London, 23 December 2010
On 14 December 2010, the European Court of Human Rights issued judgments in three cases which involved Article 14 claims – O’Donoghue v United Kingdom (application no. 34848/07), Milanović v Serbia (application no. 44614/07) and Mizigárová v Slovakia (application no. 74832/01). In two of these cases, the Court found violations of Article 14 in conjunction with other articles of the European Convention on Human Rights (Milanović and O’Donoghue) but in the third (Mizigárová), it found there to have been no violation of Article 14 in conjunction with Article 2.
In O’Donoghue v United Kingdom, the Court considered whether the Certificate of Approval scheme in the UK, which requires those subject to immigration control to obtain a certificate from the Home Office before they are permitted to get married, is consistent with the Convention. Prior to 2009, this scheme required the payment of a £295 fee, and at no time has the scheme ever applied to individuals getting married in the Church of England. The applicants claimed that they were prevented from getting married for two years, firstly because Mr Iwu, a Nigerian national with discretionary leave to remain in the UK did not meet the requirements of the scheme until 2007, and then because they could not afford to pay the £295 fee.
The Court found (i) a violation of Article 12, on the basis that even though the imposition of reasonable conditions on a foreign national’s ability to marry would not be a violation of Article 12, the UK scheme did violate Article 12 as the periods of time involved in the process and the fee charged were not reasonable; (ii) a violation of Article 14 in conjunction with Article 12, given the less favourable treatment of those not willing and able to marry in the Church of England; and (iii) a violation of Article 14 in conjunction with Article 9, given the difference in treatment of those not willing and able to marry in the Church of England.
In Milanović v Serbia, the Court considered whether the Serbian authorities had violated the Article 3 rights of the applicant, a leading member of the Hare Krishna community in Serbia, through failing to investigate adequately a series of attacks by unknown assailants who the applicant believed to be motivated by religious hatred.
The Court found there to be a violation of Article 3, on the basis that the failure of the authorities to identify and prosecute the applicant’s attackers demonstrated that the investigation had been inadequate. The Court considered that the response of the Serbian police to the applicant’s complaints “amounted to little more than a pro forma investigation” and the fact that the ineffective investigation was accompanied by comments which highlighted the prejudices of the police towards the applicant’s religious beliefs was sufficient for the Court to make a finding that Article 14 (in conjunction with Article 3) had also been violated.
In Mizigárová v Slovakia, the Court addressed the complaint of the applicant that the Slovakian authorities had violated their obligations under Article 2, both alone and in conjunction with Article 14, through (i) allowing her husband, Mr. Šarišský, a Romani man, to be shot during an interrogation in police custody; (ii) failing to investigate the death of her husband in an adequate manner; and (iii) failing to investigate the possible racist motive for her husband’s death. The Court found that there had been a violation of Article 2 in substantive terms, given that the Slovakian authorities failed to prevent the death of Mr. Šarišský in police custody, and in procedural terms, given that the investigation into his death was neither independent nor sufficient.
The Court did not, however, find that there had been a violation of the substantive element of Article 14 in conjunction with Article 2 on the basis that, irrespective of the evidence before them of widespread police abuse of Roma in Slovakia, there was insufficient evidence to demonstrate racial motivation in this particular case. Further, the Court found that the failure of the authorities to investigate the potential racial motivation did not violate the procedural aspect of Article 14 taken in conjunction with Article 2 on the basis that the insufficient evidence of such motivation justified the failure to investigate it.
In a notable partially dissenting judgment, Judge David Thόr Björgvinsson argued that the objective evidence before the Court was sufficient to place an obligation upon the authorities to conduct an investigation into whether racist motives were behind Mr. Šarišský’s death and that, as such, there had been a violation of the procedural aspect of Article 14.
To read a summary of O’Donoghue v United Kingdom, click here.
To read a summary of Milanović v Serbia, click here.
To read a summary of Mizigárová v Slovakia, click here.
