bringing a claim in domestic courts Flashcards
what are the four requirements for bringing a claim?
- 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
who is a victim?
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
what are the categories of applicant?
- 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
how must the applicant be affected by the alleged breach?
personally affected directly, indirectly or potentially
who is a direct victim?
a person who is directly affected by the act or omission of the public authority
who is an indirect victim?
a person is indirectly affected because they share a sufficiently close link and established personal tie to the direct victim
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’?
- 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
what are the examples where a sufficient link to the deceased has been established for indirect victim status?
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
what is a potential victim?
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
defendant must be a public authority - what is a public authority?
any person certain of whose functions are functions of a public nature
what did the case of Aston Cantlow Parochial Church Council v Wallbank [2003] identify?
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
what is the duty of a core public authority?
bound to comply with convention rights in everything they do whether the act is private or public in nature
what is the duty of a functional public authority?
bound to comply only when they are carrying out a public function
what is a factor often used to indicate that a function is not public in nature?
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
within what time frame must proceedings against a public authority be brought?
within one year of the date on which the act complained of took place - s7(5)(1)(a)
what happens when the conduct extends over a period of time?
the one-year limit starts from the conclusion of that course of conduct
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?
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
what is jurisdiction?
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
when can jurisdiction be extra-territorial?
- 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]
what is included under power or control is exercised over the person of the applicant? - ratione personae
- 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
what is included under control is actually exercised over the foreign territory in person? - ratione loci
military occupation of another contract state
military occupation of a non-contracting state
what is the state responsible for if the case falls within ratione personae?
for securing those rights that are relevant to the situation of the individual
what is the state responsible for if it falls within ratione loci?
the controlling state has responsibility to extend the entire rage of substantive rights set out in the convention
