ECHR: There is an inherent obligation on a state to use special measures, safeguards to protect children from ill-treatment

The European Court of Human Rights has ruled that Ireland had been negligent in failing to protect Louise O'Keeffe from abuse in school in 1973.

The case was taken to the European Court of Human Rights after the Supreme Court ruled that the State was not liable because the school was run by the Catholic Church.

The Court held, by eleven to six with Judge Peter Charlton fully dissenting, that the structure of primary education in 1970s Ireland failed to protect Ms. O'Keeffe from abuse.

The Court found that there had been a violation of Article 3, prohibiting inhuman and degrading treatment, and Article 13, the right to an effective remedy, of the European Convention on Human Rights.

However, the Court found that there had been no violation of Article 3 in respect of the investigation into the compliments of sexual abuse at the school.

The Court also found that complaints made under Article 8, Article 2 of Protocol No. 1 and Article 14 did not establish any matters separate to the matters already examined.

The Court found that the State had an inherent obligation to use special measures and safeguards to protect children, especially those in primary education, from ill-treatment.

Delegating the obligation to protect children from ill-treatment does not absolute a state from that obligation.

The Court found Ireland failed to meet this obligation:

[...] which had to have been of the sexual abuse of children by adults prior to the 1970s through, among other things, its prosecution of such crimes at a significant rate [...]

Despite this, the State continued to allow the management of primary school education for the majority of children to national schools, without any mechanism of control against the risks of sexual abuse occurring.

The Court also found that Ms. O'Keeffe was entitled to choose from the legal remedies available, rejecting the Supreme Court judgment that Ms. O'Keeffe should fail for not exhausting all available legal remedies in Ireland first.

ECHR: No breach of right to fair trial in granting state officials immunity from civil torture proceedings

The European Court of Human Rights has ruled that four British nationals cannot sue Saudi Arabia through British courts for compensation.

In a majority six to one judgment, the Court held that it is:

[...] satisfied that the grant of immunity to the state officials in the present case reflected generally recognised rules of public international law.  

The Court observed that in granting:

[...] immunity to the state officials in the applicants’ civil cases did not therefore amount to an unjustified restriction on the applicant’s access to a court. There has accordingly been no violation of Article 6 of the convention in this case. However, in light of the developments currently under way in this area of public international law, this is a matter which needs to be kept under review.

The case highlights the distinction between criminal and civil cases of torture. Criminal cases of torture can be heard in the United Kingdom even if the offences have been committed in another country. But civil cases of torture, where the torture was committed abroad, British courts will not consider.

In the only dissenting opinion, Bulgarian Judge, Zdravka Kaladjieva expressed his:

[f]ear that the views expressed by the majority on a question examined by this court for the first time not only extend state immunity to named officials without proper distinction or justification, but give the impression of also being capable of extending impunity for acts of torture globally. 

The Court acknowledged their medical examinations carried out after the men returned to the United Kingdom concluded that the applicant’s injuries were consistent with torture.

ECHR: Whole life tariffs must be subject to periodic reviews

In July, the European Court of Human Rights ruled that a ‘whole life’ sentence, forcing murders to die in prison, is inhuman and degrading after an appeal was brought by Jeremy Bamber, who murdered five members of his family in 1985.

The Strasbourg based Court proposed that those serving life without the possibility of parole should have their cases reviewed after 25 years, after which they could be freed.

The ruling sparked a furious reaction from figures within the government. However, there is no right of appeal against the ruling and the government has six months to act upon the ruling.

Arthur Hutchinson has lodged the first challenge of a ‘life means life’ prison sentence following the European Court of Human Rights ruling.

Mr. Hutchinson is serving a ‘whole life’ sentence for stabbing Basil and Avril Laitner and their son Richard, before raping their 18-year-old daughter Nicola at knifepoint on the night of a family wedding in October 1983.

Durham Crown Court ruled that Mr. Hutchinson should serve 18 years. However, then Home Secretary Leon Brittan later ruled Mr. Hutchinson should serve life.

Mr. Hutchinson has already brought a challenge against the sentence in the courts. Just five years ago the Court of Appeal ruled that there was ‘no reason at all’ to depart from the sentence.

Mr. Justice Tugendhat noted that:

[t]hese were exceptionally serious murders, and it is right that the applicant should remain in prison for the rest of his life by way of punishment.

The government has already been asked to provide an official response to the claim by Arthur Hutchinson. This could lead to a full hearing in 2014. If the Court rules in favour of Mr. Hutchinson, he could win the right to be freed.

ECHR: British Airways' Code Violates Religious Right

A British Airways employee has won a religious discrimination case at the European Court of Human Rights. Nadia Eweida was asked by British Airways to remove a Christian cross from around her neck.

The ruling will mean private companies will have to rethink how their employees and the right of the employees to express their religious beliefs in the workplace.

In 2006 Nadia Eweida was sent home without pay by British Airways for wear a necklace with a small silver cross that British Airways said violated the company dress code. The Court ruled that the request by British Airways “amounted to an interference with her [Nadia Eweida’s] right to manifest her religion.

In July 2012, Prime Minister David Cameron had pledged to introduce legislation allowing individuals to wear religious symbols at work in response to Ms. Eweida’s case.

However, the court dismissed three claims of a similar nature. Shirley Chaplin, Lillian Ladele and Gary McFarlane lost their appeals, arguing that British courts had failed to protect their rights to religious expression. Ms. Chaplin, a nurse, was told by a her employers to remove a crucifix around her next as it could cause injury if a patient pulled  at it.

The Court ruled that the protection of health and safety was “of a greater magnitude that that which applied in respect of Ms. Eweida”.

The Labour Court originally dismissed the case of Ms. Eweida and Ms. Chaplin. The case of Gary McFarlane and Lillian Ladele pit gay rights against the right to religious freedom.

Mr. McFarlane was dismissed from a national counselling service when his employers deemed him unwilling to provide sex advice to homosexual couples. Ms. Ladele refused to officiate at civil partnership for gay couples as part of her duties as a registrar. Both Mr. McFarlane and Ms. Ladele lost.

But the Court, in the case of Ms. Eweida, shared the opinion of the Equality and Human Rights Commission, suggesting that the Courts’ interpretation of the law on the manifestation of religion and religious discrimination was too narrow.

 | EWCA Civ 1025 | EWCA Civ 80 |