jeudi 12 février 2015

Master 2 DI des Affaires - 2e plaquette de documents

Chers étudiants,

Vous trouverez la 2e plaquette de documents pour le cours de Law of Tort en cliquant ici

Merci de lire les arrêts et les articles. Nous aborderons les questions ensemble en cours, vous n'êtes donc pas tenus d'y répondre à ce stade.

Cordialement,

L.A.

mardi 10 février 2015

The Uk and the ECHR - An article by 3 final year students



THE UNITED KINGDOM AND THE EUROPEAN COURT OF HUMAN RIGHTS


Today we will talk about the hypothetical withdrawal of Britain from the European Court of Human Right (ECHR).
Indeed, in a "strategy paper" entitled Protecting human rights in the UK, published on 2 October 2014, the Conservative Party said that, if they win a majority in next May's General Election, they will ensure that: "The European Court of Human Rights is no longer binding over the UK Supreme Court” and that "The European Court of Human Rights is no longer able to order a change in UK law and becomes an advisory body only."
In his speech to the Conservative Party conference that took place on October 1st 2014, David Cameron said: "Of course, it's not just the European Union that needs sorting out - it's the European Court of Human Rights”.
The Conservative Party would like the UK to have a veto over decisions of the European Court of Human Rights in Strasbourg, the body responsible for enforcing the European Convention on Human Rights. It seems to be asking that the UK alone be accorded a veto over Court judgments: other Convention signatories, for example, Russia, would still be required to abide by all Court judgments.
The strategy paper added: "in the event that we are unable to reach that agreement [with the Council of Europe], the UK would be left with no alternative but to withdraw from the European Convention on Human Rights”.
On the face of it, the Conservative Party is now committed to the UK's withdrawal from the Convention since amending the Convention to accord the UK a veto over the European Court's judgments seems impossible.
In order to study what would happen if the UK withdrew from the European court of Human Rights, we will first see the ECHR and its relationship with the UK. Then we will study the major cases that acted as a turning point to the decision of the Conservatives and finally we will observe what would be the consequences of such a withdrawal.

I-      Britain and The European convention on human rights

The European convention of human rights is an international treaty aiming to protect human rights and fundamental freedoms in Europe. It was drafted in 1950 by the Council of Europe, a newly created institution. But this text entered into force in 1953. The ratification of the convention is a prerequisite for joining the organization.

At the beginning, at the aftermath of the Second World War,  this text has been thought to avoid serious human rights violation as it had been the case during the war. That’s the reason why it is inspired from the Universal declaration of human rights and aimed to achieve greater international unity by claiming granted equal rights for men and women. Moreover, it enforces traditions of civil liberties. The convention protects the right to life, freedom and security, respect for private and family life, freedom of expression, or thought, conscience and religion, vote in and stand for election, a fair trial in civil and criminal matters, property and peaceful enjoyment of possessions. It prohibits the death penalty, torture or inhuman or degrading treatment or punishment, slavery and forced labor, arbitrary and unlawful detention, discrimination in the enjoyment of the rights and freedoms secured by the convention, and deportation of a state’s own nationals or denying them entry and the collective deportation of foreigners.

This treaty also establishes the European court of human rights (ECHR). The ECHR was set up in 1959. It is composed of 47 judges elected for non-renewable term every nine years. The court provides the protection of fundamental civil and political rights. As an organ of the council of Europe, it is based in Strasbourg.
As a European citizen, you can file a claim in front of the European court of human rights. But several conditions have to be respected before applying to the court. In fact, the ECHR only hears cases about human rights violation, as defined in the text. It means that you can apply if you think one of your rights granted in the convention has been violated. But you cannot file a claim in front of the ECHR if you have not exhausted all local remedies. Then the court has to decide if your claim is admissible or not : was there an actual violation of your rights. If judges find there is no reason to apply, your case will be struck out.
Moreover, the court only hears the case if the defending state has accepted its jurisdiction.

As far as the United Kingdom is concerned, the Human rights act 1998 made the European convention of human rights part of domestic law.
In fact, the United Kingdom was one of the first member of the Council of Europe to ratify the convention in 1951. This can be explained by the fact that the country, as part of the winners of WW2, took part to the redaction of the text, hoping to bring peace in Europe.
Despite this attitude, United Kingdom took time to grant “individual petition”, which is the right for its’ citizens to take a case to Strasbourg.

In 2013, the court had decided on 1652 cases concerning the UK but 1633 were declared inadmissible or struck out.

