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The New Law Journal/2012 Volume 162/Issue 7500, February/Articles/Human rights: The right reflection? 162 NLJ 209

New Law Journal 162 NLJ 209 10 February 2012

Human rights: The right reflection?

Legal Update Specialist Professor Susan Nash Dean, City Law School. E-mail: susan.nash.1@city.ac.uk Reed Elsevier (UK) Ltd 2012 Susan Nash considers the latest human rights developments ******

In Brief
Giszczak v Poland: a written decision to grant a prisoner compassionate leave to attend the funeral of his daughter was served four days after her funeral. VC v Slovakia: consent for sterilisation obtained too soon after delivery of baby.

Gbel v Germany: rights of purchaser were not breached by the restitution of property to heir of owner forced to sell under the Nazi regime. Othman (Abu Qatada) v the United Kingdom: deportation would result in a flagrant denial of justice.

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Lyubenova v Bulgaria: authorities failed in their obligation to protect the family life of a separated mother and her son. ****** In Giszczak v Poland (App No 40195/08) the applicant was a prisoner who complained that the authorities' refusal to allow him to visit his critically ill daughter was a breach of Art 8 (right to family life). The ground for the refusal related to the gravity of the applicant's offence and his rude behaviour. He also complained there had been a further violation of Art 8 on account of the authorities' failure to reply adequately, and in good time, to his request to attend his daughter's funeral. He did not go to his daughter's funeral because he believed that he would have to wear prison clothes with shackles on his hands and legs, and under uniformed police escort. The government submitted that he had been given permission to attend the funeral handcuffed to an officer but would have been allowed to wear normal clothes. Finding for the applicant, the European Court of Human Rights (ECtHR) considered that the reasons given for not allowing the visit to hospital had not been convincing as the authorities' concerns could have been addressed by organising a prison escort. The refusal had not been "necessary in a democratic society" as it had not corresponded to a pressing social need and had not been proportionate to the legitimate aim of protecting public safety and preventing disorder or crime. Furthermore, the written decision to grant compassionate leave to attend the funeral had been served on him four days after the funeral had taken place. The failure to inform the applicant in time, and in a clear and unequivocal manner about the conditions of his compassionate leave, had resulted in him refusing to go to the funeral because he was concerned it would cause disruption.

Forced sterilisation
In VC v Slovakia (App No 18968/07) the ECtHR gave its first judgment in a case of alleged forced sterilisation. Relying inter alia on Arts 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), the applicant complained that she had been sterilised without her full and informed consent. Further, the authorities' investigation into her complaint had not been thorough, fair, or effective. She alleged that her ethnic origin played a decisive role in the decision to sterilise and should be seen in the context of the widespread practice of sterilising Roma women. The hospital management stated that the applicant's sterilisation after the birth of her second child by caesarian section was carried out on medical grounds and that she had given her authorisation after having being warned by doctors of the risks of a third pregnancy. Finding for the applicant, the ECtHR noted that when she signed the consent form she was not in imminent danger. Nevertheless, she was not allowed time to reflect on its implications, or to discuss it with her husband. Although there was no proof that the medical staff had intended to ill-treat the applicant, they had nevertheless acted with gross disregard to her right to autonomy and choice as a patient. The manner in which the applicant's consent had been obtained induced in her fear, anguish and feelings of inferiority. The information available was not sufficient to prove that the doctors had acted in bad faith or that

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their behaviour was racially motivated or, indeed, that her sterilisation was part of a more general organised policy. However, the applicant's medical records recorded her ethnic origin without more information indicating a certain mindset on the part of the medical staff as to the manner in which the health of the applicant, as a Roma, should be managed. Accordingly, Slovakia had failed to fulfil its positive obligation under Art 8 to ensure that particular attention was paid to the reproductive health of the applicant as a Roma. NLJ at 210

