International law, Sixth edition
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International Law MALCOLM N. SHAW
Young, James and Webster case
77 it was held that railway workers dismissed for refusing to join a trade union in the UK were entitled to compensa- tion. In the Brogan case, 78 the Court felt that periods of detention under anti-terrorist legislation in the UK before appearance before a judge or other judicial officer of at least four days violated the Convention. This 67 Judgment of 10 May 2001, para. 103. 68 See e.g. the Tanli case, Judgment of 10 April 2001. 69 The Vgt Verein gegen Tierfabriken case, Judgment of 28 June 2001, para. 78. 70 Series A, vol. 25, 1978; 58 ILR, p. 188. 71 See also Cyprus v. Turkey, where the Court held that the discriminatory treatment of the Greek Cypriots in the Turkish occupied north of Cyprus amounted to degrading treatment, Judgment of 10 May 2001, paras. 302–11; 120 ILR, p. 10. 72 Series A, vol. 324, 1995. 73 Series A, vol. 18, 1975; 57 ILR, p. 200. 74 See e.g. Handyside v. UK, Series A, vol. 24, 1981; 58 ILR, p. 150; the Dudgeon case, Series A, vol. 45, 1982; 67 ILR, p. 395 and the Sunday Times case, Series A, vol. 30, 1979; 58 ILR, p. 491. 75 See e.g. S. Trechsel, ‘Liberty and Security of Person’ in Macdonald et al., European System, p. 277; P. Van Dijk, ‘Access to Court’, ibid., p. 345; O. Jacot-Guillarmod, ‘Rights Related to Good Administration (Article 6)’, ibid., p. 381; Harris et al., Law of the European Convention, chapter 6; and Digest of Strasbourg Case-law relating to the European Convention on Human Rights, Strasbourg, 1984, vol. II (article 6). 76 Series A, vol. 31, 1979; 58 ILR, p. 561. 77 Series A, vol. 44, 1981; 62 ILR, p. 359. 78 Series A, vol. 145, 1988. 358 i n t e r nat i o na l l aw decision, however, prompted a notice of derogation under article 15 of the Convention by the UK government. 79 In the important Soering case, 80 the Court unanimously held that the extradition of a German national from the UK to the United States, where the applicant feared he would be sentenced to death on a charge of capital murder and be subjected to the ‘death row’ phenomenon, would con- stitute a breach of article 3 of the Convention prohibiting torture and inhuman and degrading treatment and punishment. Further, the Court has held that the deportation to Iran of a woman who in the circum- stances would have been at risk of punishment by stoning would violate article 3. 81 The Court has also emphasised that national security consid- erations had no application where article 3 violations were in question. 82 The Court has approached its task in a generally evolving way. For example, it has deduced from a number of substantive provisions that circumstances may arise in which a state would have a positive obligation to conduct an inquiry or effective official investigation. This would arise, for instance, where individuals have been killed as a result of the use of force by agents of the state, 83 or while in custody, 84 or ‘upon proof of an arguable claim that an individual, who was last seen in the custody of agents of the state, subsequently disappeared in a context which may be considered life-threatening’. 85 Similarly, the Court has held that the right to life under article 2 entails also the obligation upon states to take appro- priate steps for the safeguarding of life within the jurisdiction. 86 Linked with these provisions is article 13 which requires the state party to provide a remedy, effective in law and in practice, which is able both to deal with the substance of the applicant’s complaint and to provide an appropri- ate legal redress. 87 The jurisprudence of the Court with regard to Article 13 demonstrates that in an increasing number of cases that provision is 79 For the text, see e.g. 7 NQHR, 1989, p. 255. See also Brannigan and McBride v. UK, Series A, vol. 258-B, 1993. 80 Series A, vol. 161, 1989. See also Mamatkulov and Abdurasulovic v. Turkey, European Court of Human Rights, Judgment of 6 February 2003, paras. 66 ff. 81 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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