traditionally been and are still expected to act as a bridge between generations and to support their parents materially in the latters old age. Inevitably, such fears intensify with the worsening economic situation caused by local and global forces. There are also more general reasons for feeling uneasy about childrens rights in these jurisdictions, as opposition to them could be part of a larger political opposition to the free enjoyment of civil liberties in the community.

labour, child slavery, child trafficking, child abuse and neglect, child discrimination, etc.

Childrens Rights and the Law

In order for the law to achieve its objectives, it must work in partnership with other social and cultural forces. For example, the Daily Mail of Tanzania recently carried a stern warning to parents who do not ensure that their children attend school regularly. When the Daily Mail reporters questioned parents and pupils, they replied that poverty was the main reason why pupils dropped out of school. One former pupil, a 13 year old boy now working in a nearby sand mine, told the Daily Mail that his parents had separated and he was living with his mother. But my mother is sick and cannot work and I am the only boy in the family, so I have taken up the responsibility of feeding my mother and my young sister. In these circumstances the power of the law to make children attend school is greatly undermined by the familys economic status. Local cultures also render the law ineffectual in other ways. For example, the global effort against female genital mutilation and child marriages has failed to achieve significant results. Another difficulty, is the social conditioning of children not to challenge adults even when the adults violate their rights. Power imbalance in the family also impacts on the childrens rights. Thus some mothers will not intervene to defend their childrens rights for fear of putting their own marriages at risk. The problem of enforcing such rights at the international level are even more complex.

childrens rights. Views differ also on the question of whether rights-talk or an alternative approach is best able to promote the best interests of the child. Those who feel uncomfortable about rights-talk are deeply conscious of the individualistic history of rights. They believe in values of duty characterised by mutual support between family members and conducted in a spirit of harmony and respect. In the modern era, however, such claims of family autonomy tend to hide internal oppression of the powerless within families and local communities and tend to perpetuate social inequality, patriarchy and gender hierarchies. Since the CRC represents a global endorsement of the rights of the child, the more productive approach is to find ways in which the different understandings of the CRC can be reconciled and community values can be incorporated in the interpretation of the CRC. Full account should be taken of local cultures and local contexts in the interpretation and application of the CRC, an approach consistent with its framework. A new conception of childhood, comparable to that envisaged by the CRC, has begun to emerge in certain parts of the world and is increasingly reflected in national constitutions, domestic legislation and judicial pronouncements. I believe that, if such an approach is adopted with sensitivity and respect for other cultures and traditions, it will act as a moderating force between those who insist that human rights are culture specific and those who argue that there is a certain minimum standard applicable to all human beings irrespective of the culture or country to which they belong.

Economic Determinants of Childrens Rights

A healthy economy is essential to the building of a viable regime of childrens rights. But economic transformation can adversely impact on children in ways that are less obvious. For example, studies in developing economies have shown that a change from subsistence production to a market economy has had the effect of undermining the relative economic autonomy of mothers. As households become dependent on the market for their recurrent needs, women as mothers lose their economic autonomy and with it the ability to provide effectively for their children. In a market economy the mothers role as a home maker remains unchanged while that of her husband is transformed into a primary breadwinner and a cash machine. To offset the declining family income many women have been forced to enter the labour market, often assisted by their young children. The number of children living without fathers at home is rising rapidly in tandem with the escalating rates of divorce and increasing rates of non-marital births. Moreover, the rising numbers of children living on the streets or in frequent conflict with the law is to some extent a consequence of the declining ability of the family to provide a natural environment for the growth and well-being of children.3 At the same time, the extended familys traditional role as a safety net for vulnerable family members is rapidly shrinking at a time when few developing economies have any social welfare system. The symptoms of a declining household economy are notable in most parts of the world, especially in developing economies. They include domestic violence, unstable family relationships, child 44

A Global Agenda Against Poverty?

The weak economic status of many families, especially in the developing economies, has been the single most important factor contributing to the lack of progress of childrens rights. The economic empowerment of families (broadly defined) is one of the key measures that can raise the status of children. As we have argued elsewhere,4 family empowerment must also be accompanied by a process of democratisation within the family so that women, children, the elderly and others who are politically powerless are given a voice in decision-making and in the management of family resources. The second major barrier is the lack of consensus within communities and between states as to the scope and necessity of

Bart Rwezaura is Associate Professor of Law, Faculty of Law, University of Hong Kong and a founder member of Children and the Law in Eastern and Southern Africa (CLESA)

Cornia GA, Child Poverty and Deprivation in the Industrialised Countries: Recent Trends and Policy Options, Innocenti Occasional Papers (Florence: Unicef, ICDC, 1990). See also Veerman P, Book Reviews, The International Journal of Childrens Rights (1993) Vol 1 No 1, 111-115, 115. John M, Children with Special Needs as the Casualties of a Freemarket Culture, International Journal of Childrens Rights (1993) Vol 1 No 1, 1-22, 1. CRC Preamble. Rwezaura B, Armstrong et al, Parting the Long Grass: Revealing and Reconceptualising the African Family, (1995) 35 Journal of Legal Pluralism and Unofficial Law, 25-73, 57.

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The Critics of the Universal Declaration

Yash Ghai

he UDHR has many admirers; but it has not been without its critics. This article reviews some criticisms, in an attempt to unravel the points of difference between admirers and critics. Debates between the two groups have been polemical and have rested on polarities, with the result that they have been largely unproductive. There is a tendency among the admirers to dismiss somewhat peremptorily the claims of the critics; this is unfortunate. Clarification of differences, and if possible, establishment of some common ground, are urgent for progress in the promotion of human rights. Engagement with opposing views can also be fruitful in deepening our understanding of the nature and purpose of rights.
changing material conditions. It is therefore not surprising that some features that are today claimed to characterise eastern societies have been present in cultures throughout the world at different periods of history. Throughout history, cultures have borrowed from others, producing new mixes. Nor is culture homogenous throughout society; particularly today, the result in large part of globalisation, societies are marked, internally, by sharp distinctions and discontinuities. As an example, in many new states, the culture of universities, armed forces and bureaucracies is primarily modern, even western, while those of large segments of their compatriots is rooted in a different political economy. Diplomats across the world who earnestly and bitterly quarrel over the universality and relativism of rights belong to the same culture, the product of somewhat privileged background, university education imbibing similar sciences and methods, more at home in cocktail circuits than in the heat and dust of their own countries. And similarly their masters, the politicians, live in a common culture driven by hunger for power and operating through intrigue. Implicit in the above argument is that perceptions of human rights are influenced by ones place in society, denying the premise of a uniform view of rights. The interests of hegemonic groups dominate the perception of rights, establishing for them the claims of universalism; weaker sections develop their own modes of resistance to the hegemonic view, and their alternative view of rights. Thus perceptions of rights, as class interests, cut across societies (for example, women, gays, trade unionists, etc in east and west share somewhat similar views on

