‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Sunday, 4 August 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - weeks 30 and 31

Blogpost written by Marc de Werd -  Courtesy Press Service of the European Court of Human Rights in Strasbourg

BIG COMPANIES AS 'VICTIMS'? Should big companies  ('legal persons') be protected under a treaty that protects fundamental human rights? In his recent and very interesting blog post Transforming the right to property, Laurens Lavrysen shares his unease with the right to property (of companies) as protected by the European Convention on Human Rights: "Basically, that is because I don’t really like the idea of a human right to property for a number of reasons." According to Lavrysen, a right to property takes the present distribution of wealth across society for granted, and does not question the mechanisms that distribute wealth among individuals. Those who have the most property obviously have a larger claim to property protection, disproportionately empowering the most advantaged vis-à-vis the least advantaged.

Lavrysen's discomfort is, at least for me and also for others,  understandable. The right to property is not embodied in the Convention, but was added in the First Protocol to the Convention, which entered into force in 1954. After WWII the ECHR was conceived as a warning mechanism against totalitarian tendencies in Europe. In the process of drafting the Convention the inclusion of the right to property had been the subject of much debate. The right to property was removed from the catalogue of rights to be secured by the member states, partly due to concerns by the then socialist British government that it might impede the government’s agenda of socializing property and strengthen obligations entailed by ownership.

The right to property is now enshrined in article 1 of Protocol 1 - connoisseurs refer to it as 'A1P1' - to the ECHR. It is now among the most frequently violated Convention rights, third only to the right to speedy trial and the right to fair trial.  Companies too are protected under the European Convention on human rights. Strasbourg Court's case law protecting companies properties rights involves roughly the following categories: property affected by legislative changes; confiscation; trademark disputes between companies; cessation of company’s activity; insolvency proceedings; tax assessment proceedings; revoking of a bank’s licence, and restitution to companies of erroneously paid sums. By the way, companies/legal persons are also entitled to the protection of other human rights, like freedom of speech (media/newspapers) and 6 (fair trial).

A roundup of last two weeks’ judgments (sorry for the delay, but I am on holiday, enjoying quite some heat and occasional refreshing showers in the beautiful surroundings of the Creuse region in France) affords us with good examples of both natural and legal 'persons' being protected by the Convention. The case of Lay Lay Company Limited v. Malta concerns a company's building permit. In Rousk v. Sweden the case concerns the forced sale of the applicant's home by the national authorities, to collect an enforceable tax debt. The Rousk case probably is the  kind of case Laurens Lavrysen has in mind when he asks the question how the right to property can be transformed in such a way "as to relate better to what we as human rights lawyers care about":
"what we should care about from a human rights perspective is not just money or the worth of goods, but how this affects the capability of individuals to effectively enjoy their human rights, both civil and political as social and economic ones.  The right to property should therefore be transformed in a purely instrumental right: property would then only be protected under the European Convention insofar as it can be linked to the enjoyment of another human right."
In Rousk the Court found a violation of Article 1 of Protocol No. 1 to the Convention as well as Article 8. Having regard to all of the circumstances, the Court concluded that the sale of the applicant’s property at public auction, and the ensuing eviction of the applicant from his home, for an enforceable debt that amounted to only SEK 6,721 on the day of the public auction, imposed an individual and excessive burden on the applicant:
“137.  In this respect, the Court has held that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (-). The decision-making process leading to the measures of interference must also have been fair. The Court will therefore attach particular weight to the existence of procedural safeguards.
138.  Thus, while the Court accepts that it will sometimes be necessary for the State to attach and sell property, including an individual’s home, in order to secure the payment of taxes due to the State through enforceable debts, it emphasises that these measures must be enforced in a manner which ensures that the individual’s right to his or her home is properly considered and protected.”
But can we really say – with Lavrysen's words in mind -  that property rights of Lay Lay or Agrokompleks (they will be discussed further below) can not be linked to the enjoyment of another 'real' human right, in some way comparable to the tragic case of Mr Rousk? I find that hard to say, thinking of very important social issues like employment, education and personal development of workers. Therefore I believe we should not focus on an artificial opposition between companies and people. The Convention system leaves the states in most cases enough margin of appreciation to distinct between the rights of legal and natural persons, avoiding that the most advantaged are disproportionately empowered vis-à-vis the least advantaged. The Rousk case also shows that the individual’s right to property is most of the time connected to other rights (like housing) which make their situation incomparable with a company’s right to property.

