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

Thursday, 31 March 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - week 13

Media-hyped police operations were in breach of several rights protected under the Convention - Cases concerned a number of media-hyped police operations, raising issues similar to those examined by the Court in the case of Gutsanovi v. Bulgaria regarding the prohibition of torture and inhuman or degrading treatment (Article 3) and respect for the accused’s presumption of innocence (Article 6 § 2). 

Criminal justice and prosecutorial system in the UK did not undermine investigation into fatal shooting in the London Underground - Grand Chamber - case of Armani Da Silva v. the United Kingdom - no violation of Article 2 (right to life – investigation) of the European Convention on Human Rights - The case concerned the fatal shooting of Jean Charles de Menezes, a Brazilian national mistakenly identified by the police as a suicide bomber. Ms Armani Da Silva, who is Mr de Menezes’ cousin, complained that the State had not fulfilled its duty to ensure the accountability of its agents for his death because the ensuing investigation had not led to the prosecution of any individual police officer. Having regard to the proceedings as a whole, the Court found that the UK authorities had not failed in their obligations under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of identifying and – if appropriate – punishing those responsible. In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission (IPCC), the Crown Prosecution Service (CPS), the criminal court and the Coroner and jury during the Inquest. The decision not to prosecute any individual officer was not due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute. 

Trial was unfair because witnesses for the prosecution, whose statements were relied on for a conviction, could not be examined by defence - case of Gökbulut v. Turkey - violation of Article 6 §§ 1 and 3 (c) (right to legal assistance) of the European Convention on Human Rights, and a violation of Article 6 §§ 1 and 3 (d) (right to examine witnesses) - The case concerned the inability of Mr Gökbulut, who was convicted of membership of an illegal organisation, to examine or have examined witnesses whose statements were relied on for his conviction, and the lack of legal assistance when he was held in police custody. The Court found in particular that the proceedings had been unfair as a whole, since Mr Gökbulut had not had legal assistance while in police custody and had not had the possibility of examining or having examined witnesses against him, although their statements had been decisive for his conviction. The authorities had not given any serious reason to justify their failure to call the witnesses and had not taken any steps to counterbalance the admission in evidence of the absent witnesses’ testimony. 

Use as evidence of absent witness’s telephone recording did not make trial unfair in view of other decisive evidence - case of Seton v. the United Kingdom - no violation of Article 6 § 1 in conjunction with Article 6 § 3 (d) (right to a fair trial and right to obtain attendance and examination of witnesses) of the European Convention on Human Rights. The case concerned the complaint of a criminal convict about the admission of evidence of an absent witness at his trial. The Court applied the principles established in its Grand Chamber judgments in two cases concerning the absence of witnesses at a public trial, Al-Khawaja and Tahery v. the United Kingdom and Schatschaschwili v. Germany (2011 and 2015 respectively). It found that the criminal proceedings as a whole had not been rendered unfair by the admission in evidence of the recordings of the absent witness’s telephone conversations, having regard to the fact that there had been other decisive incriminating evidence, and that the trial judge had applied procedural safeguards capable of counterbalancing the witness’s absence at trial. 

Refusal of five Somali nationals’ application to join their mother in the UK was justified - In its decision in the case of I.A.A. and Others v. the United Kingdom the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final. The case concerned the complaint by five Somali nationals, the applicants, about the UK authorities’ refusal to grant them entry into the United Kingdom to be reunited with their mother. The applicants’ mother had joined her second husband in the UK in 2004 and the applicants were left in the care of their mother’s sister in Somalia. They moved in 2006 to Ethiopia where the applicants have been living ever since. The Court concluded that, in refusing the application to join their mother, the national courts had struck a fair balance between the applicants’ interest in developing a family life in the UK and the State’s interest in controlling immigration. While the applicants’ situation was certainly unenviable, they were no longer young children (they are currently 21, 20, 19, 14 and 13) and had grown up in the cultural and linguistic environment of their country of origin before living together as a family unit in Ethiopia for the last nine years. Indeed, they had never been to the UK and had not lived together with their mother for more than 11 years. As concerned the applicants’ mother, who had apparently made a conscious decision to leave her children in Somalia in order to join her new husband in the UK, there was no evidence to suggest that there would be any insurmountable obstacles to her relocating either to Ethiopia or to Somalia. 

A penalty imposed on a journalist for violation of the secrecy of criminal investigations was justified - case of Bédat v. Switzerland - Grand Chamber - no violation of Article 10 (freedom of expression) of the European Convention on Human Rights
- The case concerned the fining of a journalist for having published documents covered by investigative secrecy in a criminal case. The Court found in particular that the publication of an article slanted in the way it had been at a time when the investigation was still ongoing comprised the inherent risk of influencing the conduct of proceedings which had in itself justified the adoption by the domestic authorities of deterrent measures, such as a ban on disclosing confidential information. While accepting that the accused could have had recourse to civil-law remedies to complain of interference in his private life, the Court nevertheless held that the existence in domestic law of remedies to which the accused could have had recourse did not dispense the State from its positive obligation to protect the private life of all persons charged in criminal proceedings. Finally, the Court found that the penalty imposed on the journalist for violation of secrecy, geared to protecting the proper functioning of justice and the accused’s rights to a fair trial and respect for his private life, had not amounted to disproportionate interference in the exercise of his right to freedom of expression. 

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