rights). There is no common core of rights that unite hegemonic groups in different states - but with the increasing role of the market across the world, property rights are valued more than for example, the right of free speech (with commercial speech and information given a higher status than political discourse). The oppressed value more the rights of association and participation. It is clearly desirable that rights should find support in cultural understandings of the community. But rights are not simply emanations of culture; they would be somewhat redundant if they were. Rights - whose moral legitimacy is drawn from several other sources, including a critical analysis of social and economic organisation, international negotiations and agreements, and overlapping inter-cultural consensus - are valuable as the basis of interrogating and critiquing culture. Cultural understandings can be informed (and thereby changed) by notions of fairness, and knowledge of rights can awaken awareness of oppression, and its causes. Rights respond to changing perceptions of justice, reflecting the imperatives of particular economic and political systems. The human rights provisions of the Indian Constitution were adopted to reform Hinduism and to eradicate the well established cultural practice of untouchability and other consequences of the caste system. The new South African Constitution shows ample respect for the cultural diversity of its people, including customary authorities and laws, but the validity of these cultural practices depend on their conformity with the bill of rights. If the concept and substance of rights were drawn only from one cultural or political/economic tradition, and then imposed on the rest of the world, under the guise of universalism, there would indeed be many reasons to oppose them. Both universalists and relativists underestimate the diversity of rights. The universalism/relativism debate is conducted by both sides largely on the basis of civil and political rights. But todays regime of rights is more complex. No single theory of rights dominates todays arrangements for rights. Various values have competed for a place in the pantheon of rights. There are economic, social and 45

I examine two types of criticism of the Universal Declaration: the first attacks its claims of universality; the other, in the name of responsibilities, poses an even more fundamental challenge, questioning the very utility of rights. The two lines of attack are quite distinct, although they overlap in specific contexts, as when the relativist criticism is based on the value placed on duty, in opposition to rights, in a particular society (as in certain assertions of Asian values). I discuss first the relativist attack which states that since an individuals values, needs and aspirations are socially determined, i.e., by the culture of the society in which he or she lives, and since societies vary in their culture, there can be no universal human standards. It is therefore inappropriate to apply external values, masquerading as universal human rights, to judge values and practices of a specific culture. This attack was obvious from the very start of the UN enterprise of drafting universal standards for human rights. Previously rights, even though they were claimed to be based on a universal view of human nature, had been drafted by and for national states, reflecting the concerns of the society or its elites. In recent years the attack has been revived, due undoubtedly to politics of foreign policy, but also by the closer juxtaposition of cultures brought about by globalisation as well as the anxieties that globalisation has provoked. Various assumptions underlie cultural relativism. I examine four of these: (a) the worlds cultures can be divided into distinct categories; (b) each state has a homogenous culture; (c) culture is unchanging; and (d) culture provides a state with its values. All these assumptions are questionable. Culture is dynamic, not static, and responds to (1998/9) 12 INTERIGHTS Bulletin

cultural rights which supplement the older liberal rights. Rights are no longer seen as attached merely to an abstract and autonomous individual; they also belong to individual members or collectivities of specified cultural or social groups. Rights, like those of solidarity, also mediate other kinds of relationships, such as humanitys relationship to the environment which nourishes us. Increasingly we are compelled into a balancing of these interests. Rights are rarely absolute. We contextualise rights both by balancing different kinds of rights, such as property by equality and social rights, and by limitations clauses, such as the interests of the individual with those of the community, as in free speech by ethnic peace and amity (of which the jurisprudence of the Indian Supreme Court provides excellent instances). Such processes provide a basis for inter-cultural dialogues and for adjusting rights to the exigencies of different societies. But they provide for the balances to be struck in a principled way, with a measure of rationality, justification and proportionality, within a framework of generally accepted values. In increasingly complex and globalising societies, such a regime of rights provides both a universalising framework and the means of adjusting rights to local circumstances. It facilitates pluralism without compromising essential principles. Without such binding framework, fair and peaceful co-existence of diverse peoples and cultures would be placed in dire jeopardy. The second criticism of the Universal Declaration similarly suffers from a lack of understanding of the nature of rights. Those who have been supporting plans for a Universal Declaration of Human Responsibilities attribute many of the ills of our present times to the primacy we give to rights. They say that if a person or government seeks to maximise freedom but does it at the expense of others, a larger number of persons will suffer. If human beings maximise their freedom by plundering the natural resources of the earth, then future generations will suffer...The proposed Declaration points out that the exclusive insistence on rights can lead to endless dispute and conflict.... This analysis is an echo of the proponents of Asian or African values, who exult the virtues of their societies which emphasise duties and responsibilities, and thus preserve social harmony. They contrast it with the west, obsessed, as they claim, with the narrow and selfish interests of individuals, which are juridified as rights and then vigorously litigated. These are quite remarkable assertions. Societies in which duties and responsibilities have dominated have traditionally been inegalitarian 46