Which brings us to Lay Lay Company Limited v. Malta. Lay Lay ltd.  has its registered address in Fgura (Malta) and the case concerns the applicant company’s complaint about the authorities’ refusal to issue a valid building permit for land it had purchased in Ghaxaq (Malta) in 1984. It alleges in particular that, due to the authorities’ protracted and irregular procedures in refusing its application for a permit, it was denied the possibility of contesting the refusal in court. The Court found no violation of Article 1 of Protocol No. 1 (protection of property). The Court considers that given the applicant company’s inactivity and lack of diligence in pursuing its building permit application, it was not disproportionate for the authorities to reject the said application. Neither is the Court convinced that the applicant company suffered an excessive individual burden as a result. Given the specific circumstances of the case, the fact that other persons had been allowed to build in the area at the relevant time cannot be considered of relevance.

REFUGEES In M.A. v. Cyprus the case concerned a Syrian Kurd’s detention by Cypriot authorities and his intended deportation to Syria after an early morning police operation on 11 June 2010 removing him and other Kurds from Syria from an encampment outside government buildings in Nicosia in protest against the Cypriot Government’s asylum policy. It is one of 38 similar applications pending before the European Court of Human Rights. The Court concluded that although the applicant could no longer claim to be a victim under Articles 2 and 3 of the Convention as he had been granted refugee status and was no longer at risk of deportation to Syria, his complaint under Article 13 in conjunction with these provisions remained a live issue and was unaffected by the conclusion on the substantive complaints. It held that the applicant did not have an effective remedy with automatic suspensive effect to challenge his deportation. The applicant was not deported to Syria only because of an interim measure issued by the European Court under Rule 39 of its Rules of Court to the Cypriot Government indicating that he should not be removed until further notice.

Malta lost two immigration cases. In Aden Ahmed v. Malta the Court held for the first time that conditions in a Maltese immigration detention centre constituted degrading treatment in violation of Article 3 (prohibition of inhuman or degrading treatment). The case concerned a Somali national, Ms Ahmed, and her detention in Malta after entering the country irregularly, by boat, to seek asylum in February 2009. This is the first time the Court found a violation of Article 3 against Malta concerning immigration detention conditions. The Court was concerned about the conditions in which Ms Ahmed was detained in Lyster Barracks detention centre (Hal Far), notably the possible exposure of detainees to cold conditions, the lack of female staff in the detention centre, a complete lack of access to open air and exercise for periods of up to three months, an  inadequate diet, and the particular vulnerability of Ms Ahmed due to her fragile health and personal emotional circumstances. And also in Suso v. Malta the Court found that Malta needs to adopt new measures to improve the conditions of detained asylum seekers and allow them to obtain speedy review of the lawfulness of their detention.

