Resolution CM/ ResDH (2011)288 [1]

Execution of the judgments of the European Court of Human Rights

O ’ Donoghue and others, Clift and Richard Anderson against the United Kingdom

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgments listed below, transmitted by the Court to the Committee once they had become final;

Case name (App. No.)

Judgment of

Final on

1O ’ Donoghue and others (34848/07)

14/12/2010

14/03/2011

2Clift (7205/07)

13/07/2010

22/11/2010

3Richard Anderson (19859/04)

9/02/2010

9/05/2010

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report for each case provided by the government (see appendices);

Having noted that the respondent state paid the a p plicant the just satisfaction, as provided in the judgments;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)288

Information about the measures to comply with the judgment in the case of

O ’ Donoghue and others against the United Kingdom

Execution of Judgments of the European Court of Human Rights

Action Report

O ’ Donoghue and Others v The United Kingdom (application no. 34848/07; judgment final on 14./03/2011) Information submitted by the United Kingdom Government on 22 July 2011

Case Summary

Case description:

The powers to operate the Certificate of Approval ( COA ) scheme were set out in the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 before the abolition of the scheme on 9 May 2011. The scheme required those subject to immigration control to have permission to marry from the Secretary of State before giving notice to marry to a registrar. Those marrying in the Anglican Church were exempt from the requirement.

The Applicants in O ’ Donoghue complained that the COA scheme violated their rights under Articles 8, 9, 12 and 13 of the Convention. They further complained of an infringement of their rights under Article 14, when read in conjunction with Articles 8, 9 and 12, on the grounds of ( i ) religion (the COA scheme would not have applied to them had they been willing or able to marry in the Church of England according to Anglican rites); (ii) the 2nd Applicant ’ s nationality; and (iii) their inability to pay the requisite fee.

The Court held that there had been a violation of the Applicants ’ ECHR rights under Article 12; Article14 read together with Article 12 and Article 12 read together with Article 9 and awarded just satisfaction to the applicants.

Individual Measures

Just satisfaction:

The just satisfaction award has been paid; evidence attached

Other individual measures:

The Government considers no further individual measures are required because the applicants have now been restored to the position they would have been in but for the violation of their rights. Just satisfaction has been paid which included the cost of the Certificate of Approval fee. The couple have also already been granted a certificate of approval giving them permission to marry.

General Measures

Publication:

The judgment has been published by the British and Irish Legal Information Institute (BAILII); All England Law Reporter; The Times Law Reports and the New Law Journal. See links and citations below:

- O ’ Donoghue and others v United Kingdom [2010] ECHR 2022 http://www.b a ilii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2010/2022.html&query=34848/07&method=boolean

- O ’ Donoghue and others v United Kingdom [2011] All ER (D) 46 (Jan)

http://lexisweb.co.uk/cases/2010/december/odonoghue-and-other s -v-united-kingdom

- The Times (Law Reports), 31 December 2011 UK violates freed o m to marry right

- New Law Journal, 21 January 2011 http://www.newlawjournal.co.uk/nlj/issuearticles/7449?page=1&_%24guest=t&_%24robot=t&_%24subscriber=t&_%24userid=robot&_%24email=robot%4 0 lexisnexis.com&_%24ipaddr=0.0.0.0&_%24acctid=ROBOT&_%24billgroupid=ROBOT& _ %24acctname=&_%24billgroupname=&_%24firstname=Robot&_%24lastname=User&_%24userdata=&_%24usertypes=0&_%24authserver=uk1.lexisnexis.com

Dissemination:

The Government considers it is unnecessary to further disseminate the judgment because the objective of dissemination is to inform affected bodies to enable them to take account of the judgment in future decision-making. As the Certificate of Approval scheme was abolished shortly after the European Court judgment, no practical purpose would be served by dissemination.

Other general measures:

The Government considers no further general measures are necessary because the UK Government abolished the Certificate of Approval scheme on 9 May 2011 by amending primary legislation using a remedial order under section 10 of the Human Rights Act 1998. This remedied any incompatibility of the ECHR identified in this case and first identified by the UK domestic courts in R ( Baiai ) v Secretary of State for the Home Departments [2009] 1 A.C. 287 (HL).

A copy of the final remedial order as approved by Parliament is at the link below.

http://www.legislation.gov.uk/uksi/201 1 /1158/made

The Government considers that all necessary measures have been taken and the case should be closed.

Appendix to Resolution CM/ ResDH (2011)288

Information about the measures to comply with the judgment in the case of

Clift against the United Kingdom

Execution of Judgments of the European Court of Human Rights

Action Report

Case of Clift v The United Kingdom (application no. 7205/07 ; judgment final on 22/11/2010

Information submitted by the United Kingdom Government on 25 July 2011

Case Summary

Case description:

The case concerned the unjustified discrimination in the conditions for allowing early release between prisoners serving fixed-term sentences of more than 15 years and those serving shorter sentences. Under the legislation applicable at the time, prisoners serving fixed-term sentences of imprisonment of 15 years or more were required to secure, in addition to a positive recommendation from the Parole Board, the approval of the Secretary of State for early release. However, prisoners serving fixed-term sentences of less than 15 years and those serving life sentences were entitled to early release upon the positive recommendation of the Parole Board only; no Secretary of State approval was required.

On 30 April 1994 the applicant was sentenced to eighteen years ’ imprisonment. He became eligible for release on parole on 13 March 2002. On 25 October 2002 the Secretary of State rejected the recommendation of the Parole Board to release the applicant. He was finally released on licence in March 2004

The Court held that there had been a violation of Article 5 in conjunction with 14.