and hierarchical; duties have served to maintain the subservience of the subordinated groups. The responsibilities of leaders has been largely a rhetorical device for legitimacy, unconnected to reality. Rights, on the other hand, speak more directly to equality. They also speak to the relations of the state, developed under increasing centralisation of power, to citizens. For the most part they do not deal with inter-personal relationships, and hence notions of selfishness and the breakup of communities, often attributed to rights, can scarcely be their consequence (although the conventions for the protection of the rights of children and women have perforce to intrude into this private area, for a large part of their oppression lies in civil society itself). The idea of the exclusiveness of rights explicit in both these versions of responsibilities is a myth; individuals, governments, and most authoritatively, judiciaries, are constantly engaged in establishing limits on rights, invoking the public interest, state security, or public morality, and sometimes the legitimate rights of others. There is at least the notion of negative or passive responsibility here. If governments are allowed to impose regulations for positive acts by individuals, as they would be under the rights and responsibilities doctrine, there is serious danger that the result will be bigotry and intolerance. The attack on rights, associated with the cruder forms of communitarianism, may have resonances in the US. To use them for a broad attack on human rights is to misconceive the purpose of rights in many other parts of the world. Rights in these parts are valued as weapons of the poor. They are the basis of solidarity and of community as it resists fragmentation produced by economic and political forces. They provide for networking among people who fight against oppression, and the greed and selfishness of political leaders and their allies in the commercial and financial corporate world. Few of these rights are in practice granted to or exercisable by the people. To argue that they have produced selfishness and greed is almost obscene. The attack on rights is often an attempt to camouflage the exploitation of individuals and resources by state and corporate power. It is interesting that the InterAction Declaration, which takes as its starting point globalisation, never engages with the exploitation by international capital of communities, labour and resources. And yet human rights supporters would be foolish to dismiss the deep springs of social concern from which some of these impulses arise. There is clearly much that is attractive in persons who are mindful of the concerns of others, who wish to contribute to the welfare

of the community, and who place society above their own interests. No civilised society is possible without such persons. But the cultivation of such virtues does not lie in the denigration of rights; rather it belongs to a different sphere of human enterprise. It is necessary, in conclusion, to come down from the realm of rhetoric, where these debates are located, to the reality of rights. As almost all contributions in this Bulletin have demonstrated, the international regime of rights has so far being singularly unsuccessful. The reasons may lie in the process by which the regime has developed. Rights are most effective when they are the weapons of an emerging group within whose grasp lies access to power. The rise to power of the bourgeoisie gave us civil and political rights, and the rise to power of marxists gave us social and economic rights. The international regime did start with the rights supportive of the powerful (and which have been privileged by globalisation, property in particular). However, it was overtaken by claims and pressures from below, of, or on behalf of, the powerless. These groups do not have the clout to translate the rights, which was the response of the international community to these pressures, into reality. Power still resides with those whose interests would be be put in jeopardy by the revolutionary implications of the UDHR, not least in the redistribution of resources and entitlements to ensure everyone their social and economic rights. As yet, in the international regime of rights, (in Upendra Baxis felicitous expression), what you see is not what you get.

Yash Ghai
Sir Y K Pao Professor of Public Law, University of Hong Kong

(1998/9) 12 INTERIGHTS Bulletin

National Cases Citing the Universal Declaration of Human Rights

1

Hurst Hannum

Antigua
Attorney-General v Antigua Times Ltd, Judgment of May 19, 1975, JCPC, reprinted in 60 ILR 135

Botswana
Attorney-General v Unity Dow, Ct App No 4/91, slip op (1991) State v Petrus, [1985] LRC (Const) 699 (1983), (Aguda, JA, separate opinion)

Judgment of Oct, 10, 1990 (Garde des Sceaux v Hyver), Conseil dEtat Judgment of Apr 30, 1990 (Benlenguer), Conseil dEtat Judgment of Nov 6, 1987 (Casanovas), Conseil dEtat Judgment of Mar 28, 1985 Cass soc Judgment of Mar 11, 1985 (Retailleau), Conseil dEtat Judgment of Dec 6, 1984 (Bellion), Cass soc Judgment of Nov 23, 1984 (Roujansky), Conseil dEtat Judgment of Dec 7, 1983 (Luneau), Conseil dEtat Judgment of June 3, 1981 (Kerrou), Conseil dEtat Judgment of Mar 19, 1975 (Paisnel), Conseil dEtat Judgment of July 18, 1973 (Monus), Conseil dEtat Judgment of May 11, 1960 (Car), Conseil dEtat Judgment of Apr 18, 1951 (Elections de Nolay), Conseil dEtat Judgment of June 3, 1950, (In re Hauck), Cass Crim, excerpted in 22 ILR 388 Judgments of 22 Apr, 4 Feb and 30 Jan 1992, 15 Oct and 25 Sept 1991, 15 Nov, 29 May, 29 Mar and 20 Feb 1989, 18 Aug and 22 Mar 1988, 22 Oct, 7 May, 28 Apr and 13 Jan 1987, 27 Nov, 18 Feb and 23 Jan 1985, 3 May 1984, Cass crim

Argentina
Arena v Autoridades administrativas del Servicio Penitenciario Federal, CFed [Fed Ct App], SCA 531, LXX11 (1989) Claramonte v Mayo, SCC 759, LXXII (1989) Juarez v Ministerio de Trabajo, CSJN [Sup Ct], SCJ 63, L XXII (1989) Molteni v Estado Nacional, M282XXII (1989) Fernandez v Sanatoria Gmes SA, F249 XXI (1988)

Brazil
No 87565, Fed Sup Ct, published April 8, 1980 No22722, Fed Ct App, published June 18, 1963

Canada
B(R) v Childrens Aid Society of Metropolitan Toronto, [1995] 1 S.C.R 315 Kindler v. Canada (Minister of Justice), [1993] 4 LRC 85 (1992) 6 CRR (20) 193 (SC) Edmonton Journal v Alberta (A-G), [1989] 2 S.C.R 1326

Australia
Kartinyeri v The Commonwealth, (1998) 72 ALJR 722 Newcrest Mining v The Commonwealth, (1997) 71 ALJR 1346 Mabo v. Queensland (no.1), (1988) 166 CLR 186 (HC) J v Lieschke, 162 CLR 447 (Austl 1987) Koowarta v Bjelke-Petersen, 153 CLR 168 (Austl 19831984) Austl v Tasmanian (the Tasmanian Dam Case), 158 CLR 1 (Austl 1983) Dugan v Mirror Newspapers Ltd, 22 ALR 439 (Austl 1979) Dowal v Murray, 143 CLR 410 (Austl 1978)

Chile
Skrabs v Kriegler, Judgment of July 21, 1988, Sup Ct (unpublished) reprinted in 89 ILR 59 Szurgelies and Szurgelies v Spohn, Judgment of July 19, 1988, Sup Ct, 256 Fallos del Mes 390, reprinted in 89 ILR 44

