Copyright Notice, Limited Permissions, and Disclaimers
Chapter 21: Human Rights
The material formerly found here is now contained in the first supplement to Jervis, published by Sweet & Maxwell in November 2003, with ISBN 0 421 858 907.
21-01, 21-05, 21-07 The decision of Silber J in R (Khan) v Health Secretary was reversed by the Court of Appeal, under neutral citation [2003] EWCA Civ 1129, holding (contrary to the judge) that the State's obligation to provide for an inquiry under Art 2 of the ECHR had not been satisfied before the inquest was held, and that the obligation attached even though the death occurred before the coming into force of the Human Rights Act 1998.
However, in Re McKerr [2004] UKHL 12, the House of Lords reversed the decision of the Court of Appeal of Northern Ireland [2003] NICA 1, and held that the duty to investigate under art 2 did not arise in domestic law in respect of deaths before the coming into force of the Human Rights Act 1998, on 2 October 2000. The decisions of Jackson J in R (Wright) v Home Secretary [2001] Lloyd's Rep Med 478, the Divisional Court in R (Hurst) v North London Coroner [2003] EWHC 1721 (Admin), and the Court of Appeal in R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129 to the contrary were effectively overruled.
In R (Challender) v Legal Services Commission [2004] EWHC 925 (Admin), Richards J rejected the view that the decision in Re McKerr [2004] UKHL 12 was restricted in scope:
"29 Mr Gill submits that McKerr does not defeat the claimants' arguments. He points out first that the issue in McKerr was whether some further investigation should be held into a death that had occurred in 1982 and in respect of which there had already been a coroner's inquest, whereas the issue in the present case is whether, in the context of an acknowledged duty to carry out an inquest irrespective of the Human Rights Act, the LSC's decision to refuse funding and its interpretation of the Lord Chancellor's guidance violates the procedural obligation of article 2: the present case therefore concerns the link between an undisputed domestic law obligation to carry out an inquest and the need to make procedures at that inquest, which has yet to take place, article 2 compliant. In my view that is not a relevant point of distinction. The claimants' case still depends upon the procedural obligation under article 2 having legal force in domestic law in relation to the investigation of a death that occurred before the Human Rights Act came into force; whereas McKerr holds decisively that the obligation exists in domestic law only in relation to deaths that occurred after the Act came into force. For this court to hold, in relation to a death that occurred before the Act came into force, that the LSC had violated article 2 by refusing funding, or had interpreted the guidance in a way that violated article 2, would be to give the procedural obligation under article 2 a legal force which the House of Lords has held it does not have. It makes no difference that the LSC's funding powers and the coroner's duty to investigate exist under domestic law independently of article 2, or that the funding decision itself is made and the inquest is carried out after the Human Rights Act came into force. The article 2 obligation to investigate cannot be invoked as a basis for challenging the funding decision where, because of the timing of the death, the article 2 obligation simply does not arise under domestic law.
30 Mr Gill submits, as I understand it, that article 2 can still be relied upon because there is an issue concerning the interpretation of the Lord Chancellor's guidance. Neither the guidance itself nor the LSC's interpretation of it draws any distinction between deaths before the Human Rights Act came into force and deaths after it came into force. He submits that those matters serve to distinguish the case from McKerr where, it is noted, Lord Nicholls said in paragraph 30 that the claimant was not asking the House 'to interpret the statutory provisions relating to coroners in a way which would make them compliant with the investigative requirements of article 2'.
31 There has been no argument before me as to the effect of s.3 of the Human Rights Act (to which only the briefest of references was made in Mr Gill's final written submissions). I am inclined to the view that, even if the guidance comes within the definition of "subordinate legislation" in s.21, so that under s.3 it must be read and given effect, so far as possible, in such a way as to be compatible with the Convention, it is no more open to the claimants to rely on s.3 than to rely on s.6 in relation to a death that occurred before the Act came into force, since in each case the result sought cannot be achieved unless, in relation to that death, article 2 has legal force in domestic law. This might give rise to an unsatisfactory state of affairs if the guidance had to be interpreted differently according to when the death took place. In truth, however, I do not think that that is a problem in this case. Although the claimants' case is presented in part in terms of an erroneous interpretation of the guidance, it is in substance a case about the application of the guidance rather than the meaning of the guidance. At the heart of the case is the LSC's approach towards the condition that 'the circumstances of the death appear to be such that funded representation is necessary to assist the Coroner to investigate the case effectively and establish the facts'. But, as explained later in this judgment, the claimants do not contend that article 2 requires the condition to be given a different meaning from that given to it by the LSC. What they are really contending is that the LSC adopted an unduly restrictive approach in the application of the condition to the circumstances of the present case. I therefore view this as a s.6 case rather than a s.3 case. As already indicated, however, I would reach the same conclusion concerning the temporal scope of article 2 even if it were viewed in part as a s.3 case.