PRESUMPTION OF INNOCENCE In the case of Ürfi Çetinkaya v. Turkey (French only)  the Court found a breach of the right to presumption of innocence in a pending investigation into drug trafficking. The case notably concerned the infringement by the authorities of Ürfi Çetinkaya’s right to be presumed innocent on account of a press release issued by the Gendarmerie General Command referring to him by name and describing him as an “international drug trafficker”. The Court criticised in particular the use of the term “international drug trafficker”, which had been used in an unqualified manner to describe Mr Çetinkaya in the press release and which had been reproduced without qualification by certain newspapers:
“146.  La Cour réitère que le droit à la liberté d’expression et de communication emporte celui de relater des procédures judiciaires et, partant, la possibilité pour les autorités de rendre publics des éléments objectifs tirés de la procédure. Elle n’aperçoit en l’espèce aucun élément permettant de dire que les responsables auraient tenu, lors des conférences de presse, des propos reflétant un préjugé de culpabilité à l’endroit du requérant.
147.  En ce qui concerne le communiqué de presse publié par le commandement de la gendarmerie le 5 décembre 2003, la Cour observe que celui-ci est paru le lendemain de la seconde saisie, effectuée à Rize, et moins d’un mois après la première saisie et l’arrestation du requérant. Le texte relate un certain nombre d’éléments factuels tels que les quantités de produits saisies, le nombre d’arrestations et le nombre de personnes qui ont été placées en détention. Tout en indiquant que l’instruction se poursuit, il précise que les autorités estiment que l’affaire a un lien avec la saisie réalisée le 6 novembre 2003 et avec « le trafiquant international de stupéfiants Urfi Çetinkaya ». S’agissant de ce dernier point, la Cour observe d’abord que le requérant n’avait, à cette date, jamais été condamné pour l’infraction de trafic de stupéfiants. Elle relève en second lieu qu’il s’agit précisément de l’infraction qui lui était reprochée dans le cadre de diverses procédures judiciaires dont celle concernant la saisie du 6 novembre 2003 évoquée dans le communiqué.
148.  La Cour estime que l’utilisation sans nuances ni réserves du qualificatif « trafiquant international de stupéfiants » au sujet du requérant était de nature à inciter le public à croire à la culpabilité de celui-ci et qu’elle préjugeait de l’appréciation des faits par les juges compétents, et ce au mépris du principe de la présomption d’innocence.
149.  Ce terme a été repris et diffusé tel quel par certains journaux qui ne l’ont pas assorti de nuance.
150. Le requérant a certes réclamé, à plusieurs reprises, l’insertion dans les journaux concernés d’un droit de réponse qui aurait précisé qu’il n’avait jamais été condamné par un tribunal pour trafic de stupéfiants et qui aurait rappelé le principe de la présomption d’innocence. Mais les tribunaux saisis ont rejeté l’ensemble de ces demandes.”
I am not really convinced by the Court’s reasoning. Its finding of a violation of Article 6 of the Convention is rather surprising since the Court does not conclude – and does not even implicate - that the criminal proceedings had indeed been unfair to the applicant in a sense that the Turkish judges had been (or even might have been) prejudiced in any way by the aforementioned publicity on his case. Not a word about it. But negative publicity in itself does not imply an effect on judges who are used to make up their own mind about a case, whatever the media write. In their partly dissenting opinion judges Sajó and Vučiniċ argue – in my opinion very understandably -  that the statement of the police authorities – though inappropriate - had not lead to a breach of the presumption of innocence. Don’t forget that even the applicant had not raised this issue before the national courts:
“La Cour attache de l’importance au fait que la déclaration était de nature à inciter le public à croire à la culpabilité du requérant. Toutefois, cet élément n’a pas eu en soi un impact sur le traitement de l’affaire de l’intéressé. De plus, celui-ci disposait des moyens juridiques de protéger sa réputation, et ses demandes ont été rejetées à l’issue de nombreuses procédures internes. Rien dans l’arrêt de la Cour n’indique que l’intéressé a même évoqué la question de la présomption d’innocence dans le cadre de la procédure pénale. Selon l’arrêt (paragraphe 136), le requérant soutenait que les journaux l’avaient présenté comme un criminel sur la base d’informations fournies par les autorités, et qu’à cet égard ses demandes de droit de réponse avaient été rejetées. Or ces demandes ont été examinées dans le cadre de procédures internes et la Cour n’a pas exprimé une quelconque insatisfaction devant ces procédures internes.”
LAWYER-CLIENT CONFIDENTIALITY In the cases of Khodorovskiy and Lebedev v. Russia the Court held that charges against two Russian business executives were brought in accordance with the law, but the hearing of their case was unfair and their placement in remote penal colonies unjustified. The cases concerned criminal proceedings which ended in a judgment of September 2005 by the Moscow City Court in which Mr Khodorkovskiy and Mr Lebedev, two former top-managers and major shareholders of a large industrial group, were found guilty of large-scale tax evasion and fraud. The domestic proceedings at the heart of the present case are commonly known in Russia as “the first trial of Khodorkovskiy and Lebedev”.