Germany, Federal Republic

Judgment of Sept 27, 1988, BVerwG, BVerwGE 1 C 2088, reprinted in 3 Informations-Brief Fur Auslanderrech 91 (1989) 52 BVerwGE 313 (1977) Judgment of May 4, 1971, BVerfG (Fed Const Ct), 31 BVerfGE 58, reprinted in 72 ILR 295 (Basic Right to Marry Case) Judgment of Apr 22, 1968, (Admin, Ct, Frankfurt), 1968 DVB1 472, reprinted in 60 ILR 207 (Iranian Naturalization Case) Judgment of June, 29, 1957, BVerwG, 5 BVerwGE, 1533 BVerwGE 171 (1956) Judgment of July 12, 1955, BGH (Fed Sup Ct), 8 NJW 1365, reprinted in 22 ILR 524 (Extradition of Greek National case)

Finland
Pts case, Ct App of Vaasa, No R 92/1295, May 26, 1993

Austria
VfGH, 1950 VfSlg 2030, reprinted in 1950 YBHR 28

France
Judgment of May 17, 1993 (Batouche), Conseil dEtat Judgment of May 5, 1993 (Association scouts de France), Cass civ 2e Judgment of Jan 29, 1993 (Association pour lobjection de conscience toute participation lavortement), Conseil dEtat Judgment of Dec 17, 1992 (Herrou), Cass soc Judgment of Oct 16, 1992 (Battesti), Conseil dEtat Judgment of Jan 10, 1992 (Union syndicale des professions de sant respectant la vie humaine), Conseil dEtat Judgment of May 28, 1991 (Huston), Cass Civ le Judgment of Dec 21, 1990 (Confdration nationale des associations familiales catholiques), Conseil dEtat

Belgium
M v United Nations and Belgium, Ct App of Brussels, Pasicrisie belge, 1972, I, 971 reprinted in 69 ILR 139 De Meyer v Etat Belge, Ministre de la Famille, Council of State, Pascrisie belge, 1966, IV, 97, reprinted in 47 ILR 196 Auditeur Militaire v Krumkamp Mil Ct of Brahant, Pasicrisie belge, 1950, III, reprinted in 17 ILR 388

Hong Kong
In re Wong and Ng, Dec 16, 1983, and Jan 13, 1984, [1984] HKLR 71 (High Ct 1983-1984)

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47

India
Gaurav v Union of India, (1997) 8 SCC 114 Peoples Union for Civil Liberties v. Union of India, (1997) 1 SCC 439 Chamenli Singh v. State of U.P., (1996) 2 SCC 549 Kirloskar Brothers Ltd v. Employees State Insurance Corpn., (1996) 2 SCC 682 Kartar Singh v. State of Punjab, (1994) 3 SCC 569 Regional Director, ESI Corpn. v. Francis De Costa, 1993 Supp.(4) SCC 100 CESC Ltd v. Subhash Chadra Bose, (1992) 1 SCC 441 Kishore Chand v State of Himachal Pradesh, [1991] 1 SCC 286 Indian Express Newspapers v. Union of India, (1985) 2 SCR 287; AIR 515 SC 1986 Mullin v Administrator, Union Territory of Delhi and Others, (Sup Ct), [1981] 1 SCC 608 Jolly George Vargheese v Bank of Cochin, 1980 AIR (SC) 470 Maneka Gandhi v Union of India, 1978 AIR (SC) 597 Kesavananda Bharati v State of Kerala, 1973 AIR (SC) 1461 Biswambhar Singh v State of Orissa, 1957 AIR (Orissa) 247, reprinted in 24 ILR 425 Bombay Educ Socy v State of Bombay, 1954 Bom 1333

Police v Labat, [1970] The Mauritius Reports 214 (Sup Ct), reprinted in 70 ILR 191 Roussety v Attorney General, [1967] The Mauritius Reports 45 (High Ct), reprinted in 44 ILR 108 Director of Pub Prosecutions v Labavarde, [1965] The Mauritius Reports 72 (High Ct), reprinted in 44 ILR 104, 106

Pakistan
Wajid Shams-ul-Hassan v Federation of Pakistan, PLD 1997 Lahore 617 (Lahore HC)

South Africa
State v. Williams and Others, [1995] 2 LRC 103 (SA SC) Ex parte Attorney General in re Corporal Punishment by Organs of the State, 1991 (3) SA 76, (Sup Ct 1991)

Namibia
Ex parte Attorney General In re Corporal Punishment by Organs of the State, 1991 (3) SA 76 (Sup Ct 1991) Minister of Defence v Mwandinghi 1992 (2) SA 355 (Sup Ct 1991), reprinted in 91 ILR 341

Spain
STS (Sentencia del Tribunal Supremo) of July 3, 1979 in Aranzadi 3182

Netherlands
Judgment of Feb, 13, 1991, Rb (Amsterdam) [Dist Ct], [1991] NJ 488 Judgment of Nov 7, 1984 (X v Inspector of Direct Taxes), HR (High Ct), [1985] NJ No 247, [1985] BNB No 43 Judgment of Aug 16, 1984, Rb (Amsterdam) [Dist Ct][1985] NJCM Bull 648 Judgment of Mar 16, 1978 (A Koning v State Secretary of Transp and Water Management, Afd Rechtspr, [1979] AB No198 Judgment of Nov 23, 1977, HMG [Mil Ct App], [1978] NYIL 315 Judgment of Dec 271967 (Stichjting Communicatie Belangen Nederland v State-Secretary for Transp and Water Management), Royal Decree, No 18 In re Beck [1949] NJ No 437 (Spec Ct Cass), reprinted in 16 ILR 279 In re Flesche, [1949] NJ No 548 (Spec Ct Cass), reprinted in 16 ILR 266 In re Rauter, [1949] NJ No 87 (Spec Ct Cass), reprinted in 16 ILR 526

Sri Lanka
WMK Silva v Piyasena Senaratne, SC App No 7 of 1988 Perera v Attorney-General, SC Nos 107-109/86, slip op (1986) (unreported) Chelliah v Paranage, 2 Sri Lanka Law Reports 132 (1982) Thadchanamoorthi v Attorney-General, FRD (1) 129 Visvalingan v Liyange, (1982) FRD (2) 529 Velmurugu v Attorney-General, 1 Sri Lanka Law Reports 406 (1981) Mahenthiran v Attorney-General, Supreme Court, [1980] Sri Lanka Law Reports (1980)

