Application to the European Court of Human Rights for Margaret Jaconelli

Govan Law Centre (GLC) today submitted an application to the European Court of Human Rights (ECrtHR) in Strasbourg for Mrs Margaret Jaconelli. 

The application seeks just satisfaction, an order to require the Scottish Government to ensure that Scots law on CPOs of dwelling-house (and eviction thereafter) is compliant with the European Convention of Human Rights, and a quashing of the CPO made against Mrs Jaconelli's home. 

GLC's Principal Solicitor's Mike Dailly, was required to enter through a small window of Mrs Jaconelli's barricaded home, in order to discuss her application to the ECrtHR, take her instructions and complete the necessary legal paperwork in order to lodge an application to the European Court.

The application to the ECrtHR argues that: the applicant, Mrs Jaconelli, was unlawfully deprived of her possessions as she did not obtain a fair trial as required by Article 6 of the ECHR in relation to the making of the Compulsory Purchase Order which deprived her of ownership of her property. Accordingly, Article 1 of the First Protocol and Article 6 have been violated.

The applicant had no equality of arms, she being unrepresented and there being no legal aid available. The applicant was unable to present a fair defence in proceedings which were highly technical. She did not receive a fair hearing in terms of Article 6. Reference is made to the cases of Steel and Morris v. UK (Application 68416/01); Ashingdane v. UK (Application 8225/78); Golder v. UK (Series A No.18 of 1975); and Airey v. Ireland (Application 6289/73).

The applicant’s right under Article 8 of the ECHR to respect for her private and family life and her home has been violated. The applicant relied on the decision of the UK Supreme Court in Manchester City Council v Pinnock, 2010 3 WLR 1441 for authority for the proposition that she was entitled to found upon Article 8 as a defence to the eviction action against her.

The case of Pinnock was authority (at paragraph 53) for the proposition that in response to an Article 8 defence the Council had to ‘plead’ and ‘adduce evidence’ to justify its interference. No examination of the disputed facts was permitted to take place by the court; reference is made to Connors v. UK (2004) 40 EHRR 189 at paragraphs 81-83 and 92; McCann v. UK 40 EHRR 189; Zehentner v. Austria (Application 2008/02) and Paulic v. Croatia (Application 3572/06).

Under reference to paragraph 92 of the European Court of Human Rights decision in Connors v. UK the applicant in the present case contends that the Scottish court procedure was insufficient to satisfy the requirements of Article 8 because Glasgow City Council was not required to establish any substantive justification for evicting the applicant. There was no opportunity for an examination of the facts in dispute between the parties and the applicant’s Article 8 rights have therefore been violated.

ECHR application following Walls v. Santander

An application to the European Court of Human Rights (ECHR) has been made following the decision in Walls v. Santander UK plc, a copy of the 15 page judgment is available here (opens as a PDF).

Part of the pursuer's objection to the bank's application to remit from the small claims court to the ordinary sheriff court centered on article 6(1) of the Human Rights Act 1998, and relevant caselaw from the ECHR.  The court was not persuaded on this head of objection, and section 37(3) of the Sheriff Courts (Scotland) Act 1971 prohibits any review of the sheriff's decision. 

Accordingly, the pursuer now seeks to bring proceedings against the United Kingdom under article 6(1) of the European Convention on Human Rights.  The Scottish Government has responsibility for access to civil justice in Scotland as a devolved matter in terms of the Scotland Act 1998.  It is hoped that the Cabinet Secretary for Justice will reconsider his refusal to look at a law reform solution to prevent a class of persons, such as the pursuer, being limited in their ability to determine their civil rights before the Scottish courts.