Nowadays, the British government shows a kind of reluctance in front of the convention. In fact, in an article from the Guardian, we could read that Chris Grayling, the justice secretary, “says conservative government would withdraw if parliament failed to secure right to veto Strasbourg court rulings”. Such a withdraw could jeopardize UK membership.


II- The major cases that acted as a turning point to the decision of the Conservatives
First of all, the major conflict between the United Kingdom and the ECHR began with Hirst v. the United Kingdom case ruled in 2005 by the ECHR. On the occasion of it, the grand chamber of the court ruled unanimously that a blanket ban on British prisoners exercising the right to vote is contrary to the ECHR. The facts are the following ones. John Hirst was a prisoner who has served thirty five years in prison for manslaughter. He initiated proceedings against the government over the interdiction preventing prisoners from voting.
This ban is the result of section 3 of the Representation of the People Act of 1983. This act prohibits prisoners from voting during their incarceration in penal institution without taking into consideration the length of sentence, the gravity of their offences or their individual circumstances. We have to add that this restriction was extended to the European elections with the section 8 of the Parliamentary Election Act of 2002. Consequently, prisoners were not able to vote for the European elections of 2009. And the United Kingdom was convicted by the ECHR for this in August 2014.
To return to Hirst’s case, in 2001, Hirst brought a case to the High Court but the case was dismissed. So, the same year, he lodged an appeal to the European Court of Human Rights. He has waited three years before the chamber of the ECHR ruled that Hirst’s voting right was violated. Of course, the United Kingdom lodged an appeal to the grand chamber. On 6th October 2005, the court confirmed the ruling because she considered that the restriction of prisoner’s voting rights violated protocol 1, article 3 of the convention. This article required right to free elections.
Then, the Committee of Ministers was responsible to supervise execution of the judgment. But the committee has faced repeatedly opposition from the British Government and Parliament because they stand their grounds. Following this decision, the United Kingdom was given until 22nd November 2012 to repeal its blanket ban on prisoner voting. The UK failed to comply, resulting in a reprimand from the ECHR, but no sanctions. Moreover in 2011, the House of commons voted a motion reaffirming the interdiction to vote for all prisoners.
The position of the ECHR was confirmed in two cases: one against Austria in April 2010: Frodl case and one against Italy in May 2012: Scoppola case.
The United Kingdom was again convicted in 2011. It was the case Greens and Mt v. the UK. In 2008, two British nationals who were both serving a sentence, posted voter registration forms to the Electoral Registration Officer (ERO), using the address of the prison as their own. But they have faced a refusal justified by their prisoner statute. Applicants argued the ERO committed a fault by not respecting Hirst case law. The court anew ruled there is a breach of rights and regretted that during the last five years since Hirst judgment, no amending measures had been taken by the government.
     Today the situation is still the same despite the several convictions and the ECHR rekindles discussion over prisoners’ voting rights by passing more than thousands criminal complaints on to London. But, on 16th October 2013, the Supreme Court refused to grant righting vote to two prisoners.
     There are also some other cases at the roof of the animosity against the ECHR.
     In 2010, there was The Secretary of State for the Home Department v. Respondent case. It was the story of Mohammed Ibrahim, an Iraqi asylum seeker who killed a 12 years old girl. The Border Agency tried to deport him but an immigration tribunal dismissed the application with regard to ECHR rules. The ECHR ruled that Mohammed Ibrahim could not be expulsed because since his conviction for the accident , he has married an UK citizen, fathered two children and acquired two stepchildren. Consequently if he has been expulsed, it would have violated the article 8 of the convention which protects the right to family life. Of course Cameron and girl’s father were outraged.
     Then, in 2013, we have the case of Vinter and Others v. the United Kingdom in which the ECHR has upheld three applicant’s complaints that their imprisonment for life should be considered as inhuman and degrading treatments because they have no hope of release. Consequently the British law violated article 3 of the convention. In order to respect this article, the national law has to introduce possibility of release and possibility of review. But Cameron wants got round judgment by creating sentence of hundred years. He wants to create system alike American system. Indeed the ECHR case law would be respected because; possibility of review would be possible in the framework of temporal sentence.

