Bringing a claim

Question 1

What are the 4 procedural requirements for bringing a claim

Answer 1

1. Is the Applicant a victim?
2. Is the defendant a public authority?
3. Is the claim in time?
4. Did the act fall within the jurisdiction of the State?

Question 2

What does s7(1) tell us about victim status?

Answer 2

Only victims have the right to bring proceedings against a public authority or rely on Convention rights

Question 3

What are the requirements for victim status?

Answer 3

1. Fall within one of the categories of applicants mentioned in Art 34 ECHR
2. Establish that they have been directly or indirectly affected by the violation

Question 4

What are the categories for applicants mentioned under Art 34 ECHR?

Answer 4

They have to be; A person living in the UK, a group of individuals, or a non-governmental organisation

Question 5

Whats a direct victim?

Answer 5

A person is directly affected by the act or omission of the public authority

Question 6

What is an indirect victim?

Answer 6

A person who is affected due to a sufficiently close link and established personal tie to the direct victim

Question 7

What is the main case and relevant factors for indirect victims?

Answer 7

Daniel v St Georges Healthcare NHS Trust and London Ambulance Service [2016]

Nature of the legal/family relationship
Nature of the personal ties
The extent to which the alleged violations of the Convention affected them personally and caused them to suffer
The involvement in the proceedings arising out of the death

Question 8

What are some other examples of indirect victims?

Answer 8

Married and unmarried partners, Parents, Siblings, Children, Nieces and Nephews etc.

Question 9

What is a potential victim?

Answer 9

A potential victim is someone who has to show only that they are potentially affected by the alleged breach.
They must produce reasonable and convincing evidence of the likelihood of a violation affecting him or her personally.

Question 10

What are the two types of public authority? and what is the relevant provision?

Answer 10

Core and Functional
s6 HRA 1998

Question 11

What is a public authority?

Answer 11

A public authority is any person certain of whose functions are functions of a public nature

Question 12

What is the key case setting out public authority?

Answer 12

Aston Cantlow Parochial Church Council v Wallbank [2003]

Question 13

What is a core public authority? Examples?

Answer 13

A body that is governmental in nature and is an organ of the state.
Gov departments, Local Authorities, Police, Armed Forces etc.

Question 14

What is a functional public authority? Examples?

Answer 14

It is only a public authority by virtue of the fact that it is performing a public function.
Charities, water companies, British Gas, Network Rail etc.

Question 15

What is the time limit for bringing a claim in domestic court?

Answer 15

It has to be within 1 year on which the act complained took place. If it extends over a period of time it starts from the conclusion of that course of conduct

Question 16

What is the exception of the time rule? And which section is it set out in?

Answer 16

The period can be extended where it is considered equitable having regard to all the circumstances.
s7(5)(1)(b)

Question 17

What is the requirements for the exception and which case set them out?

Answer 17

Rabone v Pennine Care NHS Foundation Trust [2012]
1. Length of and reasons for delay
2. Impact of the delay on the cogency of evidence
3. Conduct of the public authority
4. Strength of the claim for a breach

Question 18

What is the territorial principle regarding jurisdiction?

Answer 18

An act that is within the territory of the UK is in the jurisdiction of the UK
Jurisdiction is primarily territorial

Question 19

What are the exceptions to the territorial principle?

Answer 19

States may be held responsible for acts of their authorities performed, or producing effects, outside their own territory when;
a. Power or control is exercised over the person of the applicant- ratione personae
b. Control actually exercised over the foreign territory in person- ratione loci

Question 20

What are some topics and cases for ratione personae?

Answer 20

Acts of diplomatic or consular agents- X v UK
Acts on board a ship/aircraft- Hirsi Jamaa and Others v Italy
Exercise of public powers through consent- X and Y v Switzerland
State agents exercising force over a person- Al- Saadoon and Mufdhi v the UK

Question 21

What are some examples and cases for ratione loci?

Answer 21

Military occupation of another contracting State- Cyprus v Türkiye
Military occupation of a non-contracting State- Ilaşcu v Moldova and Russia [2004]

Question 22

What is the difference between personae and loci?

Answer 22

If the case falls within ratione personae, then the State is responsible for securing those rights that are relevant to the situation of the individual
If it falls within ratione loci, the controlling State has responsibility to extend the entire range of substantive rights set out in the Convention

Question 23

What is the main case for protection of armed forces

Answer 23

Al-Skeini v UK [2011]