Individual Measures

Just satisfaction:

The just satisfaction award has been paid; evidence previously supplied.

Other individual measures

Mr Clift is no longer in custody. He was released on parole on 10/03/04. Damages and costs have been awarded to him for the treatment he received as a result of the procedures of his earlier parole reviews that were found by the court to have been discriminatory. Therefore the Government considers that no further individual measures are required in this case.

General Measures

Publication:

The judgment has been published in the Times Law Reports on 21 July 2010 and on line in the BAILII legal website ([2010] 1106), Lexis Library, Human Rights Law Centre, HUDOC.

Dissemination:

The judgment has been included on a number of legal databases and sources. In light of the change in legislation, the Government considers further dissemination of the judgment unnecessary.

Other general measures:

The Government has changed the applicable legislation to remove the power of the Secretary of State to override a recommendation of the Parole Board for release of any prisoner. The relevant amendment to the legislation was made by section 145 of the Coroners and Justice Act 2009. This provision transferred the responsibility for release decisions, in the case of those prisoners serving 15 years or more who are subject to the release provisions of the Criminal Justice Act 1991, to the Parole Board. This provision and the following associated amendments were commenced with effect from 2 August 2010.

Section 145 – Transfer to Parole Board of functions under the Criminal Justice Act 1991

Section 177 – Consequential etc amendments and transitional saving provisions

Section 178 – Repeals

Para 43 of Schedule 22 – Transfer of functions to Parole Board

Part 5 of Schedule 23 – Miscellaneous Criminal Justice Provisions relevant to Section 145

The effect of the above provisions is that as of 2 August 2010, the Secretary of State no longer has the power to make parole release decisions in respect of 1991 Act prisoners serving 15 years or more. She retains such power in no other cases. Therefore the discrimination found in this case cannot happen again.

The following provide links to the Coroners and Justice Act 2009 and Explanatory Notes:

http://www.legislation.gov. u k/ u kpga/2009/25/contents

http://www.legislation.gov.uk/ukp g a/2009/25/notes/contents

The Government considers that all necessary measures have been taken and the case should be closed.

Appendix to Resolution CM/ ResDH (2011)288

Information about the measures to comply with the judgment in the case of

Richard Anderson cases against the United Kingdom

Execution of Judgments of the European Court of Human Rights

Action Report

Richard Anderson v United Kingdom (application no. 19859/04; judgment final on 9 May 2010)

Information submitted by the United Kingdom Government on 22 July 2011

Case Summary

Case description:

The case concerned the excessive length of civil proceedings from April 1997 to December 2003 before the Scottish Courts (6 years and months for 3 levels of jurisdiction) in violation of Article 6§1.

The European Court found that whilst the applicant bore some responsibility for the delay at the initial stage of the proceedings, there were periods of inactivity for which no satisfactory explanation had been given. In particular the European Court identified that the Inner House of the Court of Session did not meet its obligation to take an active role in the management of proceedings (§28).

Individual Measures

Just satisfaction:

The just satisfaction award has been paid; evidence previously supplied.

Other individual measures:

The Government considers no further individual measures are required because payment of just satisfaction in respect of non-pecuniary damage has been made, in terms of the Court ’ s finding that the Government was to pay the applicant, within three months from the date on which the judgment became final, the sum of EUR 1,500 in respect of non-pecuniary damage. As the Court dismissed the remainder of the applicant ’ s claim for just satisfaction, no further payment to the applicant is due.

Any violation in respect of the applicant has ceased, because the court proceedings in the Court of Session which were the subject of his complaint have concluded. In addition, the European Court held it was not necessary to examine the applicant ’ s complaint under Article 13 of the Convention in the particular circumstances of the instant case, and no other findings in respect of the applicant as an individual were made.

The government considers that no other individual measures appear necessary.

General Measures

Publication:

The judgment has been published in the following locations:

Case citations [2010] All ER (D) 93 (Feb) [2010] 7 E.G. 100 (C.S.) BAILII website - http://www.bailii.org/eu / cases/ECHR/2010/145.html Loaded onto Lawtel website

Journal articles/blog citations

Legal Action 2010, May, 20-25. ‘ Recent developments in housing law (May). ’

http://scottishlaw.blogspot.com/2010/ 0 2/eu-rules-court-of-session-failed-to.html (Scottish Law Reporter blog)

Dissemination:

The judgment has been disseminated to Michael Anderson, Legal Secretary to the Lord President, Court of Session, Edinburgh, who has made the judges and senior officials of the Court aware of the judgment; and to the Scottish Court Service, the independent statutory body responsible for providing the staff, buildings and technology to support Scotland ’ s courts, the work of the independent judiciary, the courts ’ Rules Councils and the Office of the Public Guardian.

Other general measures:

The IT function of the Scottish Court Service has implemented a new system whereby the courts administration can run a report to identify cases that have had no procedural action for a specific period of time. This will allow a decision to be made as to whether or not particular cases should be placed in front of a sheriff or judge to ascertain the present position and bring the case back on track, avoiding the delay which occurred in this case.

This is part of the implementation of better case management in terms of the Civil Courts Review in Scotland (“The Gill Review”: http://www.scotcourts.gov.uk/civilcourtsreview / index.asp ).

The Government considers that all necessary measures have now been taken and the case should be closed.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.