bringing a claim in domestic courts

Question 1

what are the four requirements for bringing a claim?

Answer 1

• a person must have victim status
• defendant must be a public authority
• the claim must be brought in time
• measure complained of must have occurred within the jurisdiction of the UK

Question 2

who is a victim?

Answer 2

anyone who meets the criteria established under Article 34 ECHR by the ECtHR s7(7)
- fall within one of the categories of applicants mentioned under art 34 ECHR
- establish that they have been directly or indirectly affected by the alleged violation

Question 3

what are the categories of applicant?

Answer 3

• person
• group of individuals - all must be affected by the alleged breach in a similar way
• non-governmental organisations - incorporated or unincorporated

a governmental organisation is never capable of being a victim

Question 4

how must the applicant be affected by the alleged breach?

Answer 4

personally affected directly, indirectly or potentially

Question 5

who is a direct victim?

Answer 5

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

Question 6

who is an indirect victim?

Answer 6

a person is indirectly affected because they share a sufficiently close link and established personal tie to the direct victim

Question 7

what were the relevant factors concluded in Daniel v St George’s Healthcare NHS Trust and London Ambulance Service [2016] for assessing whether there is a sufficiently ‘close link’ or established ‘personal interest’?

Answer 7

• the nature of the legal/family relationship
• the nature of the personal ties
• the extent to which the alleged violations of the convention - affected them personally and caused them to suffer
• involvement in the proceedings arising out of the death

Question 8

what are the examples where a sufficient link to the deceased has been established for indirect victim status?

Answer 8

married partners - McCann and Others v United Kingdom
Unmarried partners - Velikova v Bulgaria
Parents - Giuliana and Gaggio v Italy
siblings - Adronicou and Constantinou v Cyprus
children - McKerr v United Kingdom
Nephews - Yasa v Turkey

Question 9

what is a potential victim?

Answer 9

in exceptional circumstances it is sufficient for the applicant to show only that they are potentially affected by the alleged breach
- the applicant must produce reasonable and convincing evidence of the likelihood of a violation affecting him or her personally

Question 10

defendant must be a public authority - what is a public authority?

Answer 10

any person certain of whose functions are functions of a public nature

Question 11

what did the case of Aston Cantlow Parochial Church Council v Wallbank [2003] identify?

Answer 11

two types of public authorities
core public authorities = a body that is governmental in nature and is an organ of the state. government departments, local authorities, police and the armed forces
functional public authorities = usually a private company that is carrying out public functions

Question 12

what is the duty of a core public authority?

Answer 12

bound to comply with convention rights in everything they do whether the act is private or public in nature

Question 13

what is the duty of a functional public authority?

Answer 13

bound to comply only when they are carrying out a public function

Question 14

what is a factor often used to indicate that a function is not public in nature?

Answer 14

where a private business is engaged in ordinary contractual terms to provide a service to the public, and it happens that one of the customers is a core public authority

Question 15

within what time frame must proceedings against a public authority be brought?

Answer 15

within one year of the date on which the act complained of took place - s7(5)(1)(a)

Question 16

what happens when the conduct extends over a period of time?

Answer 16

the one-year limit starts from the conclusion of that course of conduct

Question 17

what is the exception the proceedings needing to be started within one year of the date?
- Rabone v Pennine Care NHS Foundation Trust [2012] factors?

Answer 17

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

Rabone case factors:
- length and reasons for delay
- impact of the delay on the cogency of the evidence
- conduct of the public authority
- strength of the claim for a breach

Question 18

what is jurisdiction?

Answer 18

primarily territorial so an act that is within the territory of the UK is in the jurisdiction of the UK
but jurisdiction can be extra-territorial in exceptional circumstances

Question 19

when can jurisdiction be extra-territorial?

Answer 19

• power or control is exercised over the person of the applicant [ratione personae]
• control is actually exercised over the foreign territory in question [ratione loci]

Question 20

what is included under power or control is exercised over the person of the applicant? - ratione personae

Answer 20

• acts of diplomatic or consular agents
• acts on board a ship or aircraft
• exercise of public powers through consent
• state agents exercising force over a person

Question 21

what is included under control is actually exercised over the foreign territory in person? - ratione loci

Answer 21

military occupation of another contract state
military occupation of a non-contracting state

Question 22

what is the state responsible for if the case falls within ratione personae?

Answer 22

for securing those rights that are relevant to the situation of the individual

Question 23

what is the state responsible for if it falls within ratione loci?

Answer 23

the controlling state has responsibility to extend the entire rage of substantive rights set out in the convention