32 Mr Gill advances a separate argument that because the LSC has itself stated that its interpretation of the guidance and its funding decision were in accordance with the Convention, the position can be tested by reference to the Convention irrespective of the question of its incorporation in domestic law: see R v. Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839, 867, where for particular reasons the House of Lords was prepared to consider an argument that the Secretary of State had misdirected himself on the Convention which he himself said he had taken into account. It is true that the LSC proceeded on the basis that the relevant test in the guidance arose out of the investigative obligation under article 2 and set out reasons why the case was not considered to fall within the ambit of article 2 and was in any event not one where funding would be required if the case did fall within the ambit of article. A problem with Mr Gill's submission, however, is that it is not enough for the claimants to show here that the LSC misdirected itself with regard to article 2. The whole case is directed towards the securing of funding for legal representation at the inquest. In order to obtain the favourable decision from the LSC which they seek – indeed, in order to obtain the mandatory order they seek - they have to show that article 2 requires funding to be provided. They cannot do that without relying on the article 2 obligation to investigate as having legal force under domestic law."
In Re Jordan's Application for Judicial Review [2003] NICA 54 (12 December 2003), the CA of NI held that the decision of the DPP in March 1995, refusing to give detailed reasons for his decisions in 1993 and again in February 1995 not to prosecute the police officer who killed the applicant's son, was not a 'continuing decision' meaning that the Human Rights Act 1998 applied to them.
21-04 On the territorial scope of the Convention, in Al Fayed, Petitioner, P905/03, 12 March 2004, Lord Drummond Young, sitting in the Outer House of the Court of Session (functionally equivalent to the High Court in England), dismissed a petition by Mr Mohamed Al Fayed for judicial review of a decision of the Lord Advocate to refuse to instruct a public inquiry into the death of Dodi Fayed. In his Opinion, the judge dealt with a number of points arising on Art 2 of the European Convention on Human Rights. The main point was that, as a matter of interpretation of the Convention itself, Art 2 cast no obligation on the United Kingdom to inquire into deaths outside the UK. If that is correct, any coroner's inquiry into such deaths need only comply with the ordinary common and statute law (excluding the HRA).
21-05 The scope in domestic law of the procedural obligation to inquire under art 2 is cut down by the decision of the House of Lords in Re McKerr [2004] UKHL 12, that the duty to investigate under art 2 did not arise in domestic law in respect of deaths before the coming into force of the Human Rights Act 1998, on 2 October 2000.
In R (Challender) v Legal Services Commission [2004] EWHC 925 (Admin), Richards J rejected the view that the decision in Re McKerr [2004] UKHL 12 was restricted in scope:
"29 Mr Gill submits that McKerr does not defeat the claimants' arguments. He points out first that the issue in McKerr was whether some further investigation should be held into a death that had occurred in 1982 and in respect of which there had already been a coroner's inquest, whereas the issue in the present case is whether, in the context of an acknowledged duty to carry out an inquest irrespective of the Human Rights Act, the LSC's decision to refuse funding and its interpretation of the Lord Chancellor's guidance violates the procedural obligation of article 2: the present case therefore concerns the link between an undisputed domestic law obligation to carry out an inquest and the need to make procedures at that inquest, which has yet to take place, article 2 compliant. In my view that is not a relevant point of distinction. The claimants' case still depends upon the procedural obligation under article 2 having legal force in domestic law in relation to the investigation of a death that occurred before the Human Rights Act came into force; whereas McKerr holds decisively that the obligation exists in domestic law only in relation to deaths that occurred after the Act came into force. For this court to hold, in relation to a death that occurred before the Act came into force, that the LSC had violated article 2 by refusing funding, or had interpreted the guidance in a way that violated article 2, would be to give the procedural obligation under article 2 a legal force which the House of Lords has held it does not have. It makes no difference that the LSC's funding powers and the coroner's duty to investigate exist under domestic law independently of article 2, or that the funding decision itself is made and the inquest is carried out after the Human Rights Act came into force. The article 2 obligation to investigate cannot be invoked as a basis for challenging the funding decision where, because of the timing of the death, the article 2 obligation simply does not arise under domestic law.
30 Mr Gill submits, as I understand it, that article 2 can still be relied upon because there is an issue concerning the interpretation of the Lord Chancellor's guidance. Neither the guidance itself nor the LSC's interpretation of it draws any distinction between deaths before the Human Rights Act came into force and deaths after it came into force. He submits that those matters serve to distinguish the case from McKerr where, it is noted, Lord Nicholls said in paragraph 30 that the claimant was not asking the House 'to interpret the statutory provisions relating to coroners in a way which would make them compliant with the investigative requirements of article 2'.
