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Important Message: The Aspals Case Updater is one of the most comprehensive collections of decisions on UK military cases, with 416 cases listed so far. The cases listed in the database now include important Human Rights cases from home and abroad, thought to be of interest to practitioners. Below is a short list of interesting cases, contained in the more extensive database. These cases are mainly human rights cases. To avoid any conflict with the High Court decision in the Google "right to be forgotten" Case [2018] EWHC 799 (QB), all public links to cases where appellants have been - or may be - identified have been removed. For those legal professionals who subscribe to the Aspals database, the case search facility remains active. A list of available research materials can be viewed here. This sheet can be downloaded free of charge and, if you have a password, its contents linked to directly. Please continue to support us with a donation through PayPal or by purchasing indexed judgments. Better still, why not take out an annual subscription? Thank you. Please note: (1) The search facility is now only available to subscription holders. If you wish to see the case summaries and access the full decisions, please take out a subscription; (2) while we do our best to accurately summarise content of cases, these summaries are not intended to be regarded as authoritative. Please consult the source decision; (3) Some cases have been anonymised due to their sensitive nature (eg sexual offences against children and young persons or where the court has directed). To search these cases, try searching by 'offence' and/or 'summary'. An indexed case is a decision where bookmarks have been added to the text, often with hotlinks to relevant law and precedent, thus making research so much easier. They provide a 'road map' of the decision. Corrections to erroneous citations are also made and explanatory notes added where necessary. Indexed cases take quite some time to prepare, so there is a modest fee for the work done. Click on the flashing download button to access the Indexed file. The blue hypertext links are to the database, for which a subscription is required. You can search all our case database using the Search button opposite. It allows search by case name, citation, heading and facts. |
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Name | Reference | |
Google Case, NT1, NT2 -v- Google Right to be forgotten, criminal convictions, spent convictions, data protection, privacy rights, anonymity, internet search engine, Rehabilitation of Offenders Act 1974, Directive 95/46 EC, Data Protection Act 1998, Charter of Fundamental Rights of the European Union 2000/C 364/01, Regulation (EU) 2016/679, the General Data Protection Regulation
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[2018] EWHC 799 (QB),
13/04/2018 |
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The claimants were two businessmen who were convicted of criminal offences many years ago. The defendant, ("Google"), operates an ISE called Search which has returned and continues to return search results that feature links to third-party reports about the claimants' convictions. The claimants said that the search results convey inaccurate information about their offending. Further, they sought orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information is not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights.
HELD: In relation to NT1:
Coram: Mr Justice Warby
Claimants: Hugh Tomlinson QC & Jonathan Barnes (instructed by Carter-Ruck); Defendant: Antony White QC and Catrin Evans QC (instructed by Pinsent Masons LLP) Intervenor: Anya Proops QC & Rupert Paines (instructed by in-house lawyers for The Information Commissioner) |
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Ireland v. The United Kingdom Torture, inhuman and degrading treatment, proper meaning, Northern Ireland, the five techniques of interrogation
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HUDOC,(Application no. 5310/71)
20 March 2018 |
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The case originated in an application (no. 5310/71) lodged [on 16 December 1971] with the European Commission of Human Rights by the Government of Ireland ("the applicant Government") against the Government of Great Britain and Northern Ireland. The case was referred to the Court by the applicant Government. In a judgment delivered on 18 January 1978 ("the original judgment"), the Court held, in so far as relevant in the context of the present revision request, that the use of the five techniques of interrogation in August and October 1971 constituted a practice of inhuman and degrading treatment, in breach of Article 3 of the Convention, and that the said use of the five techniques did not constitute a practice of torture within the meaning of Article 3 (see paragraphs 165-169 below and points 3 and 4 of the operative part of the original judgment). On 4 December 2014 the applicant Government informed the Court of new information and requested a revision of a judgment to the effect that the use of the five techniques of interrogation in depth amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention. HELD: By 6 votes to 1, the Court dismissed the application. Even assuming that the documents submitted demonstrated that the Commission had been misled as regards the effects of the five techniques, the Court considered that it cannot be said that it might have had a decisive influence on the Court's finding in the original judgment that the use of the five techniques constituted a practice of inhuman and degrading treatment in breach of Article 3 of the Convention but did not constitute a practice of torture within the meaning of that provision.
