By Tobias Thienel

Sorry for the extreme delay: I missed this one, perhaps because of the less than catchy title. It’s the judgment of the English High Court in R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) of 20 May this year. Mind you, as headings go, this one would seem to come in at the lower end of most people’s scale of surprise. The conclusion that there is no human right to smoke would seem patently obvious. But do bear with me; there has been no suggestion in this English case that a right to smoke has ever been laid down in any instrument of English or international law; it hasn’t. That much really is obvious. Instead, the argument proceeds from Article 8 ECHR, the right to respect for a person’s private life (and also their family life, home and correspondence, none of which matters here), which is ‘not susceptible to exhaustive definition’ (Pretty v United Kingdom, para 61). More to the point, the right to respect for one’s private life has been held to protect, inter alia, a person’s physical and moral integrity (see ibid and Bensaid v United Kingdom, paras 46-47). It may not be entirely implausible that to ban smoking is to interfere with a smoker’s physical and psychological integrity, if the ban prevents them from smoking at all. Justification of the interference might be another matter, but Article 8 would have then been engaged, if nothing more. In the case of G itself, the ban on smoking was complete. The claimants were detained mental patients in a secure unit, and were not allowed to go outside to smoke. They were and are still allowed to smoke in one room in their facility, but that permission is to expire on 1 July. From then on, the unit will be entirely smoke-free, and the claimants will be prevented from smoking at all. They will, in other words, be forced to quit. I understand that this can be an unpleasant experience. And still, the High Court (Pill LJ and Silber J) dismissed the claim, holding that Article 8 was not engaged. Continue reading →

By Tobias Thienel

A while back, I had a few comments, many critical, on the judgment of the ECtHR’s Grand Chamber in N v. United Kingdom, the latest case concerning the expulsion of an AIDS patient to a receiving state providing little in the way of health care. In particular, I was less than satisfied with a few things the Court said in its treatment of Article 3 ECHR, clearly the main issue in the case. But there is another aspect to the case that is also far from edifying: after having found that there would be no violation of Article 3 were the applicant in fact expelled to Uganda, the Court very briefly held that the applicant’s additional complaint under Article 8 did not raise any separate issue. It was therefore unnecessary for the Court to examine that complaint (para 53 of N). Continue reading →

By Tobias Thienel

The Grand Chamber of the European Court of Human Rights has today rendered judgment in one of the most – technically and morally – difficult cases to have come before it recently. The case is N v United Kingdom, and concerned the expulsion of someone suffering from AIDS at an advanced stage to Uganda. That person, Ms N, was currently undergoing treatment in the UK, but would not foreseeably receive anything like the same degree of medical assistance in Uganda. It was therefore likely that removal from the UK would expose her to serious pain and discomfort from her disease, and hasten her death. The applicant therefore argued that to remove her to Uganda in those circumstances would be in violation of Article 3 of the Convention. That article, of course, prevents the Contracting States of the ECHR from expelling or extraditing anyone to a situation in the receiving State in which the removed person would face a real risk of ill-treatment contrary to Article 3 standards (that’s torture and inhuman and degrading treatment) (Soering v United Kingdom, paras 85-91). There is also good precedent for the application of that prohibition to the case of an AIDS patient being removed to a poor State where the patient would be without any assistance, and would soon die: that case is D v United Kingdom, and today’s judgment was largely about distinguishing or applying that precedent. The Grand Chamber distinguished D, and found no violation of Article 3 in the present case. I find that difficult to support, and badly argued in the judgment. Continue reading →

By Tobias Thienel

The European Court of Human Rights has yesterday heard argument in the case of Medvedyev and Others v France. The webcast of the hearing, simulcast in English, is here. A press release setting out the basic facts and complaints is here. The case raises a few interesting points. Having watched the webcast, I’m not sure they will all (re-)appear in the eventual judgment, but if they do, it’s going to be a truly fascinating judgment. Put shortly, the case merges the law of the ECHR with the international law of the sea. The facts are these: a freighter sailing under the Cambodian flag on the High Seas of the Atlantic Ocean, the Winner, was suspected of carrying illicit drugs, to be delivered to European coastal states. France therefore made a request to Cambodia for permission to stop and search the vessel. Such permission was granted in a note verbale from the Cambodian Ministry of Foreign Affairs, transmitted via the usual diplomatic channels. The French Navy then did set about stopping the vessel. At that time, the Winner did not fly any flag at all, and refused to identify itself when requested to do so by the French Navy. The Navy vessel fired a warning shot across the bow of the Winner, which then eventually stopped. After it had then tried to ram the boat carrying the French boarding party, French Navy personnel boarded the ship, and found considerable amounts of cocaine. The Navy officers arrested the crew of the Winner, who were then confined to quarters, while the Winner was taken to a French port (Brest). The journey from the place of the stop and search (in the waters off Cape Verde) to Brest took 13 days, during which the crew of the Winner were kept under arrest. Once at Brest, the crew were taken to police custody, and brought before a judge some 48 hours later. The case raises two main issues: (a) the legality of the arrest at sea, and (b) the legality of the delay between the arrest and the judicial decision. Continue reading →

 By Tobias Thienel

First of all, I do apologise for this late report (this is something I am going to have to do rather a lot in the next few days). The judgment of Mr Justice Collins in R (Smith) v Assistant Deputy Coroner for Oxfordshire [2008] EWHC 694 (Admin) is now over a month old. Still, it is quite interesting, so I propose to make some comments on it even now.

