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

Thursday, 16 April 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - weeks 15 and 16

No effective investigation of fatal bomb explosion in Chechnya in 2001The case Mezhiyeva v. Russia concerned a bomb explosion in Grozny (the Chechen Republic, Russia) in 2001, which killed a bus driver and left his wife – the applicant in this case – severely injured. Violation of Article 2 (right to life) of the European Convention on Human Rights. The Court found in particular that there had been unreasonable delays in the investigation and that Ms Mezhiyeva, who was a witness and a victim, had not been sufficiently involved in the investigation.

"72. The Court reiterates that Article 2 implies positive obligations of a procedural nature, including the duty for States to investigate deaths that may have occurred in breach of the Convention (see McCann and Others v. the United Kingdom, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, and Jasinskis v. Latvia, no. 45744/08, 21 December 2010, § 72). This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, and effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances, or was otherwise unlawful. It should also afford a sufficient element of public scrutiny of the investigation or its results (see, mutatis mutandis, McCann and Others, cited above, § 161; Kaya, cited above, § 86; and Juozaitienė and Bikulčius v. Lithuania, nos. 70659/01 and 74371/01, 24 April 2008, § 88; Huohvanainen v. Finland, no. 57389/00, § 95, 13 March 2007). The investigation’s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Any deficiency in the investigation which undermines its ability to establish the circumstances of the case, or to identify the person responsible, is liable to fall foul of the required measure of effectiveness (see Nachova and Others, cited above, § 113, and, a contrario, Huohvanainen, cited above, §§ 110-115).
73.  The Court notes that the respondent State authorities complied with their obligation to commence the investigation promptly, as it was started on the very day of the explosion (see paragraph 21 above). However, it was unreasonably delayed. The aggregate length of more than ten years cannot be considered to be adequate with respect to the particular circumstances of this case, when there were periods of no apparent activity in the case (see Kaya, cited above, § 106).
74.  The Court further notes that there must be a sufficient element of public scrutiny of any investigation and its results, in order to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim and the victim herself must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, § 98; Güleç, cited above, § 82; and Öğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents).
75.  The Court finds, as rightly pointed out by the Government, that Article 2 of the Convention does not require applicants to have access to police files, or copies of all documents, or for them to be consulted or informed about every step taken by the authorities (see Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, § 77). But the facts of the present case indicate that the applicant’s involvement in the investigation was below the extent necessary for her to safeguard her legitimate interests. The Court observes in this respect that for over a year from the beginning of the investigation the applicant was neither called to the prosecutor’s office for questioning nor informed about the investigative measures taken, although she was a witness in the case, and that she had to submit a request to be informed of the progress of the investigation (see paragraphs 27-29 above). Moreover, as she was not provided with any information on the progress of the investigation after having been granted victim status, she had to take once again the initiative to apply for leave to study the case file (see paragraph 38 above). The Court pays also attention to the fact that being invited to study the case file only more than five years after the beginning of the investigation, the applicant was allowed to see four photographs of the explosion scene and five other documents from the file only, without be able to make photocopies (see paragraph 40 above). She was not given any record concerning the witness statements or other procedural steps undertaken by the investigation authorities and did not receive any detailed information about these steps pursued by them. These circumstances lead to the conclusion that the required degree of public scrutiny in this particular case was not met.
76.  The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the explosion on the bridge, which led to the death of the applicant’s husband and serious injuries to the applicant, was ineffective. The Court finds that the investigation was not capable of establishing the true circumstances surrounding the explosion and the identity of the perpetrator or perpetrators. Accordingly, there has been a violation of Article 2 of the Convention under the procedural limb. The Court therefore dismisses the Government’s objection regarding the admissibility of this complaint based on the non-exhaustion of domestic remedies, which was previously joined to the merits (see paragraph 59 above). In a situation where, as a result of an ineffective investigation by the domestic authorities, there is no sufficient factual basis to enable the Court to find “beyond reasonable doubt” that the Russian authorities were responsible for the event leading to the death of the applicant’s husband and her own serious injuries and that they were not provided the necessary help quickly enough after the explosion, the Court cannot come to any conclusion other than to find no violation under the substantial limb of Article 2 of the Convention."
Police violence: Italian criminal law inadequate and not an effective deterrentThe case of Cestaro v. Italy concerned events which occurred at the end of the G8 summit in Genoa in July 2001, in a school made available by the municipal authorities to be used as a night shelter by demonstrators. An anti-riot police unit entered the building around midnight to carry out a search, leading to acts of violence. Violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention on account of ill-treatment sustained by the applicant, and a further violation of Article 3 on account of the criminal legislation applied in the present case. The Court found, in particular, that, having regard to all the circumstances presented, the ill- treatment sustained by the applicant when the police stormed the Diaz-Pertini school amounted to “torture” within the meaning of Article 3 of the Convention. It noted that the failure to identify the actual perpetrators of the ill-treatment could partly be explained by the objective difficulty of the public prosecutor’s office in establishing definite identifications but also by a lack of police cooperation. The Court found that there had been a violation of Article 3 of the Convention on account of ill- treatment sustained by Mr Cestaro and of inadequate criminal legislation concerning the punishment of acts of torture which was not an effective deterrent to prevent the repetition of such acts. After emphasising the structural nature of the problem, the Court pointed out that, as regards the remedial measures to be taken, the State’s positive obligations under Article 3 might include the duty to introduce a properly adapted legal framework, including, in particular, effective criminal-law provisions.