Coram: Helena Jaderblom, President, Branko Lubarda, Luis Lopez Guerra, Helen Keller, Dmitry Dedov, Siofra O'Leary, judges, Robert Reed, ad hoc judge, and Stephen Phillips, Section Registrar, Applicant: Mr P. White, of the Department of Foreign Affairs and Trade; Respondent: Mr P. McKell, of the Foreign and Commonwealth Office. |
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Alseran, Alseran & Others v MOD Human rights, Afghanistan, Iraq, unlawful detention, mistreatment, British forces, Crown act of state, Mr Justice Leggatt, Leggatt J, Geneva Conventions 1949, review process, legal basis for the capture, international armed conflict, suspected prisoner of war
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[2017] EWHC 3289 (QB),
14 December 2017 |
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The claimants in these cases were Iraqi citizens who alleged that they were unlawfully imprisoned and ill-treated (or in a few cases that their next-of-kin was unlawfully killed) by British armed forces and who were claiming compensation from the Ministry of Defence ("MOD"). The claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort is applicable to these claims. But the claims are subject to a doctrine known as Crown act of state which (in broad terms) precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad.
Coram: Mr Justice Leggatt Claimants: Richard Hermer QC, Harry Steinberg QC, Rachel Barnes, Nina Ross Helen Law, Alison Pickup, Edward Craven, Maria Roche and Melina Padron; Defendant: Derek Sweeting QC, James Purnell and Saara Idelbi |
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Caroline, The Caroline Case Pre-emptive self defence, instant, overwhelming, leaving no choice of means, no moment for deliberation, customary international law
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1842
Yale Avalon Project |
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The Caroline was an American steamer which had been used by Canadian rebels. The rebels enjoyed widespread support from Americans. During the insurrection in Canada in 1837 sympathetic commotions occurred at various places in the United States, especially along the Canadian border. The Government of the United States remained principally neutral and adopted active measures for the enforcement of the neutrality laws, but the difficulties of the situation were increased by the course of the insurgents, who, when defeated, sought refuge in the United States, where they endeavored to recruit their forces. The Caroline left Buffalo on the 29th of December for the port of Schlosser, which was also in New York. She was used to carry Canadian rebel forces. At midnight about 70 or 80 members of the British force at Chippewa boarded the steamer and attacked the persons on board with muskets, swords, and cutlasses. The "passengers and crew," of whom there were in all 33, merely endeavored to escape. After this attack the assailing force set the steamer on fire, cut her loose, and set her adrift over the Niagara Falls. Only 21 of the persons on board were been found, and one of these, Amos Durfee, a US citizen and crew member, was killed on the dock by a musket ball. Secretary of State Forsyth sent a note to Mr. Fox, the British minister at Washington, saying that the destruction of property and assassination of citizens of the United States on the soil of New York, when the President was endeavoring to allay excitement and prevent any unfortunate occurrence on the frontier, had produced "the most painful emotions of surprise and regret," and that the incident would be made the "subject of a demand for redress." Fox replied that the piratical character of the Caroline seemed to be fully established; that the ordinary laws of the United States were not at the time enforced along the frontier, but were openly overborne; and that the destruction of the Caroline was an act of necessary self-defense.'
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Adyan and Others v Armenia ECHR, Human Rights, Article 5, Right to liberty and security; Article 9; Freedom of thought, conscience and religion, Conscientious Objection; Jehovah's Witnesses; performing alternative labour service; National Commission
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(Application no. 75604/11), 1st Section, 12 October 2017 |
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The applicants were four Jehovah's Witnesses who were found to be fit for military service. In May and June 2011 they were called up for military service. They failed to appear, and instead addressed letters to the local military commissariat and the regional prosecutor's office, refusing to perform either military or alternative service. They stated that they were Jehovah's Witnesses and claimed that the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. They said that their conscience did not allow them to work directly or indirectly for the military system.
