Court : House of Lords
..... i myself observed (para 25) that "the territorial focus of the act is clearly shown by the definition of 'the convention' in section 21 to mean the european convention 'as it has effect for the time being in relation to the united kingdom'". ..... the decision of the house in in re mckerr [2004] 1 wlr 807, established that a claimant could not base his claim under the act on a breach of convention right where the act complained of took place before section 7 of the act came into force, even though (irrespective of the date) a good claim might lie against the uk at strasbourg. ..... moreover, the court had referred to the principle of effective control of the territory established in loizidou and reiterated in bankovic, assanidze and ilascu and added (at para 71): "moreover, a state may also be held accountable for violation of the convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state's authority and control through its agents operatingwhether lawfully or unlawfullyin the ..... would recognise the uk's jurisdiction over mr mousa only on the narrow basis found established by the divisional court, essentially by analogy with the extra-territorial exception made for embassies (an analogy recognised too in hess v united kingdom (1975) 2 dr 72, a commission decision in the context of a foreign prison which had itself referred to the embassy case of x v federal republic of germany) .....
Tag this Judgment!Court : House of Lords
..... furthermore, in the case of torture, there would be an even more striking asymmetry between the torture convention and the rules of immunity if it were to be held that the same act was official for the purposes of the definition of torture but not for the purposes of immunity. ..... it also conforms with a number of domestic statutes elsewhere, such as section 1604 of the united states foreign sovereign immunities act 1976, section 3(1) of the singapore state immunity act 1979, section 3(1) of the pakistan state immunity ordinance 1981, section 2(1) of the south african foreign states immunities act 1981, section 3(1) of the canadian state immunity act 1982 and section 9 of the australian foreign states immunities act 1985. ..... lord browne-wilkinson appeared to assimilate the immunity under section 20(1) with common law immunity ratione materiae, expressed doubts as to whether torture was a "state function" but concluded that in any event the universal criminal liability created by the torture convention would be inconsistent with the existence of immunity ratione materiae. ..... to recognise the claimants' convention right, the house is accordingly asked by the claimants to interpret the 1978 act under section 3 of the human rights act 1998 in a manner which would require or permit immunity to be refused to the kingdom and the individual defendants in respect of the torture claims, or, if that is not possible, to make a declaration of incompatibility under section 4. 14. .....
Tag this Judgment!Court : House of Lords
..... the tribunal concluded that any other result would be discriminatory both under article 8 and under article 1 of protocol 1, read in each case with article 14 of the convention on human rights, and that it was possible to avoid a discriminatory result under section 6 of the interpretation act 1978 by reading 'man' to include 'woman' and 'woman' to include 'man' in the definitions in paragraph 1 of the masc regulations. ..... constitutes one of the modalities of the exercise of a right guaranteed' (see the national union of belgian police v belgium judgment of 27 october 1975, 1 ehrr 578, para 45), or the measures complained of are 'linked to the exercise of a right guaranteed' (see the schmidt and dahlstr m v.. ..... " the case is of interest because the echr referred in para 28 (citing an expression in the national union of belgian police case (1975) 1 ehrr 578, (para 45) to a test of whether "the subject-matter of the disadvantage constitutes one of the modalities of the exercise of a right guaranteed" (but in para 29 it actually applied the more familiar test of "within the scope"). ..... the case law can be traced back to national union of belgian police v belgium (1975) 1 ehrr 578 (see para 44) and to the belgian linguistics case (no 2) (1968) 1 ehrr 252 (see paras 9-10). 57. ..... in national union of belgian police v belgium (1975) 1 ehrr 578 the belgian government failed to consult a municipal police union about legislation affecting public sector employment rights. .....
Tag this Judgment!Court : House of Lords
..... court of human rights show that (in circumstances where that court considered that relief on judicial review grounds could not assist the occupiers) such a regime is in principle incompatible with the convention rights which are given domestic effect by the human rights act 1998, in particular because any person at risk of loss of his or her home should in principle be able to have the proportionality of the measure determined by an independent ..... legislation between tenancies as to which the court must be satisfied, and those as to which it need not be satisfied, that it is reasonable to make a possession order is, kay tells us, not open to attack under section 4 of hra, because parliament has over a long period worked out arrangements which strike a fair balance between the article 8 rights of existing tenants (who may be only probationary, or may have lost secure status as a ..... are obliged by section 6(1) of the human rights act 1998 to act in accordance with the convention rights incorporated by the act into domestic law. ..... baroness hale certainly did spot it but did not feel it necessary to express a definite view about it: see paras 187 and 192 of her speech, the latter quoted by carnwath lj ..... both issues, however, had been raised in connors; and in kay and price a definitive statement from the house regarding the type of case in which an article 8 defence might successfully be raised in answer to a possession claim was needed in order to take into account the possibility .....
Tag this Judgment!Court : House of Lords
..... the influence, and has produced the effect, described, it clearly involves treating that article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for ..... to prevent this problem from becoming a cause of tension between states, noting that the united nations high commissioner for refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of states with the high commissioner, ..... mode of incorporation by providing in primary legislation, in section 2 of the asylum and immigration appeals act 1993, headed "primacy of convention", that "nothing in the immigration rules (within the meaning of the 1971 act) shall lay down any practice which would be contrary to the convention" [defined to mean the 1951 convention and the protocol]. ..... and the french noun refoulement are, in article 33, the subject of a stipulative definition: they must be understood as having the meaning of the english verb and ..... act 1976, which in most respects is parallel to the sex discrimination act 1975. ..... of the european court of human rights in golder v united kingdom (1975) 1 ehrr 524. .....
