More Protection for Rights in the Cayman Islands

Published 7th September 2006, 12:57pm

The right of the individual to petition to the European Court of Human Rights has been officially extended to the Cayman Islands. This extension means individuals considering themselves to have been the victim of a violation of the rights and guarantees set out in the European Convention on Human Rights or those Protocols that have also been extended, may lodge an application with the Court.

The Chairman of the Cayman Islands Human Rights Committee (HRC), Hon. Alden McLaughlin, who was instrumental in facilitating this development, welcomed the extension of the right of the individual to petition to the Court, saying, “This is an important step for human rights in the Cayman Islands as it introduces an alternative avenue for resolution, which is independent of our local system. In doing so, it also demonstrates the Cayman Islands’ commitment to ensuring that human rights locally are protected by internationally recognised conventions.”

The HRC advises that applications must relate to one of the rights set out in the European Convention on Human Rights. Alleged violations may cover a wide range of issues, such as: torture and ill-treatment of prisoners; lawfulness of detention; shortcomings in civil or criminal trials; discrimination in the exercise of a Convention right; parental rights; respect for private life, family life, the home and correspondence; restrictions on expressing an opinion or on imparting or receiving information; freedom to take part in an assembly or demonstration; expulsion and extradition; confiscation of property; and expropriation.

Applications must pertain to acts or omissions of the Cayman Islands Government and not to complaints against individuals or private institutions, such as commercial companies, although a legal entity such as a company or association, as well as a private individual, may be an applicant. Cases brought would be against the United Kingdom, as the State that is party to the Convention.

Before an individual is able to petition the Court, all avenues for domestic remedy must have been exhausted. In the Cayman Islands, this will usually mean an application to the appropriate court, followed by an appeal, and where applicable, even a further appeal to the Privy Council as the highest court of appeal. Applicants have six months from the date of the final decision at domestic level (generally speaking, the judgment of the highest court) to lodge an application with the European Court of Human Rights.

The European Court of Human Rights is an international court based in Strasbourg. One judge represents each of the member States of the Council of Europe, which have ratified the Convention for the Protection of Human Rights and Fundamental Freedom. This number is currently forty-five.

The Court’s judges sit in their individual capacity and do not represent any State. Applicants do not need to be a national of one of these States, but the alleged violation must have been committed by one of those States within its “jurisdiction”, which usually means within its territory.

Applications to the European Court of Human Rights can however, be time-consuming and expensive. This underscores the importance of having some form of local remedy. Vaughan Carter, Deputy Chairman of the HRC explains, “A human rights chapter in a new constitution would provide a more immediate remedy and the HRC is eager to see this enshrined alongside the right of individual petition.” Mr. Carter added, “In the meantime, the HRC seeks to provide a local outlet for complaints, although the HRC is not a legal body and cannot therefore enforce its views. It can however, advocate for change, and this can be a powerful influence.” Petitioning the HRC does not preclude later petition to the European Court of Human Rights, and nor is the applicant required to have petitioned the HRC in advance of application to the Court.

Local Attorney and HRC member, James Austin-Smith, also emphasised that whilst this right is primarily an international remedy it can to some extent, improve the protection of rights in the Cayman Islands. He said, “Since the Minister announced the right of individual petition, I have been using it in court to bolster my arguments.”

The HRC has published a comprehensive document on its website, explaining the details of the right of the individual to petition to the European Court. This document includes information about the procedure for the submission and processing of applications, and is supported by links to other relevant websites. The HRC is eagerly encouraging members of the public to read the information available online, by visiting the HRC website at www.humanrights.gov.ky.

For further information contact: Human Rights Committee