The court, unanimously declared the complaints admissible and Held that there had been a violation of Article 9 of the Convention. Coram: Judges Linos-Alexandre Sicilianos, President, Kristina Pardalos, Aleš Pejchal, Ksenija Turkovic, Pauliine Koskelo, Tim Eicke, judges, Siranush Sahakyan, ad hoc judge, Applicants: Mr P. Muzny, Professor of Law at the Universities of Savoy and Geneva, and Mr A. Carbonneau and Mr A. Martirosyan, lawyers practising in Paris and Yerevan respectively Respondent: Mr G. Kostanyan, Representative of the Republic of Armenia |
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Mikhno -v- Ukraine ECHR, Human Rights, Military Courts, Right to life, Article 2, Article 6, Fair Trial, independence and impartiality, effective investigation, lengthy proceedings, effective remedies
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Application no. 32514/12, Fifth Section, 1 September 2016 |
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The applicants alleged, in particular, that the State authorities had been responsible for the deaths of their relatives, Sergiy and Tetiana Mikhno, during a military airshow when an SU-27 military aircraft piloted by Colonels V.T. and Y.Y. crashed into the static aircraft display site where there were numerous spectators, where it exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people died and over 290 sustained injuries. The applicants also alleged that the State Authorities failed to conduct an effective investigation of the relevant circumstances; that the courts dealing with their claim for damages lacked independence and impartiality, that the relevant proceedings had been inordinately lengthy and that there were no effective remedies for the length of proceedings complaint. HELD: there has been no violation of Article 2 of the Convention; there has been a violation of Article 6 § 1 as regards the length of the proceedings in respect of the first applicant; there has been a violation of Article 13 of the Convention on account of the absence of effective domestic remedies in respect of the first applicant's complaints concerning the length of the proceedings;
Coram: Angelika Nußberger, President, Ganna Yudkivska, Khanlar Hajiyev, Erik Mose, Andre Potocki, Yonko Grozev, Carlo Ranzoni, judges, and Milan Blasko, Deputy Section Registrar, Applicant: Mr D.A. Gudyma and Ms S.V. Khyliuk Respondent: Ms O. Davydchuk |
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Krstic, The Prosecutor -v- Radislav Krstic Appeal, Srebrenica, Genocide, aiding and abetting genocide, persecution through murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property, crimes against humanity, Bosnian Muslims, Branjevo, Erdemovic, Mladic, Parallel Chain of Command, Circumstantial evidence, genocidal intent, Knowledge, state of mind |
Case No: IT-98-33-A ICTY Appeals Chamber 19 April 2004 | |
The facts of this case relate mainly to events which took place in the town of Srebrenica around July 1995. Srebrenica is located in eastern Bosnia and Herzegovina. It gave its name to a United Nations so-called "safe area", which was intended as an enclave of safety set up to protect its civilian population from the surrounding war. Since July 1995, however, Srebrenica has also lent its name to an event the horrors of which form the background to this case. The depravity, brutality and cruelty with which the VRS, the Bosnian Serb Army, treated the innocent inhabitants of the safe area are now well known and documented. Bosnian women, children and elderly were removed from the enclave, and between seven to eight thousand Bosnian Muslim men were systematically murdered.