Tag this Judgment!Court : House of Lords
..... a case such as the present in which parliament has expressly legislated in section 6 of the 1998 act to render unlawful any act of a public authority, including a court, incompatible with a convention right, has required courts (in section 2) to take account of relevant strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to convention rights and has conferred a right of appeal on derogation issues. ..... it seems clear from the language of section 21 of the 2001 act, read with the definition of terrorism in section 1 of the 2000 act, that section 21 is capable of covering those who have no link at all with al-qaeda (they might, for example, be members of the basque separatist organisation eta), or who, although supporting the general aims of al-qaeda, ..... the government wished to solve a problem which had three components: (1) it suspected certain people living here of being international terrorists - in the very broad definition given to that term by the act; but (2) either it could not or it did not wish to prove this beyond reasonable doubt by evidence admissible in a court of law; and (3) it could not solve the problem by deporting them, either for ..... there are many british nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists', and it was clear from the submissions made to us that in the opinion of the [secretary of state] there are others at liberty in the united .....
Tag this Judgment!Court : House of Lords
..... or stopping in the united states agreed voluntarily to forego any defence that they had taken all necessary measures (or that it was impossible to take them) under article 20; while the montreal convention of 1999 (set out in schedule 1b to the 1961 act and in force in the united kingdom since june 2004) omits altogether any such defence (substituting only limited provisions for exoneration in the case of negligence or other wrongful ..... " since in the event of inconsistency between the french and english texts the former prevails (see section 1 of the 1961 act), the french version cannot be ignored: "le transporteur est responsible du dommage survenu en cas de mort, de blessure ou de toute autre l sion corporelle subie par un voyageur lorsque l'accident qui a caus le dommage s'est produit bord de l'a ronef ..... they accepted the argument that her failure to move the asthma sufferer to an available seat further away from the smoking section was a cause of the damage external to the passenger and, since it was contrary to normal airline industry standards, was therefore ..... in air france v saks 470 us 392 justice o'connor, having cited lord lindley's definition of an "accident", having surveyed the french case-law and dictionaries and having reviewed the history of the negotiations that had led to the convention, concluded at p.405: " liability under article 17 of the warsaw convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is .....
Tag this Judgment!Court : House of Lords
..... before turning to the details of the appellant's claim, it is convenient to consider, in principle, the entitlement of an applicant or claimant to damages under the european convention and under section 8 of the human rights act 1998, and then to consider the principles adopted in strasbourg in relation to claims for compensation for violations of article 6. ..... there are also pre-conditions to an award of damages by a domestic court under section 8: (1) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of ..... " article 41 is not one of the articles scheduled to the 1998 act, but it is reflected in section 8 of the act, which is to this effect: "judicial remedies (1) in relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. .....
Tag this Judgment!Court : House of Lords
..... actual reasoning of the main judgment, judge kuris) and the three authors of the partially dissenting opinion (sir nicolas bratza and judges fuhrmann and tulkens) took the view that articles 8 and 14 of the convention were engaged by the refusal, attributed to mr frett s sexual orientation, to allow mr frett to adopt: see paragraphs 33 and o-ii1 (and also the analysis in paragraph 14 of the joint committee on ..... but the definition of different-sex couples and same-sex couples who are living together in a stable relationship (article 7(2) of the new draft european convention on the adoption of children) is not without difficulties (compare section 144(4) to (6) of the adoption and children act 2002 and the recent decision of the strasbourg court in burden v united kingdom application no 13378/05, ..... (ullah) v special adjudicator [2004] 2 ac 323, in the passage from para 20 which my noble and learned friend lord hoffmann has quoted, the house is required by section 2(1) of the human rights act 1998 when it is considering whether any article of the european convention on human rights is engaged by anything done by a public authority to take into account any relevant strasbourg case law. ..... v united kingdom (1975) 1 ehrr 524 ..... act 1976 (which extended to england and wales only) consolidated changes made between 1958 and 1975 ..... ireland assembly established by the northern ireland constitution act 1973, which was prorogued in 1974 and dissolved in 1975 under the northern ireland act 1974. .....
Tag this Judgment!Court : European Court of Human Rights
..... . the court considers that by bringing a fresh indictment against the applicant and convicting him of war crimes against the civilian population, the croatian authorities acted in compliance with the requirements of articles 2 and 3 of the convention and in a manner consistent with the requirements and recommendations of the above-mentioned international mechanisms and instruments ..... . cambodia, which has ratified the iccpr, also had and continues to have an obligation to ensure that victims of crimes against humanity which, by definition, cause serious violations of human rights, were and are afforded an effective remedy ..... after considering the case file, this panel has concluded that the conditions under section 1(1) and (3) and section 2(2) of the general amnesty act have been met and that the accused is not excluded from amnesty. ..... , were this to be the case, the amnesty would encompass all criminal offences committed between 27 august 1990 and 23 august 1996 by members of the croatian army or the enemy units (save for those specifically listed in section 3(1) of the general amnesty act); this was certainly not the intention of the legislature. ..... 80/1996, zakon o op em oprostu) reads as follows: section 1 this act grants general amnesty from criminal prosecution and trial to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the .....
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