Failure to enforce decision on re-housing under French “Right to Housing” Act - Violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights. The case of Tchokontio Happi v. France concerned a failure to enforce a final judgment granting the applicant accommodation in the context of the law on the enforceable right to housing (known as the “DALO” Act). This is the first time that the Court has dealt with an application against France concerning non-enforcement of a decision to grant housing.
The Court took the view that the French Government could not rely on a lack of resources to explain why the applicant had still not been re-housed, over three and a half years after the judgment was delivered, in spite of the order that the matter be dealt with urgently.
Nevertheless, the Court explained that the right to a “social tenancy”, enabling the applicant to use property but not to acquire it, did not mean that she was granted a “possession” within the meaning of Article 1 of Protocol No. 1 (protection of property).

The Court clarifies the scope of the right to effective legal assistance in criminal proceedings - Violation of Article 6 § 3 (c) (right to assistance of counsel) of the European Convention on Human Rights taken together with Article 6 § 1 (right to a fair trial) on account of a failure to provide legal assistance during a police interview, and a violation of Article 6 § 3 (c) taken together with Article 6 § 1 on account of the lack of communication between the applicant and his lawyer prior to his first appearance before the investigating judge. The case of A.T. v. Luxembourg concerned the failure to provide A.T. with effective legal assistance after he was arrested under a European Arrest Warrant, during both the police interview and his first appearance before the investigating judge. The Court found in particular that, as regards the police interview, the statutory provisions then in force implicitly excluded the assistance of a lawyer for persons arrested under a European Arrest Warrant issued by Luxembourg. Since the domestic court had not remedied the consequences of that lack of assistance, by excluding from its reasoning the statements taken during that interview, the Court found on this point that there had been a violation of Article 6. As regards the applicant’s first appearance before the investigating judge, the Court found that the lack of access to the file prior to that hearing had not constituted a violation of Article 6, as that provision did not guarantee unlimited access to the file prior to such an appearance. However, the Court held that the possibility for the applicant to consult his lawyer before that hearing was not sufficiently guaranteed by Luxembourg law. In so far as A.T. had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6.

Absence of assigned counsel: Court of Cassation failed to ensure practical and effective respect for defence rights - Violation of Article 6 §§ 1 and 3 (c) (right to a fair hearing / to be assisted by counsel) of the European Convention on Human Rights. The case Vamvakas v. Greece (no. 2) concerned the unexplained absence of the applicant’s assigned counsel from a Court of Cassation hearing in the criminal proceedings against him. The Court found that the Court of Cassation had failed to ensure practical and effective respect for Mr Vamvakas’ defence rights. When faced with the manifest default of the assigned lawyer, it should have adjourned the proceedings to clarify the situation rather than dismiss the appeal on points of law as not maintained, especially as the decision was final.

The principles that the criminal law may not be applied retroactively and must be foreseeable were not respected in a case involving a charge of aiding and abetting a mafia-type organisation from the outside - Violation of Article 7 (no punishment without law) of the Convention - The case of Contrada v. Italy (no. 3) concerned the issue of whether the actions for which the applicant was convicted and sentenced to ten years’ imprisonment constituted a criminal offence at the time when they were committed.
The Court held that the offence of “aiding and abetting a mafia-type organisation from the outside” had resulted from a development in the case-law which had begun toward the end of the 1980s and was consolidated in 1994, and that it was not therefore sufficiently clear and foreseeable for Mr Contrada at the time of the events in respect of which he was charged (1979-1988).

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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