Ireland
Eastern Health Bd and TM and AM v An Bord Uchtala, 1992 No 101 (Ir SC Mar 8, 1993) (OFlaherty J, conc) In re R Ltd, [1989] ILRM 757 (Ir SC) In re R Ltd, [1989] IR 126 (Ir SC) (Walsh J, conc, joined by Griffin and Hederman, JJ) State v Cooney [1982] IR 337 (Ir H Ct, Feb 16, 1982) In re Woods, [1970] IR 154 (Ir SC, Dec 19, 1967), excerpted in 53 ILR 552 In re 0 Laighlis, [1960] IR 93 (Ir SC) State v Tapley, [1952] IR 62 (Ir SC 1950)

Switzerland
Admin Trib, Argovie, [1983] AGVE, No 13, at 321 Federal Tribunal, ATF 104 Ia 92 Federal Tribunal, ATF 108 Ia 277

Tanzania
Ephrahim v Pastory & Kaizilege, reprinted in 87 ILR 106 (High Ct 1990) DPP v Haji Ahmed, Crim APP Nos 44 and 45 of 1985 (Ct App)

New Zealand
Wellington District Legal Services Committee v Tangiora, [1998] 1 NZLR 129 (NZ CA) Northern Regional Health Authority v Human Rights Commission, [1998] 2 NZLR 218 (NZ HC) Quilter v Attorney-General, [1998] 1 NZLR 523 (NZ HC) R v Gardiner, (1997) 4 HRNZ 7 (NZ CA) Lawson v Housing New Zealand, [1997] 2 NZLR 474 (NZ HC), (1996) 2 CHRLD Coburn v Human Rights Commission, [1994] 3 NZLR 323 (NZ HC) Ministry of Transp v Noort Police v Curran, [1992] 3 NZLR 260 (April 30, 1992) (Ct App, Wellington) Noort v Ministry of Transp, [1992] 1 NZLR 743 (Sept 3, 1991) (High Ct) Huakina Dev Trust v Waikato Valley Auth, [1988] 2 NZLR 188 (June 2, 1987) (High Ct, Admin Div) Department of Labour v Latailakepa, [1982] 1 NZLR 632 (NZ CA) Van Gorkom v Attorney-General [1977] 1 NZLR 535 (Feb 10 1977) (Sup Ct)

Israel
Military Prosecutor v Halil Muhamed Mahmoud Halil Bakhis, June 10, 1968, 1 Selected Judgements of the Mil Cts in the Administered Territories 371 (Mil Ct 1971), reprinted in 47 ILR 484 American European Beth-El Mission v Minister of Social Welfare, 21 (2) Piskei-Din 325 (Sup Ct 1967) (Cohn, L, separate opinion), reprinted in 47 ILR 205 Kurtz and Latushinsky v Kirschen, 21 (2) Piskei-Din 20 (Sup Ct 1967) (Cohn, J, separate opinion), reprinted in 47 ILR 212

Trinidad & Tobago

Island-Wide Cane Farmers Association and AttorneyGeneral v Prokash Seceeram, (1975) 27 WIR 329 (CA)

United Kingdom
R. v. Secretary of State for the Home Affairs, ex parte McQuillan, [1995] 4 All ER 400 (HL) Alexander v Wallington Gen Commrs, 1993 STC 588 (CA 1993) Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA, [1992] 3 WLR 7844 (QB 1992) R v Immigration Appeal Tribunal ex parte Minta, 1990 QB 1248 (1991) R v London Borough of Barnet ex parte Islam and Quraishi, 1989 QB 2181 (1991) R v Secretary of State for the Home Dept ex parte Yassine, [1990] Imm AR 354 (QB 1990) Rv Secretary of State for the Home Dept ex parte Ruddock, [1987] All ER 518 (QB 1986) Wheeler v Leicester City Council, [1985] 1 App Cas 1054 (CA 1985) Minister of Home Affairs v Fisher, [1980] App Cas 319 (PC 1979)

Italy
Judgment of Feb 1,1962 (Ministry of Home Affairs v Kemali), Cass, Foro It LXXXVII (1962), Part I, at 190, reprinted in 40 ILR 191 Judgment of July 27, 1959 (Fallimento Ditta Maggi v Ministry of Fin), Foro It LXXXV (1960), 1, col 505, reprinted in 28 ILR 607

Nigeria Mauritius
Union of Campment Sites Owners and Lessees v Govt of Mauritius, [1984] The Mauritius Reports 100 (Ct of Civ App), reprinted in 91 ILR 317 Nolokowu v Commr of Police, [High Court], reported in Law of Habeas Corpus 96 (Chief Gani Fawehinmhi ed, 1986)

48

(1998/9) 12 INTERIGHTS Bulletin

Secretary of State for the Home Dept v Two Citizens of Chile, [1977] Imm AR 36 (1975) Waddington v Miah alias Ullah, Court of Appeal, [1974] 1 WLR 683 (HL) (CA 1974) R v Miah, [1974] 1 All ER 1110 (CA 1973)