III-  Consequences of the British withdrawal from the ECHR
If Britain withdrew from the ECHR, Labour’s 1998 Human Rights Act which is the domestic legislation which enshrines the international principles of the European Convention on Human Rights and obliges all British public institutions to abide by the ECHR would be scrapped to be replaced by a “British bill of rights and responsibilities” that would set out the application of human rights law in a more flexible way. The Tories’ strategy would seek to prevent the use of ECHR Article 8, which stipulates the right to a ‘family life’, by illegal immigrants in order to avoid their deportation. The new Bill will limit some individual rights in certain circumstances. For example, a foreign national who takes the life of another person will not be able to use a defense based on Article 8 to prevent the state deporting them after they have served their sentence.
The text of the original convention would be written into UK law and the European court's rulings would no longer be binding over the Supreme Court. ECHR would become an advisory body and its decisions would no longer be enforced without the consent of British Parliament. Actually, Parliament would be asked to vote every time the Strasbourg court judged that UK law was incompatible with the European Convention on Human Rights, and the judgment would be binding only if MPs agreed it should be enacted.
Britain should remain signed up to the European convention on human rights, the principles that guide the court. By doing so they avoid an immediate diplomatic crisis, but there is a clear threat of withdrawal if no agreement is reached with the Council of Europe. Britain would “be left with no alternative but to withdraw from” the convention, giving the six months’ notice required by article 58. The Head of the Council of Europe told the Financial times that “Ministers calling for Britain to abandon the European human rights framework are encouraging Russia in its illegal action in Crimea.
Membership of the Council of Europe is a requirement for EU member states so a withdrawal from the convention could jeopardize Britain’s membership of the EU. Indeed, Some lawyers say all EU member states will be automatically covered by the provisions of the Council of Europe once the EU has become a signatory to the European Convention on Human Rights under the terms of the Lisbon treaty so no longer being a signatory of the European convention on human rights would force the UK’s premature exit from the European Union. The Prime Minister has said he will seek to reform Britain's place in the EU, including on issues such as freedom of movement of migrants, before holding an in–out referendum in 2017.
Senior Conservatives believe that the threat to pull out of the human rights convention will be seen as further proof that Britain is prepared to leave the EU if Brussels is not prepared to offer major concessions over issues including immigration and welfare.
A withdrawal from the convention could also place Britain in breach of its international obligations in the 1998 Good Friday agreement, which helped to bring peace to Northern Ireland. The agreement, which was approved by referendums on both sides of the Irish border and lodged at the UN, said the two communities in Northern Ireland would be protected by safeguards that include “the European convention on human rights”.
This decision is seen as a move to reach out to UKIP voters. UK Conservative Party fears the prospect of the Eurosceptic United Kingdom Independence Party (UKIP) jeopardizing their chances of getting re-elected in 2015. This threat has become even more realistic as the UKIP have managed to win its first seat in the UK House of Commons. The Liberal Democrat Junior justice minister, Simon Hughes, declared that “the Conservatives don’t care about the rights of British citizens – they care about losing to UKIP. These plans make no sense: you can’t protect the human rights of Brits and pull out of the system that protects them” and their leader, Nick Clegg, has claimed “Trashing human rights basically… to cater for, or to go after, UKIP votes is a legally illiterate thing to do and is not in keeping with fine British tradition”.
To conclude, the withdrawal of ECHR by Britain would have terrible impact internationally speaking.
The purpose of human rights protection is clearly to constrain states from mistreating individuals.  In particular, the ECHR guarantees a fair trial, protects against torture or other inhuman or degrading treatment, prevents arbitrary detention and ensures freedom of speech and privacy. While a Eurosceptic Member of European Parliament called Daniel Hannan suggests that the UK could solve all those problems by itself, the fact is that it didn’t. Every individual who has won a case against the UK in the ECHR had to try first to obtain a remedy in the UK courts, but failed.
And although it is true that the UK does not breach the Convention as often as some other States, its continued participation in the system is valuable not only as regards protection of British citizens and residents, but as a contribution to supporting human rights protection across the rest of Europe and worldwide. The withdrawal of a large EU Member State from this sophisticated system for the protection of human rights would be bound to deal a significant blow to that system.
According to The President of the ECHR, Judge Dean Spielmann, it would even be a “political disaster”, the ECHR would lose international credibility and it would set a dangerous precedent which could lead to the collapse of unified human rights accords.


Caroline Rivoire, Alexandra Lecomte, Margot Leclavier.

lundi 9 février 2015

M2 Droit International des Affaires

Chers étudiants,

Pour télécharger la première plaquette à étudier avant le premier séminaire de Law of Tort, c'est ici

Merci de lire, étudier ces documents et de répondre aux questions posées à la fin de la plaquette.

dimanche 18 janvier 2015

Eléments de correction - Law of Tort exam January 2015


These are only the main points we expected you to understand AND explain

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Some of you forgot about the dear method that we had worked together in class. Please make sure you respect it in the future.

