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

Thursday, 5 February 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 6

Whole life orders under UK law open to review and thus compatible with European Convention on Human Rights - case of Hutchinson v. the United Kingdom - no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention - The case concerned the complaint of a man serving a whole life sentence for murder that his sentence amounted to inhuman and degrading treatment as he had no hope of release. In a previous judgment, in the case of Vinter and Others v. the United Kingdom, of 9 July 2013, the ECtHR had found that the domestic law concerning the Justice Secretary’s power to release a whole life prisoner was unclear. However, in its judgment in R v. Newell; R v. McLoughlin, of 18 February 2014 the Court of Appeal had explicitly addressed those doubts and held that the Secretary of State for Justice was obliged under national law to release a person detained on a whole life order where “exceptional grounds” for release could be shown to exist, and that this power of release was reviewable by the national courts. Having regard to this clarification, in today’s judgment, the ECtHR concluded that whole life orders were open to review under national law and therefore compatible with Article 3 of the Convention.

I voted against the conclusion of the majority that the applicant’s complaints are admissible in so far as they concern the compatibility of whole life sentences as such with Article 3 of the Convention. To the extent that these complaints concern the availability of de jure and de facto possibilities for release, their admissibility might be questionable in so far as it is unclear whether the applicant ever availed himself of the opportunity to apply to the Secretary of State for Justice in order to test the manner in which the latter would exercise his power to assess whether any exceptional circumstances justified the applicant’s release. The applicant was entitled to do so at any time after 16 May 2008, when Tugendhat J found it “right that the applicant should remain in prison for the rest of his life by way of punishment” and ordered “that the early release provisions are not to apply to [him]”.
It should be noted that Mr Hutchinson’s application (no. 57592/08) was registered (one and two years respectively) earlier than those in the cases of Vinter and Others (nos. 66069/09, 130/10 and 3896/10) which were examined by the Grand Chamber of this Court in 2013. To the extent that the majority in the present case considered the applicant’s complaints admissible and identical to the ones in Vinter, I find no reasons to disagree with the observation of the respondent Government of 14 January 2014 that “the principles of the judgment of the Grand Chamber in this case appear on their face to apply to this case” as well.
The reasoning of the majority in the present case is based on the premise that the Grand Chamber erred in its understanding of the domestic law as expressed in the case of Vinter and Others in 2013, and also on the fact that, since “it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation” (see paragraph 24 of the judgment), they were prepared to accept that the correct interpretation of the domestic law was provided in the post-Vinter judgment delivered by the special composition of the Court of Appeal on 18 February 2014 in the case of R v. Newell; R v. McLoughlin [2014] EWCA Crim 188. In that judgment, the Court of Appeal disagreed with the Grand Chamber’s views on the clarity and certainty of the domestic law as first set out in R v. Bieber [2009], and reaffirmed that this interpretation was sufficiently clear and certain. Assuming that this is so, I fail to see the bearing of this progressive development of the law on the applicant’s situation a year earlier, in 2008, when his complaints were submitted to the Court, or at the time of their examination by the Court in 2015.
Unlike in the unanimous judgment of the same Section in the case of Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, ECHR 2014), the majority in the present case failed to express any view as to whether, how and at what point the interpretation of the domestic law established in Bieber [2009] and R v. Newell; R v. McLoughlin [2014] changed, ceased to apply or made the applicant’s situation more compatible with the principles laid down by the Grand Chamber in examining the situation of the applicants in Vinter.
The issue in the case of Mr Hutchinson is not whether the Court ( see paragraph 25) “must accept the national court’s interpretation of the domestic law” as clarified in the process of “progressive development of the law through [the] judicial interpretation” (paragraph 24) provided by the Court of Appeal after Vinter as being the correct one, but whether or not in 2008 the applicant was in fact “entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought” as required by the principles established in Vinter (§ 122). These principles were not in themselves contested either by the 2014 judgment of the Court of Appeal or by the representative of the respondent Government in the present case.
I do not deem myself competent to determine whether the Court of Appeal expressed an ex tunc trust or an ex nunc hope that, even though to date the Secretary of State for Justice has not amended the content of the Lifers Manual after Vinter, he was, is and always will be “bound to exercise his power ... in a manner compatible with Article 3” (see paragraph 23). I have no doubt that the Grand Chamber was informed as to the scope of his discretion and the manner of its exercise in reaching their conclusions in Vinter. In this regard, and in so far as the Court of Appeal’s part in the admirable post-Vinter judicial dialogue said “Repent!”, I wonder whom it meant?
Court confirms: payment of compensation to torture victim does not constitute a sufficient remedy without effective investigation - violation of Article 3 (prohibition of torture) of the Convention - The case of Razzakov v. Russia concerned the complaint of a man suspected of having committed an offence that he was tortured in police custody to make him confess to a murder. The Court found that Mr Razzakov’s ill-treatment by the police had amounted to torture. Given that the authorities had failed to conduct an effective investigation into his ill-treatment and to prosecute those responsible, Mr Razzakov could still claim to be a victim of a violation of Article 3, even though he had been awarded compensation.

