Judgments that can transform national laws

The European Court of Human Rights (ECHR or ECtHR) based in Strasbourg, France hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols.

However, an application can also be lodged by an individual, a group of individuals, or one or more of the other contracting states.

Once registered with the Court, the case is assigned to a judge rapporteur, who can make a final decision that the case is admissible.

As far as Britain is concerned, one particular case recently underlined the effectiveness of an EHCR judgment in modifying the law.

In early 2010 Liberty, an independent organization active in the defence of civil liberties won a landmark legal case before the European Court of Human Rights, which ruled that section 44 was unlawful.

In Gillian and Quinton v UK, the Court ruled that section 44 violates the right to respect for private life because the power is so broad it fails to provide safeguards against abuse.

Kevin Gillan and Pennie Quinton are both British nationals who live in London. During September 2003 they were stopped and searched by police on their way to a demonstration in East London.  A journalist, Ms Quinton was also prohibited by police from filming.

Section 44 and the Counter-Terror Review

In July 2010 the British Government announced that it was suspending the police’s power to stop and search an individual without suspicion under section 44.

The Government’s Review of Counter-Terrorism and Security Powers recognised that change was needed in this area to comply with the Gillan and Quintonjudgment, and that the broad framework of the legislative provision had led to valid concerns about misuse.

Accordingly the Review recommended that section 44 be repealed.

Fundamental rights and border checks in the European Union

Every year hundreds of millions of passengers arrive at international airports in the EU. At the border, all passengers undergo entry checks which must comply with fundamental rights. These checks are also an important opportunity to identify persons requiring protection.

However, there are strict guidelines that must be followed by border management authorities in order to comply with the relevant EU legislation regarding the safeguard of fundamental rights.

Border guards rely on various sources of intelligence, behavioural analysis, document control and past experience when selecting passengers for further checks. Particular attention is paid to those nationalities that uncommonly arrive via a certain flight, for example, a passenger from Namibia arriving via Bahrain.

If national intelligence centres have received information that a person of interest is arriving on a particular flight, officers will inspect those passengers in greater detail or issue an alert on that flight.

The European Union Agency for Fundamental Rights (FRA) regularly reports about the treatment of third-country national passengers during entry checks to the EU at international airports.

Since the ECHR first began handing down judgments in 1960, successive decisions have transformed the legal landscape of European nations.

Often rulings have not been immediately welcomed by the governments of the day. Sometimes they have been dismissed as inventing fresh rights.

Many, over the course of time, have come to be seen as inevitable milestones in the march of progress.

Beghal v UK

The conclusion to an old chapter, or the beginning of a new one?

The case concerns the power of police to stop and question travellers at ports and airports in Britain without the requirement for reasonable suspicion.

On 28 February 2019, the European Court of Human Rights gave its judgment in Beghal v United Kingdom, in which it unanimously held that there had been a violation of Sylvie Beghal’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights.

The applicant, Sylvie Beghal, is a French national living in Leicester, United Kingdom.

On 4 January 2011, she arrived at East Midlands Airport following a visit to her husband, Djamel Beghal, who is in prison in France for terrorism offences.

Upon arrival, she was stopped under the Schedule 7 of the UK Terrorism Act 2000, a piece of counter-terrorism legislation which gives British police and immigration officers the power to stop, search and question passengers at international points of border-crossing.

Such powers are to be exercised for the purpose of determining whether the person “appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism” – and can be exercised without any suspicion of involvement of terrorism.

If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.

After being stopped, Sylvie Beghal was taken to an interrogation room and given the opportunity to call a lawyer. She and her luggage were searched.

She was told that she was not under arrest, but would be questioned under Section 7. She told the officers that she would only answer questions in the presence of her lawyer, but the officers started the examination before the arrival of the lawyer a few hours later.

She was also asked a number of questions about her family, her financial circumstances and her recent visit to France.

She refused to answer most of those questions and was later charged with wilfully failing to comply with a duty under Schedule 7.

Legal arguments: was the interference ‘in accordance with the law’?

The fact that there had been an interference with Ms Beghal’s right to respect for private life was not contested by the UK Government. The question, therefore, was whether such an interference was “in accordance with the law”.

The applicant argued that it was not in accordance in the law, because the powers under Schedule 7 were not sufficiently circumscribed and did not provide adequate safeguards against abuse.

Taking into account those insufficient safeguards, considered together with the absence of any requirement of “reasonable suspicion”, the Court found that at the time the applicant had been stopped the Schedule 7 powers had not been “in accordance with the law”.

It followed that there had been a violation of Article 8 of the Convention.

The Court, however, found that the applicant had neither been arrested nor charged with any criminal offence. The mere fact that she had been selected for examination could not be understood as meaning that she had been suspected of involvement in any criminal offence.

The Court therefore considered that the applicant’s examination under the Schedule 7 scheme could not engage Article 6 of the Convention and rejected that part of her complaint as inadmissible.

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for non- pecuniary damage sustained by the applicant.

It awarded 25,000 euros in respect of costs and expenses, to be paid to the applicant’s lawyer.

In this and countless other cases, no one could argue that the impact of Strasbourg’s case law has been insignificant.