Defence appealed on four grounds, two of which were substantial: Coram: Judges Theodor Meron (Presiding), Fausto Pocar, Mohamed Shahabuddeen, Mehmet Güney and Wolfgang Schomburg Prosecution: Mr. Norman Farrell, Mr. Mathias Marcussen, Ms. Magda Karagiannakis, Mr. Xavier Tracol, Mr. Dan Moylan Defence: Mr. Nenad Petrusic, Mr. Norman Sepenuk |
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Ruggiu, The Prosecutor -v- Ruggiu Propaganda, hate speech, conspiracy, incitement to commit genocide, crimes against humanity
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ICTR-97-32,
Free Access |
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The defendant was employed as a journalist and broadcaster at RTLM. He is a Belgian national. He maintained close
contacts with senior officials of the Rwanda Armed Forces. He left Rwanda for the Republic of Zaire, as it then was, about mid-July 1994. As employee of the RTLM, Ruggiu made broadcasts over the radio station advancing the theme that the 1959 revolution was unfinished, inviting the population to finish it off, which were calls for the elimination of the Tutsis. On 18 June 1994, he broadcast over the RTLM that Tutsis in Gitwe had not yet been killed, and directed that roadblocks be reinforced so that no one would escape. During the events giving rise to the charges in this indictment, the media exercised great influence over the Rwandan population, depicting the Tutsis as a group who wanted to wrest political power and economic power from the-Hutus, and stereotyping and denigrating Tutsis, including sexual denigration. He was found guilty on 6 counts and sentenced to a single concurrent sentence of twenty years for each of the counts.
Coram: Judge Navanethem Pillay, Presiding, Judge Erik Møse, Judge Pavel Dolenc; Prosecution: Carla del Ponte, Mohamed Othman, William T. Egbe Respondent: Mohammed Aouini and Jean Louis Gilissen |
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L, R -v- L Sentencing Guidelines Council, Court Martial Guidance on sentencing, Assault, racial abuse, Military Policeman, RMP, Effect of Reduction in Rank
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Indexed File,[2017] EWCA Crim 709
Free Access, [2017] EWCA Crim 709 |
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RMP NCO assaulted another RMP NCO while heavily intoxicated. He alleged that the victim had used racially abusive language to him. The victim was examined at hospital where he was seen to have sustained a partial thickness laceration above his right eyebrow, (closed with three steri strips), bruising over his left cheek and a superficial laceration of his left lower lip. At trial, the Judge Advocate refused to consider the Sentencing Council Guideline despite the defence advocates attempts to persuade him of their relevance. He was sentenced to be reduced to the ranks, dismissed from the service and to serve 60 days' detention. HELD: The sentencing process was flawed in a number of respects. The CMAC considered the sentence afresh. Appeal allowed. Order of detention, the order for dismissal and reduction to the ranks quashed. In their stead the CMAC imposed a Severe reprimand.
Coram: Vice-President Of The Court Of Appeal (Criminal Division) (Lady Justice Hallett), Mrs Justice Cheema-Grubb Dbe, Mr Justice Lavender Appellant: Mr R Scott Respondent: Colonel D Phillips |
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Ntaganda, Prosecutor -v- Ntaganda War Crimes, International Humanitarian Law, IHL, Geneva Conventions, Armed Conflict, Rome Statute, members of an armed force or group not excluded from protection against war crimes of rape and sexual slavery, international criminal law
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[2017] ICC-01/04-02/06OA5
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Bosco Ntaganda was criminally responsible for the rape of UPC/FPLC child soldiers, a war crime, punishable pursuant to
article 8 (2) (e) (vi) and sexual slavery of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi). Ntaganda argued, inter alia, against the confirmation of these charges on the basis that "crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law". HELD: Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2)(b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group. Nevertheless, it must be established that the conduct in question "took place in the context of and was associated with an armed conflict" of either international or non-international character. It is this nexus requirement that sufficiently and appropriately delineates war crimes from ordinary crimes. {See an interesting critique of the decision by Kevin Jon Heller].