Please be careful about grammar mistakes. "Does B owed a duty of care to A?"... Come on...

Don't use the expression "in casu" instead of "in this case" as this isn't really done in English (exams)

Be clear when you explain your reasoning. Don't mix the facts / the law / the interpretation you make of the facts.


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CAS PRATIQUE 1

This was clearly an "omission" case study. Some of you chose to assess Carlos AND Bernard's liabilities separately. This was unnecessary as there is only one damage. Furthermore, if you're a good lawyer, you'll advise Adrian to sue the police on the ground of vicarious liability. Individual liability of each one of them is therefore not necessary. Here Bernard then Carlos were in charge, vicarious liability may be used.

We are looking at TORTS, not contract. We need a duty of care and a breach of that duty. We also need a damage.

- Does the police owe a duty of care to Adrian? (1) Was there a breach of that duty? (2)

(1) Omissions form part of the law of negligence. Negligence has been part of the law of torts since Donoghue v Stevenson.

As a general rule, the duties imposed by the law of negligence are duties not to cause injury to others; they are not duties actively to help others unless the law imposes so, as an exception.

Here the case of Barrett v Ministry of Defence (1995, CA) clearly applied. In Barrett, it was held that a duty was owed in relation to the officer’s failure to have someone stationed to watch the drunken man while he slept because by that point, responsibility for the man’s safety had been assumed by the officer concerned. In this case, as a general rule, individual responsibility (of the plaintiff) is taken into account only until the point when someone else intervenes. This case had been criticised for this also.

In our case, Carlos takes Adrian away for him to rest. He assumes responsibility at that moment. So the answer to the first question is yes.

(2) Adrian later tells him he feels better, 3 hours after and Carlos let him go home on his own. He then falls unconscious and hurts himself. Is there a breach of the duty of care? Here you had to discuss yes or no, depending on which arguments you could bring (3 hours of rest is long, but Adrian is a very young man, he just graduated... I would vote there IS a breach but you could argue otherwise).

You could also warn Adrian that his damages may be reduced on the defence of contributory negligence, like in the case of Barrett.

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CAS PRATIQUE 2

Some of you explored False Imprisonment. Why? This is wrong. False imprisonment is NOT about prison (in most cases it isn't). In the case of Iqbal v Prison Officers Association (2009), which some of you (wrongfully) quoted, it was about a strike in the prison which unfairly led the prisonner to stay in his cell all day (the case was dismissed anyway). Our case is completely different, it has nothing in common with the facts of Iqbal. 

For those of you who quoted R v Governor of Brockhill Prison (2000), again, this is a mistake. The plaintiff claimed she was falsely imprisoned as her prison sentence was miscalculated. Was it the case of our plaintiff here? No. 

So False Imprisonment was NOT an option. 

This case was again.... An omission case!

Here, again, , the duties imposed by the law of negligence are duties not to cause injury to others; they are not duties actively to help others... unless the defendant exercised a control over the plaintiff.

- Did the prison exercise a control over the plaintiff?

The psychological damage is linked to the suicide she committed, which was not prevented by the prison.

You could quote several case. In Reeves (1999, HL) it was held that the police’s duty to prisoners in custody extends to a positive duty to take reasonable steps to assess the suicide risk of all prisoners. 


Kirkham v Chief Constable of Greater Manchester [1990] had established that a duty of care was owed in respect of suicide attempts of prisoners known to be mentally ill.


In Orange v Chief Constable of West Yorkshire Police [2001], a man committed suicide by hanging himself with his belt from a grille on the door in a police cell after being arrested and detained for being drunk and disorderly. His widow claimed that the police had owed a duty to take away any means of suicide from him, such as his belt, and that they should have watched him more carefully. The Court of Appeal held that the duty from Reeves was only to take reasonable steps to assess whether a prisoner posed a suicide risk, and to act accordingly. As the police had no real reason to think that this particular prisoner would attempt suicide, the duty did not arise in this case.

This distinction was later approved by the European Court of Human Rights in Keenan v United Kingdom [2001].

In our case, the plaintiff WAS diagnosed with depression (you could argue whether or not this amounted to a mental illness), and the doctor clearly said that she posed "a suicide risk".

Therefore, the prison owed a duty to her, even though she was in a punitive cell. The doctrine of ex turpi causa does not apply as some of you argued... (This is a shocking statement to be honest) Otherwise none of the above cases would have succeeded.



For any questions, please email the teacher,



Lucile Abassade