Collins J ruled in the High Court that British soldiers serving in Iraq were under the ‘jurisdiction’ of the United Kingdom within the meaning of Article 1 ECHR, and that they accordingly enjoyed rights under that Convention. In the case at hand, this meant that the inquest into the death of a British serviceman by the Assistant Deputy Coroner for Oxfordshire had to comply with the duties of investigation imposed by Article 2 ECHR (the duty to protect human life, inter alia by investigating any death that may arguably have been the result of wrongful acts and omissions of the state). I would suggest that Collins J was right, but that his reasons were not. The fault for that, I believe, lies with the Strasbourg Court more than with Collins J himself. Continue reading →

 By Tobias Thienel

The House of Lords has yesterday decided a case that could have been quite momentous. However, the claim by the appellants was dismissed by the House, as it had been by the Court of Appeal (I have previously said a bit about that earlier judgment in the days of The Core, here and here). The case is R (Gentle) v Prime Minister [2008] UKHL 20, and was apparently felt to be important enough to be decided by nine, rather than the usual five or the somewhat rare seven, Lords of Appeal in Ordinary. The appellants, mothers of two British Army soldiers, very understandably wanted the circumstances of their sons’ deaths examined in every last detail. Given the circumstances of the British decision to go to war in Iraq, this meant also that they wanted an examination of how the Attorney General at the time (Lord Goldsmith QC) came to advise the Government and the Chief of the Defence Staff that the war would be lawful in international law. To that end, counsel for the two aggrieved mothers argued that Article 2 ECHR (‘Everyone’s right to life shall be protected by law‘) implied obligations on the State – a) to send its soldiers to war only if it has diligently checked whether the war is lawful in international law, and b) once troops have been deployed and soldiers have died in action, to conduct a full impartial inquiry into whether the legality of the war has been diligently considered. Of course, the appellants only really wanted the second obligation stated by the House of Lords, but to that end, they needed to establish the first. The reason is this: it is settled law under the Convention that there must be a full inquiry if a) someone has died, and b) there is a possibility that the death was in some manner unlawful under Article 2 ECHR. That is obviously the case if the State has killed the person, but also if the State has failed to take appropriate protective measures. In other words, Article 2 must be engaged in order to give rise to an obligation to hold an inquiry. That is where the appellants failed before the House of Lords. The House decided that there was no obligation on the State deriving from the right to life to send its soldiers into war only where the legality of the war has been diligently considered. Continue reading →

 By Tobias Thienel

I have recently come across a very felicitous phrase that I would just like to briefly note here. It is in Judge Zupan?i?’s explanation of why ‘the enforcement of judicial decisions (…) is an essential and unchangeable element of the rule of law’, in his dissent in Nuutinen v. Finland (joined by Judges Pan?îru and Türmen). In making that argument, the Judge(s) said that ‘[o]ne must constantly keep in mind the original intent of all judicial conflict-resolution, which is to resolve by logic what would otherwise be resolved by arbitrariness, force, etc.’ This culminated in the following description of the rule of law: ‘The essence of the rule of law is that the logic of private force be replaced by the force of public logic.‘ Beautiful, isn’t it?

By Tobias Thienel

Some time ago, I reported here the case of Saadi v. Italy, decided by the Grand Chamber of the European Court of Human Rights (ECtHR) on 28 February. That case is most interesting for its clear – and, I would say, entirely correct, welcome and timely – clarification that the prohibition on torture and inhuman and degrading treatment is indeed absolute, even in the context of expulsions and extraditions. My earlier post was about that bit. But the case also contains some interesting observations on the law of evidence. I turn to those now, somewhat foreshadowing what I am going to have to say on this and other questions in a forthcoming article in the German Yearbook of International Law (on ‘The Burden and Standard of Proof in the European Court of Human Rights’). As will be recalled, the case was all about the prohibition of removing someone from the territory if that person faces a risk of being subjected to inhuman treatment in the State to which he is sent (Soering v. United Kingdom, paras. 85-91; Chahal v. United Kingdom, paras. 79-82). Of course, the question then arises: how do you prove that there is such a risk? Continue reading →