Coram: Claimants: Respondent: |
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GHT, R -v- Outraging public decency, act of fellatio, "No Case to Answer", Intoxication of victim, Alcohol consumed, credibility, role of prosecutor
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[2010]
19th May 2010 | |
The matter charged, of outraging public decency, arose out of a visit to Jay's bar in Herford, West Germany on the night of 24th/25th January 2009. The Crown's entire case rested upon the evidence of a drunken private. Her evidence was that she went to the bar at a time she could not recall, although she indicated later it was probably 11 o'clock. Before she went she had drunk five or six vodkas and Coke. She then carried on drinking at the bar and dancing until about 3.00 am. Plainly by that time she must have been in a very advanced state of drunkenness. HELD: the witness concerned was obviously very, very drunk, there were a number of other people in the bar who had seen nothing and she had given inconsistent evidence. The submission that was made at the end of the prosecution case of "No Case to Answer" should not have been opposed by the Crown. The appeal was allowed and the sentence quashed.
Coram: Lord Justice Thomas, Mr Justice Openshaw, Mr Justice Macduff; Appellant: Mr J Wing. Crown: Mr D Richards |
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Benavent Díaz -v- Spain Summary Dealing, article 5 (deprivation of liberty), article 6 (fair trial), validity of reservation to ECHR
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[2017] (Application 46479/10) (In French)
23 February 2017; Court (Third Section | |
Dealt with summarily in on 22 February 2006 by his Commanding officer for absence from his place of duty while on an operational tour in Bosnia. Sentenced to 6 days arrest (to be spent in his accommodation) at Camp Butmir in Bosnia and Herzegovina, while being required to participate during his regular working hours in the activities of his unit. This was a minor punishment under Basic Law No. 8/1998 of 2 December 1998 concerning the disciplinary regime of the armed forces ("Organic Law No. 8/1998"). He complained that the the reservation made by Spain in 1979, could not be in accordance with Organic Law No. 8/1998, as Spain had informed the Council of Europe of the entry into force of this Act only on 23 May 2007, after he had served the punishment.
His appeal to the Madrid District Court was unsuccessful. The Court considered that the reservation made by Spain was applicable to the present case, as it had remained in force without interruption since 1979, despite the fact that the Spanish authorities had not informed the Council of Europe of the legislative change in 1998 (corresponding to the entry into force of the Act No. 8/1998) that on 23 May 2007. His further appeal to the Court of Cassation was also dismissed. HELD: Only laws "in force" at the time of ratification may be the subject of a reservation. The question which remained to be decided was whether the reservation remained suspended without effects until it was updated or, on the contrary, remained in force as long as the Court did not declare the new law incompatible with the Treaty. The Court reiterated that, in order to be valid, a reservation must meet the following conditions: (1) it must be issued when the Convention or its Protocols are signed or ratified; (2) it must relate to a particular provision of the Convention; (3) it must relate to specific laws in force at the time of ratification; (4) it must not be of a general nature; (5) it must contain a brief statement of the law concerned. The Court, unanimously, declared the complaint inadmissible. Coram: Helena Jäderblom, president, Helen Keller, Branko Lubarda, Pere Pastor Vilanova, Alena Polácková, Georgios A. Serghides, judges, Blanca Lozano Cutanda, ad hoc judge; Applicant: Mr Casado Sierra and Mr D. Flores González; Spanish Government: R.-A. León Cavero, State Counsel and Head of the Legal Department of Human Rights at the Ministry of Justice. |
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Belhaj and another (Respondents) -v- Straw and others (Appellants) Rahmatullah (No 1) (Respondent) -v- Ministry of Defence and another (Appellants) Torture, complicity, rendition, state immunity
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[2017] UKSC 3
17 January 2017 | |
Each respondent alleged complicity by MI6 agents in their detention and mistreatment by agents of third party states. The issues before the Court were whether, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials were properly triable in the English courts.