The Court found violations of Article 3 with regard to the humiliation of his being placed in a metal cage during court hearings on his case; Article 5 §§ 3 and 4 (right to liberty and security) concerning the length of Mr Lebedev’s detention on remand and the delayed examination of a detention order of December 2004 a violation of Article 6 §§ 1 and 3(c) and (d) as concerned breaches of the lawyer-client confidentiality and the unfair taking and examination of evidence by the trial court; a violation of Article 8 (right to respect for private and family life) on account of Mr Khodorkovskiy’s and Mr Lebedev’s transfer to penal colonies in Siberia and the Far North, several thousand kilometres away from Moscow and their families; a violation of Article 1 of Protocol No. 1 (protection of property) on account of the arbitrary way in which Mr Khodorkovskiy had been ordered to reimburse tax arrears owed by Yukos to the State following his conviction.

Lots of interesting issues to read in these two cases. But for the sake of a roundup blog post I will just cherry-pick in the judgment and confine myself to the lawyer-client confidentiality considerations of the Court since they touch upon a sensitive issue that is subject of debate in many jurisdictions. The applicants relied on Article 6 § 3 (c), which provides: “Everyone charged with a criminal offence has the following minimum rights: (-) (c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.The Court held in general (§§ 627-628):
“that respect for lawyer-client confidentiality is very important in the context of Article 6 §§ 1 and 3 (c) (-). An accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, “his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective” (-). Any interference with privileged material, and, a fortiori, the use of such material against the accused in the proceedings should be exceptional, be justified by a pressing need and will always be subjected to the strictest scrutiny by this Court (-).
The State may regulate the conditions in which a lawyer meets his detained client. First, “there are inherent time and place constraints on meetings between a detained person and his lawyer” (-). Second, there could be legitimate restrictions related to the security risks posed by the defendant. The existence of any “security risk” may be inferred from the nature of the accusations against him, by the detainee’s criminal profile, his behaviour during the proceedings, etc. Thus, the Court has tolerated certain restrictions imposed on lawyer-client contacts in cases of terrorism and organised crime (-).”
In the present case the Court found however (§  648)  that throughout the investigation and the trial the applicants suffered from unnecessary restrictions of their right to confidential communication with their lawyers, and that the secrecy of their communications was interfered with in a manner incompatible with Article 6 § 3 (c) of the Convention. The Russian authorities violated both the confidentiality of the lawyer-client contacts at the pre-trial stage as well as the lawyer-client contacts at the trial. The interference by the law-enforcement authorities with the secrecy of the applicants’ communications with their lawyers took various forms. The applicants complained that their confidential contacts with their lawyers had been seriously hindered. In the proceedings the applicants were assisted by a team of highly-qualified lawyers. However, the prison administration and later the judge insisted on checking all written exchanges between the applicants and their lawyers. On several occasions the lawyers, who were suspected of having breached the rules, were subjected to body-searches. In the courtroom the applicants were detained in an iron cage which separated them from the public and from their lawyers. Any exchange of written documents between the applicants and their lawyers was only possible if the presiding judge reviewed the documents beforehand. The applicant’s oral exchanges during the trial could be overheard by the convoy officers.
“647.  The Court reiterates that not every measure hindering communication between the defendant and his lawyer must necessarily lead to a violation to Article 6 § 3 (c). Thus, for example, in assessing limitations imposed on the defence in the case of Titarenko v. Ukraine (-), the Court applied a quantitative approach and held as follows (§ 92): “The security arrangements [i.e. placement of the accused in a metal cage] undeniably limited communication between the applicant and his lawyer during the hearing. These limitations did not, however, amount to a complete lack of communication between the applicant and his lawyer; the applicant did not demonstrate that it was impossible to request that the lawyer’s seat be brought closer to his “cage”, or that they had been denied an opportunity for private communication when necessary.
