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

Thursday, 12 February 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 7

Remaining legacy prisoner voting cases: ECtHR finds violation of the right to vote but awards no compensation or legal costs - McHugh and Others v. the United Kingdom - violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights - The case concerned 1,015 prisoners who, as an automatic consequence of their convictions and detention pursuant to sentences of imprisonment, were unable to vote in elections. The Court concluded that there had been a violation of Article 3 of Protocol No. 1 because the case was identical to other prisoner voting cases in which a breach of the right to vote had been found and the relevant legislation had not yet been amended. It rejected the applicants’ claim for compensation and legal costs.
"10.  The Court has found that the statutory ban on prisoners voting in elections was, by reason of its blanket character, incompatible with Article 3 of Protocol No. 1 to the Convention (see Hirst (No. 2), cited above, § 82; and Greens and M.T., cited above, §§ 78-79). In Greens and M.T. it indicated that some legislative amendment would be required in order to render the electoral law compatible with the requirements of the Convention (see § 112 of the Court’s judgment). The Government subsequently published a draft bill which underwent parliamentary scrutiny by a joint committee of both Houses of Parliament. The committee’s report, published in December 2013, made recommendations as to suitable legislative amendments to be enacted and the appropriate timetable for enactment (see Firth and Others, cited above, § 14).
11.  Given that the impugned legislation remains unamended, the Court cannot but conclude that, as in Hirst (no. 2), Greens and M.T. and Firth and Others, and for the same reasons, there has been a violation of Article 3 of Protocol No. 1 in the applicants’ case."
General principles from the GC judgement in Hirst v. The United Kingdom (No. 2): 
"56.  Article 3 of Protocol No. 1 appears at first sight to differ from the other rights guaranteed in the Convention and Protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom.
57.  However, having regard to the preparatory work to Article 3 of Protocol No. 1 and the interpretation of the provision in the context of the Convention as a whole, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§ 46-51). Indeed, it was considered that the unique phrasing was intended to give greater solemnity to the Contracting States’ commitment and to emphasise that this was an area where they were required to take positive measures as opposed to merely refraining from interference (ibid., § 50).
58.  The Court has had frequent occasion to highlight the importance of democratic principles underlying the interpretation and application of the Convention (see, among other authorities, United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998‑I, pp. 21-22, § 45), and it would take this opportunity to emphasise that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see also the importance of these rights as recognised internationally in “Relevant international materials”, paragraphs 26-39 above).
59.  As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 51, citing X v. Germany, no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41).
60.  Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere.

61.  There has been much discussion of the breadth of this margin in the present case. The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52, and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; see also Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV, and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.
62.  It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, p. 23, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V)."
"In truth, it’s hard to see how the European Court could ever have upped the ante with the UK. It’s doubtful that its powers are wide enough. So to call this a Strasbourg surrender would go too far. But choosing to award neither damages nor (and this is the telling point) any legal costs means the Court is washing its hands of this, and wants no more cases added to its backlog. The message to prisoners and their lawyers is clear: apply, and you’ll have a symbolic win. There’s no cash in it." Britain’s got it way its way on prisoners’ votes – so why withdraw from the ECHR? (Carl Gardner)
Following conviction of war crimes in his absence, defendant should have had a real possibility of a rehearing of his case - case of Sanader v. Croatia - violation of Article 6 § 1 (right to a fair trial) - The case essentially concerned the complaint by a man convicted in his absence of war crimes – committed in 1991 as a participant in Serb paramilitary forces – that he was unable to obtain a rehearing of his case. The Court found that the possibilities under Croatian law to obtain a retrial, as suggested by the Croatian Government, had not provided Mr Sanader with sufficient certainty with the opportunity of appearing at a new trial. In particular, by obliging him to appear before the national authorities and to provide an address of residence in Croatia in order to request a retrial, the Croatian authorities had created a disproportionate obstacle to his use of the remedy.
General principles
"67.  Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal offence” the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”, and it is difficult to see how he could exercise these rights without being present (see, among many others, Colozza v. Italy, 12 February 1985, § 27, Series A no. 89, and Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II).68.  Although proceedings that take place in the accused’s absence are not in themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is subsequently unable to obtain from the court a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been unequivocally established that he has waived his right to appear and to defend himself (see Colozza, cited above, § 29; Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI; Krombach v. France, no. 29731/96, § 85, ECHR 2001-II; and Somogyi v. Italy, no. 67972/01, § 66, ECHR 2004-IV) or that he intended to escape trial (see Medenica v. Switzerland, no. 20491/92, § 55, ECHR 2001‑VI).69.  The Convention leaves the Contracting States wide discretion as regards the choice of the means put in place to ensure that their legal systems are in compliance with the requirements of Article 6. The Court’s task is to determine whether the result called for by the Convention has been achieved. In particular, the procedural means offered by domestic law and practice must be shown to be effective where a person charged with a criminal offence has neither waived his right to appear and to defend himself nor sought to escape trial (see Medenica, cited above, § 55; and Somogyi, cited above, § 67).70.  In any case, the Court reiterates that there can be no question of an accused being obliged to surrender to custody in order to secure the right to be retried in conditions that comply with Article 6 of the Convention, for that would entail making the exercise of the right to a fair hearing conditional on the accused offering up his or her physical liberty as a form of guarantee (see Krombach, cited above, § 87).71.  The Court has further held that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or at a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005). Accordingly, the refusal to reopen proceedings conducted in the accused’s absence, without any indication that the accused has waived his or her right to be present during the trial, has been found to be a “flagrant denial of justice” rendering the proceedings “manifestly contrary to the provisions of Article 6 or the principles embodied therein” (ibid., §§ 54-58).72.  Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, his entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277‑A). Furthermore, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A).73.  The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a “fugitive”, which was founded on a presumption with an insufficient factual basis, that he had waived his right to appear at the trial and defend himself (see Colozza, cited above, § 28). It has also had occasion to point out that, before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).74.  Furthermore, a person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure (see Colozza, cited above, § 30). At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant a finding that he had been absent for reasons beyond his control (see Medenica, cited above, § 57)." 

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