HELD: Government's appeals were unanimously dismissed. To have held otherise would have meant the appellants could not have been sued anywhere for their alleged complicity in such torts, since they would be entitled to invoke state immunity in any foreign jurisdiction. Coram: Lord Neuberger (President), Lady Hale (Deputy President), Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes; Appellants (Straw & Others): Rory Phillips QC, Sam Wordsworth QC, Karen Steyn QC, Sean Aughey; Respondents (Belhaj and another): Richard Hermer QC, Ben Jaffey, Maria Roche; Appellants (Ministry of Defence and another): James Eadie QC, Karen Steyn QC, Melanie Cumberland Respondent (Rahmatullah): Phillippa Kaufmann QC, Edward Craven; Richard Hermer QC, Nikolaus Grubeck, Maria Roche; Interveners (UN Special Rapporteur on Torture and another): Nathalie Lieven QC, Ravi Mehta, Shane Sibbel; Interveners: Martin Chamberlain QC, Oliver Jones, Zahra Al-Rikabi |
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Rahmatullah (No 2) -v- Ministry of Defence Mohammed -v- Ministry of Defence UK armed forces, Detention in non-international armed conflict (NIAC), transferring prisoners to ally, Crown act of state, liability in tort, ECHR, article 3
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[2017] UKSC 1
17 January 2017 | |
The Appeals concerned the nature and content of the doctrine of Crown act of state. Respondents claimed to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. Insofar as the proceedings include claims based on the Iraqi or Afghan law of tort, the Government (along with other defences) raised the doctrine of Crown act of state.
HELD: The UKSC unanimously allowed the Government's appeals. The principle that there is no general defence of state necessity to a claim of wrongdoing by state officials has been established since the eighteenth century, save for the exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown. But the doctrine must be narrowly confined to a class of acts which involve an exercise of sovereign power, inherently governmental in nature, committed abroad, with the prior authority or subsequent ratification of the Crown, in the conduct of foreign relations of the Crown. In proceedings in tort governed by foreign law, the Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim if the circumstances are such as defined by this judgment. Per Lady Hale, at §32:"...if act of state is a defence to the use of lethal force in the conduct of military operations abroad, it must also be a defence to the capture and detention of persons on imperative grounds of security in the conduct of such operations. It makes no sense to permit killing but not capture and detention, the military then being left with the invidious choice between killing the enemy or letting him go." [More background in the summary for members]. Coram: Lord Neuberger, President; Lady Hale, Deputy President; Lord Mance; Lord Clarke; Lord Wilson; Lord Sumption; Lord Hughes; Appellant (Rahmatullah): James Eadie QC, Karen Steyn QC, Julian Blake; Appellant (Mohammed) : James Eadie QC, Sam Wordsworth QC, Karen Steyn QC, Julian Blake, Sean Aughey; Respondents (Rahmatullah): Richard Hermer QC, Nikolaus Grubeck, Maria Roche; Respondents (Mohammed): Richard Hermer QC, Ben Jaffey, Nikolaus Grubeck; |
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Kontic and Others -v- Ministry of Defence Kosovo, ECHR, Jurisdiction, Attribution, UN Mandate, Geneva Conventions, the 1992 UN Declaration for the Protection of all Persons from Enforced Disappearances, Private International Law (Miscellaneous Provisions) Act 1995. Immunity from local jurisdiction |
[2016] EWHC 2034 (QB) 04/08/2016 | |
Claims arose from the dangerous and chaotic period which followed the deployment of the international military coalition known as "KFOR" into Kosovo, in June 1999. The three Claimants are the widows of Serbs abducted or murdered in or near Pristina, Kosovo, between 16 June and 5 July 1999. They alleged that British forces "failed to protect their family members or properly investigate [the killings] and to date the perpetrators remain at large". UNSCR 1244 was passed on on 10 June 1999, authorising KFOR "deployment in Kosovo, under United Nations auspices, of international civil and security presences" and setting out the responsibilities of the international security presence to be deployed and acting in Kosovo. HELD: Citing the Grand Chamber decision in the case of Behrami & Saramati v France (Application no. 71412/01), the court determined the matter of attribution and decided that the acts and omissions of British forces were attributable to the United Nations and not to the British government.