 (-) in the present case the applicants did not have “an opportunity for private communication” with their lawyers, due to the permanent presence of escort officers near the metal cage and the minimal distance the lawyers had to respect. The fact that the defence was able to request adjournments during the hearings is irrelevant: it appears that even during those adjournments the lawyers were unable to discuss the case with their clients anywhere but in the hearing room, i.e. in the close vicinity of the prison guards. The Court concludes that even though the applicants benefited from legal assistance by several lawyers, the secrecy of their exchanges, both oral and written, was seriously impaired during the hearings.”
HOW TO DEAL WITH REQUESTS FOR ADJOURNMENT OF A HEARING? Two interesting French (only) cases on procedures for law practitioners as well as for court officials. In Sfez v. France the Court found that the applicant, despite already being aware of his first lawyer’s shortcomings, did not take advantage of a ten-day period between the lawyer’s actual withdrawal from the (criminal) case and the date of the hearing in order to find new counsel, who could have applied for adjournment.
“32. Aux yeux de la Cour, le délai de dix jours entre le désistement de Me V. et la date d’audience était susceptible de permettre au requérant de désigner un nouveau conseil, lequel aurait pu solliciter de la cour d’appel le renvoi de l’affaire pour lui laisser le temps de la préparer. Or, il apparaît que le requérant n’a pas mis ce délai à profit à cette fin, et ce alors même qu’il avait déjà parfaitement conscience des carences de Me V. (-).”
If we were left by the Court with only formalities I would have told you that of course the Convention is only a minimum standard not preventing the national states to be quite a bit more lenient (as is the case in the Netherlands for example). But I don’t need to. Because the Court reassuringly does take into consideration the specific circumstances of this case. The applicant was at the time not detained, and did not bring forward any (relevant) argument why he had not been able to find new counsel in the ten-day period (§ 33). Bottom line: if he had things might (would) have gone different. But in this case the Court concluded that there had been no violation of Article 6 § 3 (c) (right to be assisted by a lawyer) of the Convention.

In the case of Mr and Mrs Rivière v. France, having observed that the Court of Appeal had not given reasons for refusing to grant their request for adjournment, the Court found that it was not therefore able to exercise its supervision of compliance with the Convention. It held therefore that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention in that case (§ 33) “la Cour ne peut s’assurer que la cour d’appel avait effectivement examiné la question de savoir si les excuses fournies par les requérants étaient valables. Dès lors, elle n’est pas en mesure d’exercer son contrôle sur le respect de la Convention et doit constater la violation des droits des requérants.”

DEMONSTRATIONS In the case of Izci v. Turkey the Court ruled, unanimously, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment/lack of effective investigation) and  a violation of Article 11 (freedom of assembly). The case concerned in particular a Turkish woman who complained that she had been attacked by the police following her participation in a peaceful demonstration to celebrate Women’s Day in Istanbul and that such police brutality in Turkey was tolerated and often went unpunished. The Court held that Turkey needs to adopt new measures to prevent the police from using disproportionate violence and unnecessary and excessive tear gas during peaceful demonstrations:
“63.  The Court reiterates that law-enforcement officers, such as the police or the gendarmerie, should not be left in a vacuum when performing their duties, whether in the context of a prepared operation or a spontaneous chase of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect (-).
Needless to say that in these days of heated political debate and demonstrations in Turkey this judgment comes as an important warning to the Turkish authorities.

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