Somali national seeking to avoid return from the Netherlands to Italy: application inadmissible - In its decision in the case of A.M.E. v. the Netherlands the European Court of Human Rights unanimously declared the application inadmissible. The case concerned a Somali asylum-seeker’s claim that, if transferred to Italy, he would be subjected to harrowing living conditions. The Court noted in particular that unlike the applicants in the case of Tarakhel v. Switzerlandi who were a family with six minor children, the applicant was an able young man with no dependents and that the current situation in Italy for asylum seekers could in no way be compared to the situation in Greece at the time of the M.S.S. v. Belgium and Greece judgmentii. The structure and overall situation of the reception arrangements in Italy could not therefore in themselves act as a bar to all removals of asylum seekers to that country.
"35.  The Court reiterates that the current situation in Italy for asylum seekers can in no way be compared to the situation in Greece at the time of the M.S.S. v. Belgium and Greece judgment, cited above, that the structure and overall situation of the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum seekers to that country (see Tarakhel, cited above, §§ 114-115).
36.  The Court therefore finds, bearing in mind how he was treated by the Italian authorities after his arrival in Italy, that the applicant has not established that his future prospects, if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3. The Court has found no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy for asylum seekers or that, in case of difficulties, the Italian authorities would not respond in an appropriate manner.

37.  It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore inadmissible pursuant to Article 35 § 4."
Proceedings following the reopening of terminated civil proceedings after ECHR found a violation of the Convention were unfair - Bochan v.Ukraine (No. 2) - violation of Article 6 § 1 (right to a fair hearing) of the Convention - The case concerned the proceedings relating to Ms Bochan’s “appeal in the light of exceptional circumstances” based on the European Court of Human Rights’ judgment in her previous case about the unfairness of property proceedings (judgment of 3 May 2007). The Court found that because the Supreme Court had made a distorted presentation of its findings in the 2007 judgment, Ms Bochan had not been able to have her property claim examined in the light of these findings, in the framework of the cassation-type procedure provided for under Ukrainian law. The Court considered that it was competent to examine the new issue raised in Ms Bochan’s second case without encroaching on the prerogatives of Ukraine and the Committee of Ministers under Article 46 (Binding force and implementation of judgments). It also reiterated that, while it was for the Member States to decide how best to implement its judgments, the availability of procedures allowing a case to be revisited when a violation of Article 6 had been found was the best way to achieve restoration to the applicant’s original situation.

1.  We wholeheartedly concur with the conclusion that Article 6 § 1 has been violated. On this point, the judgment constitutes an important step forward in the protection offered by the Convention to applicants who have successfully complained of a violation of their fundamental rights, and who subsequently attempt to obtain a reopening of the domestic proceedings.
2.  We nevertheless would like to indicate that, in so far as the judgment examines the applicability of Article 6 § 1 to the proceedings before the Supreme Court, we would have preferred a somewhat broader reasoning. In our opinion, it is sufficient to note that the proceedings concerned the judicial review of the decisions of the domestic courts, including the original decision of the Supreme Court of 22 August 2002, following the finding by our Court that the proceedings before the Supreme Court had been unfair. We attach much importance to the fact that the exceptional appeal brought by the applicant can be viewed as a prolongation of the original proceedings, akin to a cassation procedure (see paragraph 53 of the judgment). By contrast, we do not think that it is necessary to take account of the way in which the Supreme Court actually carried out its functions in the exceptional appeal proceedings (see paragraph 54 of the judgment). The applicability of Article 6 § 1 should not depend on the outcome of the proceedings, in particular not on the fact that the cassation court may have examined to some extent the merits of the original claim.
3.  We would also like to stress that the principles of res iudicata and legal certainty referred to in paragraph 57 of the judgment cannot be unduly upset in cases like the present one, since the possibility of reopening terminated proceedings is at the outset provided for by national law.
In this respect we reiterate that the Convention must be interpreted as guaranteeing rights which are practical and effective. Stressing, as a matter of principle, the inalterability of domestic decisions found by this Court to be in breach of the Convention could mean depriving the Court’s judgments of much of their real effect, thus rendering the Strasbourg remedy illusory.
4.  We take the opportunity to observe that we would generally be in favour of a much broader approach towards the applicability of Article 6 § 1 in civil proceedings. We should ask ourselves whether Article 6 § 1 does not apply to all judicial proceedings concerning legally protected rights or interests, regardless of the extent to which they are held to be decisive for the determination of any (civil) rights and obligations. To hold so would avoid the lengthy examination of whether or not specific proceedings, having regard to their specific features, fall within the scope of Article 6 § 1.
Publication in the media of personal information from former mayor’s criminal case file violated his right to respect for private lifeApostu v. Romania - violation of Article 3 (prohibition of inhuman or degrading treatment) and a violation of Article 8 (right to respect for private and family life, the home and the correspondence) of the Convention - The case concerned the pre-trial detention conditions of a former mayor accused of corruption and his allegation that part of the case file was leaked to the media. The Court found in particular that Mr Apostu’s right to respect for his private life had been violated as a result of documents in his criminal case file being leaked to the press. The Court found that the State had failed to provide safe custody of the information in its possession or offer Mr Apostu any means of redress once the leak had occurred.

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