Effective Control of the Area: the court rejected the claimant submissions that jurisdiction here can arise from the supposed effective control of the central MNB of Kosovo at the relevant period in the sense of such a degree of control so as to be in a position effectively to guarantee the gamut of convention rights. It is absurd to argue that KFOR was, or could be expected to be, in effective control of central Kosovo within a matter of days of the military takeover pursuant to the MTA. Effective control of an area as the foundation for an extension of the territorial jurisdiction of the European Convention, cannot arise from the fact that the forces of a Member State are the only significant force in an area. State Agent Authority and Control: In the instant cases, there was never any physical control by the Defendant of the Claimants' relatives. To found an extension of the Convention jurisdiction on the basis that initial investigatory steps were taken by military police officers attached to KFOR would represent a radical extension of the existing approach of the Strasbourg Court. Having concluded that there was no jurisdiction under the Convention, it follows that no "operational protective duty" arose under Articles 2 or 3. Moreover, in the conditions agreed to be prevailing in Kosovo in the relevant weeks in June and July 1999, it seems inconceivable that such a general duty could arise for an international force brought in to attempt stabilisation in such circumstances. Investigative duties can and do arise where a Member State carries the full range of duties commensurate with a territorial jurisdiction or where effective control of an area is established. Where jurisdiction is based on "physical control" or "SAA", then it is clear that an investigative duty arises in respect of the deaths (or Article 3 breaches, were they to arise) of those individuals concerned. In such circumstances there must be a trigger for an investigative obligation to arise. No freestanding investigative obligation arose under the Convention. It seems inconceivable that a duty to investigate arising during the short period when KFOR represented authority in Kosovo could be thought open-ended in time. No duties were owed under Articles 8 and 13. Application of HRA: In the course of Re McKerr [2004] UKHL 12, the House of Lords had clearly decided that the Human Rights Act could not be retrospective in its effect. It does not permit a claimant to bring a claim for breach of a Convention obligation before [the Act] came into force. McKerr remains good law and binding authority. Customary international law: Parliament, not the Executive, makes the law. Customary international law may be regarded as "not a part but … one of the sources of English law...customary international law is applicable in the English Courts only where the Constitution permits". The Human Rights Act 2000 does not apply to the deaths and disappearances which are the subject of this complaint. Immunity conferred on the Defendant under UN Security Council Resolution 1244 and set out in the Joint Declaration and UNMIK Regulation 2000/47: These documents provide that "KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending state." However, the court found that the actions of KFOR fall to be attributed at law to the United Nations. That is sufficient to avoid liability on the part of the Defendant. The KFOR compensation scheme: There was no evidence before the court capable of establishing the scheme as being a practical opportunity for individuals to gain compensation. However, the court rejected any claim of abuse of process based on the compensation scheme. Immunity from action for direct liability, as opposed to vicarious liability: On balance the court found that such an immunity was established. That was clearly the intention in the agreement and regulation. Coram: Mr Justice Irwin; Claimants: Kirsty Brimelow QC, Catherine Meredith and Alex Gask (instructed by Savic & Co); Defendant: James Eadie QC, Brendan McGurk and Michelle Butler (instructed by The Government Legal Department). |
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Mehida Mustafic-Mujic and others -v- Netherlands Muhamed Nuhanovic, ECHR, jurisdiction, effective control, Srebrenica massacre, Geneva Conventions, criminal investigation, effective investigation, decision not to prosecute, Jaloud |
(2016) (application no. 49037/15) 30 August 2016 | |
The applicants were relatives of deceased civilians, murdered by Bosnian Serb forces under the command of General Ratko Mladic, at Srebenica on or shortly after 13 July 1995. The complaint was that the Dutchbat commander and officers failed to take proper steps to protect them and that, subsequently, the Dutch authorities failed to investigate properly, in accordance with their obligation under Art 2 ECHR, their alleged complicity in genocide or alternatively in war crimes. After detailed consideration of the case, the public prosecutor decided not to take proceedings against the officers. The applicants then complained that the time taken for the public prosecutor to come to a decision had been excessive; that the investigation had been flawed in that it had been limited to information already available to the public; that the applicants had not been sufficiently involved, and in particular that they had not been heard; that the opinion of the reflection chamber – which in their submission favoured prosecution – had been ignored; that the decision not to prosecute was politically motivated; and that substantive criminal law had been misapplied. This complaint was dismissed by the Court of Appeal. A further submission was made by the Prosecutor that the Netherlands lacked jurisdiction within the meaning of Article 1 of the Convention, because as of 11 July 1995 "effective control" of the Srebrenica enclave had been exercised by the VRS not Netherlands armed forces. HELD: Having regard to the proceedings as a whole, "it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation ... which was capable of leading to the establishment of the facts, ... and of identifying and – if appropriate – punishing those responsible" (see Armani Da Silva, § 286). The application was manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. The Court unanimously Declared the application inadmissible.