Jean v Nelson, 727 F2d 957 (11 th Cir 1984), affd, 472 US 846 (1985) Siderman de Blake v Republic of Arg, No CV 82-1772RMT(MCx), slip op (CD Cal 1985) Tel-Oren v Libyan Arab Republic, 5 17 F Supp 542 (DDC 1981), affd per curiam, 726 F2d 774 (DC Cir 1984), cert denied, 470 US 1003 (1985) Von Dardel v USSR, 623 F Supp 246 (DDC 1985) Wong v Tenneco Inc, 702 P2d 570 (Cal 1985) Dickens v Lewis, 750 F2d 1251 (5th Cir 1984) Laker Airways Ltd v Pan American World Airways Inc, 604 F Supp 280 (DDC 1984) Tel-Oren v Libyan Arab Republic, 726 F2d 774 (DC Cir 1984) Crow v Gullet, 706 F2d 856 (8th Cir 1983) Fernandez-Roque v Smith, 567 F Supp 1115 (ND Ga 1983) Hinkie v United States, 715 F2d 96 (3d Cir 1983) Ishtyaq v Nelson, 627 F Supp 13 (EDNY 1983) Sanchez-Espinoza v Reagan, 568 F Supp 596 (DDC 1983) American Natl Ins Co v Fair Employment & W Housing Commn, 651 P2d 1151 (Cal 1982) Centre for the Independence of Judges and Lawyers of the United States, Inc v Mabey, 19 Bankr 635 (D Utah 1982) Crow v Gullet, 541 F Supp 785 (DSD 1982) In re Alien Children Educ Litig, 501 F Supp 544 (SD Tex 1980), affd 5th Cir 1981 (unreported mem), affd on other grounds sub nom Plyer v Doe, 457 US 202 (1982) Fernandez v Wilkinson, 505 FSupp 787 (D Kan 1980), affd on other grounds sub nom Rodriguez-Fernandez v Wilkinson, 654 F2d 1382 (10th Cir 1981) Founding Church of Scientology v Regan, 670 F2d 1158 (DC Cir 1981) Jaffee v United States, 663 F2d 1226 (3d Cir 1981) Soroa-Gonzales v Civiletti, 515 F Supp 1049 (ND Ga 1981) Sterling v Cupp, 625 P2d 123 (Or 1981) City of Santa Barbara v Adamson, 610 P2d 436 (Cal 1980) Filartiga v Pea-Irala, 630 F 2d 876 (2d Cir 1980) Lareau v Manson, 507 F Supp 1177 (D Conn 1980) Tayyari v New Mexico State Univ, 495 F Supp 1365 (DNM 1980) Commonwealth v Sadler, 3 Phila 316, 1979 Phila Cty Rptr LEXIS 92 (Common Pleas Ct 1979) Cramer v Tyars, 588 P2d 793 (Cal 1979) Davis v Dist Director, 481 F Supp 1178 (DDC 1979) In re Alien Children Educ Litig, 482 F Supp 326 (Jud Panel on Multidist Litig 1979) In re Vilenskys Estate, 424 NYS2d 821 (Sur Ct 1979) In re White, 158 Cal Rptr 562 (Cal Ct App 1979) Pauley v Kelly, 255 SE2d 859 (W Va 1979) Sami v United States, 617 F2d 755 (DC Cir 1979) Bhargava v Commissioner, 37 TCM 848 (1978), affd 603 F2d 211 (2d Cir 1979) (affirming without opinion) People v Levins, 586 P2d 939 (Cal 1978) Huynh Thi Anh v Levi, 427 F Supp 1281 (ED Mich 1977) Nguyen Da Yen v Kissinger, 528 F 2d 1194 (9th Cir 1975) United States v Vargas, 370 F Supp 908 (DPR 1974) Eggert v City of Seattle, 505 P2d 801 (Wash 1973) Bixby v Pierno, 481 P2d 242 (Cal 1971)

Dandridge v Williams, 397 US 471 (1970) In re Weitzman, 426 F2d 439 (8th Cir 1970) Beck v Manufacturers Hanover Trust Co, 481 NYS2d 211 (NY Sup Ct 1966) Jamur Prods Corp v Quill, 273 NYS2d 349 (NY Sup CL 1966) Zemel v Rusk, 381 US 1 (1965) Copeland v Secretary of State, 226 F Supp 20 (SDNY 1964) Kennedy v Mendoza-Martinez, 372 US 144 (1963) Schneider v Rusk, 218 F Supp 302 (DDC 1963) Intl Assn of Machinists v Street, 367 US 740 (1961) Wilson v Hacker, 101 NYS2d 461 (NY Sup Ct 1950) AFL v American Sash & Door Co, 335 US 538 (1949)

United States
Aguinda v Texaco, 93 Civ 7527 (VLB), 1994 US Dist LEXIS 18364 (SDNY 1994) Heldman v Sobol, 846 F Supp 285 (SDNY 1994) Clever v Cherry Hill Bd of Educ, 838 F Supp 929 (DNJ 1993) Demjanjuk v Petrovsky, 10 F3d 338 (6th Cir 1993) Ortiz-Moreno v INS, 7 F3d 234 (6th Cir 1993) (citation in table format) Phaidin v United States, 28 Cl Ct 231 (1993) Rodgers v Ohio Dept of Rehabilitation and Correction, 632 NE2d 1355 (Ohio Ct App 1993) United States v Copeland, 830 F Supp 216 (SDNY 1993) United States v Schiffer, 836 F Supp 1164 (ED Pa 1993) Weinstein v Lasover, No 93-1552, 1993 US Dist LEXIS 16417 (ED Pa 1993) Wong v Ilchert, 998 F2d 661 (9th Cir 1993) Denegri v Chile, 1992 US Dist LEXIS 4233 (DDC 1992) Levy v Weksel, 143 FRD 54 (SDNY 1992) In re Estate of Marcos Human Rights Litig, 978 F2d 493 (9th Cir 1992) Siderman de Blake v Republic of Arg, 965 F2d 699 (9th Cir 1992) Singh v Ilchert, 801 F Supp 313 (ND Cal 1992) Fulop Family v United States, 919 F2d 738 (6th Cir 1990) (unpublished) Simanonok v Simanonok, 918 F2d 947 (Fed Cir 1990) DKT Memorial Fund v Agency for Intl Dev, 887 F2d 275 (DC Cir 1989) Lipscomb v Simmons, 884 F2d 1242 (9th Cir 1989) United States v Clotida, 892 F2d 1098 (Ist Cir 1989) West v Bowen, 879 F2d 1122 (3d Cir 1989) Carmichael v United Technologies Corp, 835 F2d 109 (5th Cir 1988) MA A26851062 v INS, 858 F2d 210 (4th Cir 1988) Mugmuk v Beyer, 1988 US Dist LEXIS 7992 (DNJ 1988) United States v Terrazas-Carrasco, 861 F2d 93 (5th Cir 1988) Cerrillo-Perez v INS, 809 F2d 1419 (9th Cir 1987) Forti v Suarez-Mason, 672 F Supp 1531 (ND Cal 1987) Haitian Refugee Cent v Gracey, 809 F2d 794 (DC Cir 1987) People v Ghent, 739 P2d 1250 (Cal 1987) Boehm v Superior Court, 223 Cal Rptr 716 (Cal Ct App 1986) Sheridan Rd Baptist Church v Michigan Dept of Educ, 396 NW2d 373 (Mich 1986) Lopez-Pacheco v United States, 627 F Supp 1224 (DPR 1986) United States v Ringrose, 788 F2d 638 (9th Cir 1986) Fernandez-Roque v Smith, 622 F Supp 887 (ND Ga 1985) Haitian Refugee Cent v Gracey, 600 F Supp 1396 (DDC 1985) Humphers v First Interstate Bank, 696 P2d 527 (Or 1985)