31 There has been no argument before me as to the effect of s.3 of the Human Rights Act (to which only the briefest of references was made in Mr Gill's final written submissions). I am inclined to the view that, even if the guidance comes within the definition of "subordinate legislation" in s.21, so that under s.3 it must be read and given effect, so far as possible, in such a way as to be compatible with the Convention, it is no more open to the claimants to rely on s.3 than to rely on s.6 in relation to a death that occurred before the Act came into force, since in each case the result sought cannot be achieved unless, in relation to that death, article 2 has legal force in domestic law. This might give rise to an unsatisfactory state of affairs if the guidance had to be interpreted differently according to when the death took place. In truth, however, I do not think that that is a problem in this case. Although the claimants' case is presented in part in terms of an erroneous interpretation of the guidance, it is in substance a case about the application of the guidance rather than the meaning of the guidance. At the heart of the case is the LSC's approach towards the condition that 'the circumstances of the death appear to be such that funded representation is necessary to assist the Coroner to investigate the case effectively and establish the facts'. But, as explained later in this judgment, the claimants do not contend that article 2 requires the condition to be given a different meaning from that given to it by the LSC. What they are really contending is that the LSC adopted an unduly restrictive approach in the application of the condition to the circumstances of the present case. I therefore view this as a s.6 case rather than a s.3 case. As already indicated, however, I would reach the same conclusion concerning the temporal scope of article 2 even if it were viewed in part as a s.3 case.
32 Mr Gill advances a separate argument that because the LSC has itself stated that its interpretation of the guidance and its funding decision were in accordance with the Convention, the position can be tested by reference to the Convention irrespective of the question of its incorporation in domestic law: see R v. Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839, 867, where for particular reasons the House of Lords was prepared to consider an argument that the Secretary of State had misdirected himself on the Convention which he himself said he had taken into account. It is true that the LSC proceeded on the basis that the relevant test in the guidance arose out of the investigative obligation under article 2 and set out reasons why the case was not considered to fall within the ambit of article 2 and was in any event not one where funding would be required if the case did fall within the ambit of article. A problem with Mr Gill's submission, however, is that it is not enough for the claimants to show here that the LSC misdirected itself with regard to article 2. The whole case is directed towards the securing of funding for legal representation at the inquest. In order to obtain the favourable decision from the LSC which they seek – indeed, in order to obtain the mandatory order they seek - they have to show that article 2 requires funding to be provided. They cannot do that without relying on the article 2 obligation to investigate as having legal force under domestic law."
21-05 In Vo v France, application no 53924/00, 8 July 2004, the ECtHR held that there was no breach of art 2 when through the negligence of a doctor employed in a state hospital the applicant's foetus was damaged and the pregnancy had to be terminated. The applicant could have brought a claim for damages but the claim was time-barred after four years. The court considered that the existence of this claim meant that French law satisfied the requirements of Art 2. However, the court declined to give a clear answer to the question whether the foetus was a person within art 2:
"85. Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (“personne” in the French text). As to the instant case, it considers it unnecessary to examine whether the abrupt end to the applicant’s pregnancy falls within the scope of Article 2, seeing that, even assuming that that provision was applicable, there was no failure on the part of the respondent State to comply with the requirements relating to the preservation of life in the public-health sphere. With regard to that issue, the Court has considered whether the legal protection afforded the applicant by France in respect of the loss of the unborn child she was carrying satisfied the procedural requirements inherent in Article 2 of the Convention.
86. In that connection, it observes that the unborn child’s lack of a clear legal status does not necessarily deprive it of all protection under French law. However, in the circumstances of the present case, the life of the foetus was intimately connected with that of the mother and could be protected through her, especially as there was no conflict between the rights of the mother and the father or of the unborn child and the parents, the loss of the foetus having been caused by the unintentional negligence of a third party.
87. In the aforementioned Boso v. Italy decision, the Court said that even supposing that the foetus might be considered to have rights protected by Article 2 of the Convention (see paragraph 79 above), Italian law on the voluntary termination of pregnancy struck a fair balance between the woman’s interests and the need to ensure protection of the unborn child. In the present case, the dispute concerns the involuntary killing of an unborn child against the mother’s wishes, causing her particular suffering. The interests of the mother and the child clearly coincided. The Court must therefore examine, from the standpoint of the effectiveness of existing remedies, the protection which the applicant was afforded in seeking to establish the liability of the doctor concerned for the loss of her child in utero and to obtain compensation for the abortion she had to undergo. The applicant argued that only a criminal remedy would have been capable of satisfying the requirements of Article 2 of the Convention. The Court does not share that view, for the following reasons.
88. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36).
89. Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above, § 49).
90. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004- ), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, “the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged” (see Calvelli and Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
91. In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury – which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part – she had the possibility of bringing an action for damages against the authorities on account of the doctor’s alleged negligence (see Kress v. France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see paragraph 16 above) in 1992 – before the action had become statute-barred – concerning the poor organisation of the hospital department in question and the serious negligence on the doctor’s part, which nonetheless, in the Court of Appeal’s opinion (see paragraph 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable."
n 32 The decision of the Court of Appeal in R (Middleton) v West Somerset Coroner was technically reversed by the House of Lords on 11 March 2004: [2004] UKHL 10. The House gave detailed guidance for the conduct in future of inquests into deaths in custody where art 2 is engaged.
21-06 See also R (Amin) v Home Secretary [2003] UKHL 51, where Lord Bingham said (at paras 30-31):
"30. A profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under articles 1 and 2 of the Convention. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. The state owes a particular duty to those involuntarily in its custody. As Anand J succinctly put it in Nilabati Behera v State of Orissa (1993) 2 SCC 746 at 767
'There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life'.
Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self-harm: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm.
31. The state's duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred: Menson v United Kingdom, page 13. It can fairly be described as procedural. But in any case where a death has occurred in custody it is not a minor or unimportant duty. In this country, as noted in paragraph 16 above, effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
And see also R (Davies) v Birmingham Deputy Coroner [2003] EWCA Civ 1739, where Brooke LJ said (at para 53):
"53. It follows from all this that as the law now stands:
(i) There must be a full and effective inquiry into the death at the coroner's inquest if this is realistically the only occasion on which the state will perform its procedural duty ..."
But bear in mind the decision of the House of Lords in Re McKerr [2004] UKHL 12, that the duty to investigate under art 2 did not arise in domestic law in respect of deaths before the coming into force of the Human Rights Act 1998, on 2 October 2000.
The decision of the Court of Appeal in R (Sacker) v West Yorkshire Coroner [2003] 3 All ER 278 was affirmed by the House of Lords: [2004] UKHL 11, 11 March 2004, though on different grounds.
21-06 In R (Burke) v General Medical Council, The Times, 6 August 2004, Munby J held that the GMC's published guidance, "Withholding and withdrawing life-prolonging treatments: Good practice in decision-making", available on the GMC's website, was in part incompatible with the ECHR Arts 2, 3 and 8. The GMC has sought permission to appeal.
21-06 n 44 As to the importance of legal aid in enabling the next of kin to be involved, see R (Khan) v Health Secretary [2003] EWCA Civ 1129 and Re Hemsworth(No 2) [2004] NIQB 26. Cf R (Challender) v legal Services Commission [2004] EWHC 925 (Admin).
21-07 n 49 The decision of the Court of Appeal in R (Middleton) v West Somerset Coroner was technically reversed by the House of Lords on 11 March 2004: [2004] UKHL 10. The House gave detailed guidance for the conduct in future of inquests into deaths in custody where art 2 is engaged.
21-08 On the scope of Art 6, and its non-applicability where no rights and obligations are being determined, see also Zakarov v White [2003] EWHC 2463 (Ch), 23 October 2003, Roderick Evans J (arrest of person on bench warrant on suspicion of having failed to comply with mandatory order of court; held that issue of bench warrant did not determine rights and obligations).
21-13 The decision by hospital doctors to overrule a mother's objections to their proposed treatment of her disabled son in the absence of court authorisation was held a breach of Art 8 by the ECtHR in Glass v UK, application no 61827/00, judgment 9 March 2004.
21-16 In Von Hannover v Germany, on 24 June 2004, the ECtHR held that German law had failed to give adequate protection to Princess Caroline of Monaco from media intrusion into her private life (in particular by photography), even when she was in public, going about her everyday affairs. The court laid stress on the fact that photography of such a person conveyed information about the subject, but did not contribute to public debate. The Court said:
"56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image.
57. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR 2001-VII). That also applies to the protection of a person’s picture against abuse by others (see Schüssel, cited above).
The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among many other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Botta, cited above, p. 427, § 33).
58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context the Court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).
In that connection the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, p. 29-30, § 59, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v. Estonia, no. 41205/98, § 59-63, ECHR 2001-I; and Prisma Press v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003).
59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.
60. In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52 et seq., ECHR 2000-I, and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual’s private life was not “justified by considerations of public concern” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterand’s former private doctor of a book containing revelations about the President’s state of health, the Court held that “the more time passed the more the public interest in President Mitterand’s two seven-year presidential terms prevailed over the requirements of the protection of his rights with regard to medical confidentiality” (see Plon (Société) v. France, no. 58148/00, 18 May 2004) and held that there had been a breach of Article 10."
These principles appear to support the right of witnesses not to be photographed even in public situations, such as attending court, where this would amount to a significant interference with private life.
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Last modified: Monday, 09-Aug-2004 08:53:17 BST by: Malcolm Bishop