Restitution of property purchased during Nazi regime

The applicant in Gbel v Germany (App No 35023/04) had brought shares in an estate which had previously belonged to Jewish owners who were forced to sell it under the Nazi regime. Relying on Art 1 of Protocol No 1, the applicants complained that the 1990 Property Act and its application by the German courts infringed their right to the peaceful enjoyment of their possessions. The applicant complained that following the restitution of the land to the heirs of the original owners, he was entitled to very limited compensation. The ECtHR acknowledged that restitution constituted an interference with the applicant's right to the enjoyment of his possessions. However, the legislation in question contained clear provisions on the conditions for the restitution of land expropriated at the time of the German Democratic Republic. It could also be used by people who had lost property under the Nazi regime. The aim of the German legislature to return the property to the heirs of the original Jewish owners was in the public interest. The applicant knew the property's history and had acquired a share after the entry into force of the Property Act and before the expiry of the time limit for restitution claims. He had, therefore, taken the risk of acquiring property against which a restitution claim could be made. His complaint related not to the restitution, but to the minimal amount of consideration provided for by the Property Act. He still had the possibility of seeking a compensation payment through the courts. In the unique circumstances of reunification, the ECtHR was satisfied that Germany had not overstepped its margin of appreciation and had not failed to strike a fair balance between the applicant's property interests and the general interest of German society. There had been no violation of Art 1 of Protocol No 1.

Deportation would amount to denial of justice

In Othman (Abu Qatada) v the United Kingdom (App No 8139/09), the ECtHR held for the first time that deportation would breach Art 6 (right to a fair trial), which reflects the international consensus that the use of evidence obtained through torture makes a fair trial impossible. The applicant complained that there was a real risk of ill-treatment or a flagrant breach of his right to a fair trial if he was deported to Jordan, where he is wanted on terrorism charges. He had earlier been granted an interim measure under r 39 of the Rules of Court preventing his removal to Jordan pending this decision. In accordance with well-established Convention case-law, the applicant could not be deported to Jordan if there were a real risk that he would be tortured or subjected to inhuman or degrading treatment. As a high profile Islamist, he belonged to a category of prisoners at risk of ill-treatment. The ECtHR, therefore, had to decide whether the diplomatic assurances obtained by the UK government from the Jordanian government were sufficient to protect him. It found that the agreement between the two governments was specific and comprehensive. The assurances were given in good faith by a government whose bilateral relations with the UK had, historically, been strong. They had been approved at the highest levels of the Jordanian

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government, with the express approval and support of the King. In addition, the assurances would be monitored by an independent human rights organisation in Jordan, which would have full access to the applicant in prison. There would, therefore, be no risk of ill-treatment, and no violation of Art 3. However, agreeing with the Court of Appeal that the use of evidence obtained by torture during a criminal trial would amount to a flagrant denial of justice, the ECtHR found that evidence obtained by torture was used by the Jordanian courts. Allowing a criminal court to rely on torture evidence would legitimise the torture of witnesses and suspects pre-trial. Moreover, torture evidence was unreliable. Evidence of the applicant's involvement in terrorism had been obtained by torturing one of his codefendants. Notably, the Jordanian courts had not taken any action in relation to their complaints of torture. There was a high probability, if the applicant was returned to Jordan, that this incriminating evidence would be admitted at any retrial and that it would be of considerable importance. In the absence of any assurance by Jordan that the torture evidence would not be used against the applicant, the ECtHR concluded that his deportation to Jordan to be retried would give rise to a flagrant denial of justice in violation of Art 6.

Obligation to protect family life

In Lyubenova v Bulgaria (App No 13786/04), the applicant temporarily entrusted the care of her 4-year-old son to her husband's parents while she was abroad. When she returned, her in-laws refused to allow her to resume care of the child. She complained that the refusal of the domestic courts to order the return of her son resulted in a breach of Art 8 (right to family life). The ECtHR noted that the applicant's parental rights had not been restricted by a decision of the courts but by the actions of her in-laws. It was for the authorities to take the necessary measures to enable family life to be maintained. Although social services had taken measures to facilitate reconciliation between the parties, their efforts had come to nothing because of the attitude of the child's paternal grandparents. Accordingly, these measures lacked the effectiveness required under Art 8. The ECtHR was also critical of the regional court which tended to protect the rights of the father and failed to take into account the mother's rights and interests. It was noted that the lack of any temporary measure to facilitate contact between the mother and the child had been due to a shortcoming in Bulgarian domestic law. Accordingly, the rights and interests of the applicant had not been sufficiently protected.