1 This list was originally prepared by Hurst Hannum as an appendix to his article The Status of the Universal Declaration of Human Rights in National and International Law first published in the Georgia Journal of International and Comparative Law, Vol 25 Nos 1 & 2, 287-397, an edited version of which appears in pp 3-8 of the Bulletin. It has been supplemented with recent cases by INTERIGHTS. The list is a selection of cases (including separate and dissenting opinions) which specifically refer to the Universal Declaration of Human Rights. Of course, mere reference to the Declaration does not necessarily imply that a court found its provisions persuasive or even relevant to the issue at hand.

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Recent Publications
Publications on The Universal Declaration of Human Rights

ment] regarded it as a means of securing progress in the raising of standards of human rights, and in the second place it was a weapon of political warfare. Samnoy relates how external pressures increased as negotiations continued, but how rejection of the most controversial issues (eg. abortion and the rights of minorities), and deliberately vague formulations of others facilitated a speedy end to the drafting process. The Declaration was finally adopted on 10 Dec 1948 with eight states abstaining. In her short treatise Samnoy also gives the background to the discussions on whether or not the Declaration should be legally binding. While some nations, notably Chile, France and Lebanon favoured a binding document, the Great Powers, led by the US, continually pressed for a nonbinding Declaration. Some states presciently feared that, whatever was said at the time, the Declaration might subsequently be interpreted to have some legal force. It seems clear that at the time of adoption the Declaration was not intended to have legal effect. Its contemporary legal status, however, is open to debate. Is it customary international law (or general international law) in whole or in part? If the latter, which articles qualify? Or is it merely evidence of custom? Hurst Hannums thoroughly researched article, The Status of the Universal Declaration of Human Rights in National and International Law,2 concludes that while it cannot authoritatively be said that the Declaration in its entirety has achieved the status of custom, undoubtedly some provisions have. Hannum volunteers his opinions on which these are. Interestingly, he notes that some of the economic, social and cultural rights - he highlights the right to free choice of employment, to form and join trade unions and to free primary education subject to a states available resources - may enjoy wider international support than civil and political ones. Aside from its influence at the international level, the Declaration has had a significant impact at the national level. This can be measured in part by the extent to which it has influenced the drafting of constitutions and national legislation, and national judicial opinions. The numbers are impressive. Hannum tells us that at least 90 national constitutions either quote from, or are directly inspired by, the Universal Declaration. The appendices include many of these as well as citations to the over 200 national cases which refer to the Declaration. Hannum also shows the variety of ways in (1998/9) 12 INTERIGHTS Bulletin

HUMAN RIGHTS AS INTERNATIONAL CONSENSUS

Ashild Samnoy
Chrr. Michelsen Institute, 1993, 164pp, 11.00

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: 50 YEARS AND BEYOND

Y Danieli, E Stamatopoulou and C Dias (Eds)
Baywood Publishing Company Inc, 1998, 480 pp, $46.00

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A Commentary

A Eide, G Alfredsson, G Melander, L A Rehof and A Rosas (Eds)
Scandinavian University Press, 1992, 474 pp, $28.00

HUMAN RIGHTS IN PERSPECTIVE: A Global Assessment

A Eide and B Hagtvet (Eds)
Blackwell Publishers, 1992, 55

The Status of the Universal Declaration of Human Rights in National and International Law
Hurst Hannum
in 25 Georgia Journal of International and Comparative Law 287 (1995)

re our human rights better protected today than fifty years ago when the Universal Declaration of Human Rights was adopted by the United Nations General Assembly? On the one hand the Declaration has had a profound normative and practical effect on national, regional and international human rights protection. Indeed, the principles enshrined in [the UDHR have become] the yardstick by which we measure human progress.1 At the same time, as the recent genocide in Rwanda, the war in the former Yugoslavia, and the current crises in Algeria and Colombia show, human rights are all too often honored in the breach rather than the observance.
The Universal Declaration was a product of the extraordinary circumstances and pressures of the time. Ashild Samnoys fascinating historico-political account of the drafting process, Human Rights As International Consensus, shows how the atrocities of Nazism and the wasteland of Europe in the aftermath of World War II caused a rare sense of urgency among nations. The world wanted this Declaration, and even States fearful of the possible consequences (such as loss of sovereignty and interference in internal affairs) could not afford to be seen to block its progress. Intriguing glimpses of Great Power politics are also on display here. For example, perhaps inevitably, motives were not always pristine: In the first place [the British govern50

which national law has used the Declaration, although here the results seem rather modest. Whether or not the Declaration is as universal as its name asserts has been a major subject for debate in recent years. The 1993 Vienna Declaration and Programme of Action merely papered over the differences between states on this point. In a symposium of experts convened by the Norwegian Nobel Institute in June 1988 to mark the 40th anniversary of the Declaration, this was one of the key topics. In light of the end of the Cold War, the contributions of the experts were updated before being published in 1992. The resulting book, Human Rights in Perspective: A Global Assessment, remains of interest today to anyone wanting to probe into the issues of universality, socio-political and economic impediments to the realization of human rights. A section reviewing international efforts to protect human rights, though by now out-dated, contains thoughtful essays by well-known experts. What are the rights contained in the Declaration - and how have they been interpreted subsequently? Asbjorn Eides Commentary on the articles of the Declaration is an excellent starting-point for lawyers, scholars and activists seeking to discover the origins of each right (much interesting material is drawn from the travaux preparatoires), and the way in which subsequent regional and or international bodies have interpreted them. Of particular interest are the essays, all by Nordic human rights scholars and activists, discussing infrequently litigated articles, including those on duties and on economic, social and cultural rights. But what has been done to give teeth to

