News / General

HUMAN RIGHTS - POST MORTEM

By SLAS Spokesperson

It is probably not central to the practice of most of our members to learn that the Court of Arches of Canterbury Cathedral on 14th October 2006 overruled a determination by the Chancellor of the Cathedral who, on receiving what was effectively an application for the standing up of a number of gravestones which had been laid flat, or at least had been ordered by the local Council to be laid flat, ruled that not only the gravestones concerned in the application but that all the gravestones in that part of the cemetery must be raised up for the reason that it would be racial discrimination to raise up the gravestones only of the Polish deceased.  However, this case demonstrates the potential error of the application of any general principle against discrimination and demonstrates the technical requirements of this aspect of ECHR.  In IN RE WELFORD ROAD CEMETRY, LEICESTER 14th October 2006 the Court of Arches ruled, firstly, that Article 14 of ECHR was not a free standing right but was a law which required technical engagement before the question of discrimination became relevant and that the Polish families were not a racial or ethnic group and that Article 14 was therefore not engaged.  The only other convention right that may have been relevant was Article 1 of the First Protocol which protects the right to peaceful enjoyment of possessions.  However, there was no question of any of the gravestones having been disposed of by the Council and thus depriving the owners of possession and therefore Article 1 was not engaged either.  Even if Article 1 had been engaged, there would have been no discrimination, since an order in respect of the Polish applicants alone would simply reflect the fact that they had raised the proceedings and would have had no bearing upon the rights of the non Polish deceased and their families – who might very well also have been Polish in any case.  Also, it would have been highly unusual for the Chancellor to have provided a remedy to someone who had not sought it.  The Court therefore set aside the Chancellor’s order and made a fresh order for the reinstatement and making safe of the Polish families’ gravestones with the costs of the work to be shared between the Council and the Polish families.  The Times 7th November 2006

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