Coram: Luis Lopez Guerra, President, Helena Jäderblom, Johannes Silvis, Branko Lubarda, Pere Pastor Vilanova, Alena Polackova, Georgios A. Serghides, judges, and Fatos Araci, Deputy Section Registrar; Applicants: Ms L. Zegveld and Mr T. Kodrzycki |
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British Gurkha Welfare Society and Others -v- United
Kingdom ECHR, Article 14, Article 1 of Protocol No. 1 (protection of property), Gurkha veterans, pension rights, Tripartite Agreement, Accompanied service, |
(2016) (application no. 44818/11) 15 September 2016 | |
The Court was satisfied that Gurkha soldiers had been treated differently from other soldiers in the
British Army as concerned their entitlement to a pension and that the difference in treatment could be regarded as less favourable. Furthermore, in view of the changes to the Gurkhas' situation, the Court accepted that by 2007 – the date of the offer to transfer – Gurkha soldiers had been in a similar situation to other soldiers in the British Army. However, the Court considered that any difference in treatment on grounds of nationality had been objectively and reasonably justified. In particular, the cut-off point, 1 July 1997, for different treatment of accrued pension had not been arbitrary as it represented the transfer of the Gurkhas' home base to the UK and therefore the point in time from which the Gurkhas had started forming ties with the country. Likewise, the Court considered that any difference in treatment based on age had also been objectively and reasonably justified. {This summary extracted from the Court's Press Release).
Coram: Mirjana Lazarova Trajkovska, President, Ledi Bianku, Linos-Alexandre Sicilianos, Paul Mahoney, Ales Pejchal, Robert Spano, Pauliine Koskelo, judges, and Abel Campos, Section Registrar; Applicants: Mr E. Cooper of Slater and Gordon (UK) LLP; UK Government : Ms A. McLeod of the Foreign and Commonwealth Office. |
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Al-Saadoon & Ors-v-Secretary Of State For Defence; Rahmatullah & Anr-v-Secretary Of State For Defence ECHR, Iraq, Extra-territorial jurisdiction, ECHR, has Al-Skeini overruled Bankovic?, Hassan, Jaloud, Soering, international humanitarian law, IHL |
[2016] EWCA Civ 811 9 September 2016, CMAC | |
The extent to which the European Convention on Human Rights ("ECHR") applies to the conduct of British forces in Iraq remains highly controversial. There are two particular areas of controversy.
1. The question of the scope of application of the Convention and when individuals are to be considered to be within the "jurisdiction" of a contracting State within Article 1 of the Convention. The answer to the question whether the jurisdiction issue in Bankovic would be decided in the same way following the decision in Al-Skeini will depend on the precise scope of the exceptions acknowledged in Al-Skeini.In previous High Court proceedings, Leggatt J identified 4 issues, which the CA dealt with:
Coram: Lady Justice Arden; Lord Justice Tomlinson; Lord Justice Lloyd Jones; Appellants (Saadoon): Michael Fordham QC, Dan Squires QC, Jason Pobjoy and Flora Robertson (instructed by Public Interest Lawyers Limited); Appellant (Rahmatullah): Phillippa Kaufmann QC and Adam Straw (instructed by Leigh Day Solicitors) Respondent: James Eadie QC, Karen Steyn QC and Kate Grange |
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