the principles of the Declaration? For an up to date, comprehensive, and frank assessment of international efforts to prevent, halt and remedy human rights abuses, the reader should turn to a first-rate forthcoming collection of essays by scholars and practitioners in the field entitled: The UDHR: 50 years and Beyond. An honest verdict is offered by Mary Robinson, UN High Commissioner for Human Rights: Many billions of dollars have been spent and much rhetoric expended for disturbingly little result. This massive failure of implementation shames us all.3 An emphasis on the victim is the books leitmotif - and it is a breath of fresh air, grounding the thoughtful and detailed accounts of the different international mechanisms in reality. Buttressed by occasional short essays authored by victims of human rights abuses, the seven substantive sections include a review of the UN human rights system from the victims perspective (treaty bodies, thematic and country mechanisms, UN specialized agencies, UN field operations and the International Criminal Court, a survey of the protection mechanisms for particularly disadvantaged groups (including women, children, indigenous people, refugees and internally displaced persons, the homeless, mentally ill and elderly), and a review of the different regional mechanisms. Additional innovative sections cover the need to create a culture of human rights, the trauma of human rights violations which reviews the role of the health profession (including mental health) in human rights and the importance of mainstreaming human rights. This last section contains two of the most challenging chapters in the book. The first, a powerful essay by Lawrence Barsh, shows

an increasing awareness of how non-state actors such as the World Bank and the International Monetary Fund, and multinational corporations, are implicated in human rights violations. Admonishing us that states are no longer the sole, or even central players, Barsh challenges human rights activists to consider how to make corporations directly responsible for respecting the principles contained in the Declaration. The second is a well-argued and provocative chapter on the role of the Security Council in human rights protection, in which Andrew Clapham argues that human rights concepts should not be seen as being in conflict with peace negotiations, but as a sine qua non. It is not peace or human rights. It is peace with human rights. This theme is also implicit in Ian Martins clear and thoughtful analysis of UN Human Rights Field Operations, such as those in El Salvador, Haiti, Guatemala, Cambodia, Rwanda, Burundi and the former Yugoslavia. Misgivings about these operations are legitimate - the cost is significant, economic, social and cultural rights are virtually ignored, and there is a danger of over-emphasising monitoring, as pointed out in Jamal Benomars essay on technical cooperation. But Martins essay gives the reader cause for hope. These operations are one of the most exciting innovations of human rights protection of the 1990s. Being on the ground they can learn what is really needed and adapt accordingly. From this book the reader can grasp an underlying theme - that many of the paradigms for human rights work are in urgent need of reassessment and revision. The human rights movement has failed to respond adequately to the changes of the

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Recent Publications, cont.

1990s, in particular the end of the Cold War and the increase in countries in transition to democracy but lacking the rule of law and a rights culture. New ideas and new approaches are needed. In this context it is encouraging to see the emphasis on the importance of creating a human rights culture. Nadine Gordimer eloquently highlights the issue in one of four introductory essays authored by former Nobel Laureates. She describes how, in apartheid South Africa, the pervasive refutation of rights required rebellion and a refusal to accept unjust laws. Now the challenge is to create a society in which injustices are dealt with by the rule of law rather than the rule of the street. (A subsequent essay in a section entitled The Culture of Rights reviews the rather unsuccessful efforts of the UN in providing technical co-operation and assistance on human rights matters to governments. It leaves the reader in some despair.) Equally welcome is the importance attached to providing redress for victims - at least three chapters discuss this at length, and examine developing norms, in particular the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, and the so-called Van Boven Principles (Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law). One surprising omission, particularly in light of the emphasis on the victim and in building a rights culture, is any discussion on the role - past and future - of NGOs. An attempt at a comprehensive assessment of the effect of the Declaration cannot ignore the immense influence and potential of these players. NGOs are critical to efforts to create a culture of rights. They are also essential to the functioning of virtually all the mechanisms described in the book, and they have been at the forefront of UN standard-setting; the UN Convention Against Torture, and the Convention on the Rights of the Child are two outstanding examples. However, a future edition of this book could easily remedy this gap. Overall, this volume is remarkable for its breadth and depth, its sincere attempt to take a practical, peopleoriented approach, and for the frankness of its appraisals. It should be valuable to a wide audience Ultimately, the effect of the Declaration must be judged by the extent to which human rights violations are prevented, stopped, and remedied. But all efforts to achieve this depend on one thing - people must know that they have rights to assert. Creating this culture of rights is probably the hardest task of all. It is a job for governments. But it is also a job for people - for teachers, for doctors, for lawyers, for philosophers, for anthropologists, and so on. And it is the

Universal Declaration of Human Rights which is the pillar on which to build. It is, already, the standard to which all people refer. That is no small legacy. That may be the reason why, in the words of Vaclav Havel, to put it simply, the life of all those who scorn human rights is much more difficult with the Declaration in place, than it was before.4

Candy Whittome
Adjunct Lecturer in International Human Rights Law at the University of Virginia

Kofi Annan, in a Foreword to The Universal Declaration of Human Rights: 50 Years and Beyond, reviewed here. A much shortened version of this article will be found in this issue of the Bulletin. Mary Robinson, Epilogue, UDHR: 50 Years and Beyond, 426. Vaclav Havel, Voices, in UDHR: 50 Years and Beyond, 332.

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INTERIGHTS is an international human rights law centre. Based in London, the organisation focuses on the protection of human rights through legal remedies. Our activities include: providing legal assistance in selected cases before tribunals such as the UN Human Rights Committee, the African Commission on Human and Peoples Rights, the European Commission and Court of Human Rights and the InterAmerican Commission on Human Rights; filing amicus curiae briefs in cases raising important issues concerning the interpretation of fundamental rights before national and international courts; advising on legal matters and remedies under international human rights law; assisting lawyers and human rights organisations in litigation before international, regional and national human rights tribunals; providing practical assistance to local civil liberties organisations and lawyers on international and comparative human rights law relevant to cases in their national courts and tribunals; and providing information on recent developments of human rights law through INTERIGHTS Bulletin, the Commonwealth Human Rights Law Digest and other publications. INTERIGHTS is non-partisan and apolitical. It is a UK registered charity and holds Consultative Status with the United Nations Economic and Social Council, with the Council of Europe and with the African Commission for Human and Peoples Rights. A non profit-making organisation, INTERIGHTS is a company limited by guarantee and its main sources of funding are grants from foundations and donations.