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

Friday, 29 April 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - weeks 16-17

Leaving mentally-ill life prisoner without treatment for decades deprived him of any realistic prospect of releaseGrand Chamber judgment - case of Murray v. the Netherlandsviolation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights - The case concerned the complaint by a man convicted of murder in 1980, who consecutively served his life sentence on the islands of Curaçao and Aruba (part of the Kingdom of the Netherlands) – until being granted a pardon in 2014 due to his deteriorating health –, about his life sentence without any realistic prospect of release. The applicant, Mr Murray, notably maintained that he was not provided with a special detention regime for prisoners with psychiatric problems. Although a legal mechanism for reviewing life sentences had been introduced shortly after he lodged his application with the Court, he argued that, de facto, he had no perspective of being released since he had never been provided with any psychiatric treatment and therefore the risk of his reoffending would continue to be considered too high to be eligible for release. Mr Murray passed away while the case was pending before the Grand Chamber. Two of his relatives subsequently pursued his case before the Court. The Court came to the conclusion that Mr Murray’s life sentence had not de facto been reducible. It observed that although he had been assessed, prior to being sentenced to life imprisonment, as requiring treatment, he had never been provided with any treatment for his mental condition during the time he was imprisoned. The opinions of the domestic court advising against his release showed that there was a close link between the persistence of the risk of his reoffending on the one hand and the lack of treatment on the other. Consequently, at the time he lodged his application with the Court, any request by him for a pardon was in practice incapable of leading to his release.

"124. As already stated above (paragraph 110), States have a wide margin of appreciation in the determination of what facilities or measures are required in order to give a life prisoner the possibility of rehabilitating himself or herself to such an extent that he or she may one day become eligible for release. It is accordingly not for the Court to prescribe what treatment was required in the specific circumstances. However, although the applicant in the present case was indeed initially, prior to being sentenced to life imprisonment, assessed as requiring treatment, it does not appear that any further assessments were carried out – either when he started serving his sentence or thereafter – of the kind of treatment that might be required and could be made available or of the applicant’s aptitude and willingness to receive such treatment. In the Court’s view, very little, if any, relevance falls to be attached to the fact that the applicant himself had not apparently been concerned about procuring treatment and had preferred to be transferred from Curaçao to Aruba where the availability of psychiatric help was (even more) limited. It must be borne in mind that persons with mental health problems may have difficulties in assessing their own situation or needs, and may be unable to indicate coherently, or even at all, that they require treatment (see also paragraph 106 above).

125. Having regard to the foregoing, the Court finds that the lack of any kind of treatment or even of any assessment of treatment needs and possibilities meant that, at the time the applicant lodged his application with the Court, any request by him for a pardon was in practice incapable of leading to the conclusion that he had made such significant progress towards rehabilitation that his continued detention would no longer serve any penological purpose. This finding likewise applies to the first, and in fact only, periodic review that was carried out of the applicant’s life sentence. This leads the Court to the conclusion that the applicant’s life sentence was not de facto reducible as required by Article 3.
126. This being the case, the Court does not consider it necessary to conduct any further or more detailed analysis of either the pardons system or the periodic review mechanism with a view to assessing whether the life sentence was de jure reducible, or of the regime under which the applicant was detained.
127. Accordingly, there has been a violation of Article 3 of the Convention."
Arrest and prosecution for breaches of public assembly rules following one- person demonstrations violated activists’ freedom of expression - case of Novikova and others v. Russia - violation of Article 10 (freedom of expression) of the European Convention on Human Rights in respect of all five applicants. The case concerned the complaints by five people, lodged separately, about the authorities’ response to demonstrations held by each of them, notably their arrest and retention at a police station for several hours and, in respect of three of the applicants, their conviction of an administrative offence. The Court concluded that the authorities’ actions, for which they had not given relevant and sufficient reasons, had constituted a disproportionate interference with the applicants’ right to freedom of expression. In particular, the applicants had merely voiced their opinion in a non-violent manner.

"I voted in favour of finding a violation of Article 10 of the Convention in the present case, but on the basis of different reasoning from that of the other judges in the Chamber. I wish to set out briefly the reasons why I disagree with their approach. 

It is well known that it is for the State to demonstrate the lawfulness of grounds justifying any interference with the exercise of a person’s right to freedom of expression or freedom of assembly. Those grounds constitute a numerus clausus to be interpreted strictly (see, inter alia, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013).
The Government argued that the interference was lawful and could be justified by grounds relating to the protection of public order and national security or public safety (see paragraphs 95, 96 and 145 of the judgment).
It so happens that the judgment has attributed a different legal characterisation to the interference. After some hesitation, the Court decided to analyse the decision of the Russian authorities to put an end to the applicants’ peaceful demonstrations as being based on considerations related to the “prevention of crime” (paragraphs 140, 143 and 148). However, no crime had been committed; nor had the possibility of a crime being committed even been envisaged. The wrongdoing for which the applicants were officially reproached consisted, essentially, in a failure to give prior notice to the administrative authorities that a demonstration was taking place. An administrative offence cannot, in my view, be treated as a “crime” for the purposes of Articles 10 § 2 or 11 § 2 of the Convention. The inclusion of administrative sanctions within the scope of Article 6 § 1, in view of the autonomous notion of criminal charge, stems from a completely different logic, based in particular on a concern to improve the protection of fundamental rights.
Consequently, I am of the view that the failure to carry out the formality in question could not be assimilated to a criminal offence, unless the permitted limitations to freedom of expression or freedom of assembly were to be given an extensive interpretation. I would point out that the demonstration was a peaceful one and was limited to a single individual. 
In the present case, I consider, unlike the other judges, that the only reasonable ground that could have been relied on to justify the interference with the applicants’ right to freedom of expression or freedom of assembly was the classical concept of the “prevention of disorder”, as the respondent State itself had indeed claimed. Given that, according to the precedent of Perinçek v. Switzerland ([GC], no. 27510/08, §§ 146 and 153, ECHR 2015), the “prevention of disorder” concerns the risk of “riots” or “clashes”, it could have been rapidly concluded that the premature termination of the demonstration constituted a disproportionate measure."
Law governing the inspection of political parties’ expenditure was unclearcase of Cumhuriyet Halk Partisi v. Turkey - violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights - The case concerned the confiscation of a substantial part of the assets of Turkey’s main opposition party, Cumhuriyet Halk Partisi, by the Constitutional Court following an inspection of its accounts for the years 2007 to 2009. The Court found that requiring political parties to subject their finances to official inspection did not in itself raise an issue under Article 11, as it served the goals of transparency and accountability, thus ensuring public confidence in the political process. The Court stressed however that, having regard to the important role played by political parties in democratic societies, any legal regulations which might have the effect of interfering with their freedom of association, such as the inspection of their expenditure, had to be couched in terms that provided a reasonable indication as to how those provisions would be interpreted and applied. In Cumhuriyet Halk Partisi’s case, the scope of the notion of unlawful expenditure under the relevant legal provisions in force at the time as well as the applicable sanctions for unlawful expenditure had, however, been ambiguous.
"106. The Court considers that in modern societies, the activities undertaken by political parties in furtherance of their objectives will necessarily span a wide spectrum, ranging from purely political endeavours to more ancillary activities that are nevertheless essential to a political party’s existence. The Court further recognises the difficulty involved in providing comprehensive criteria to determine which of those activities may be considered to be in keeping with the objectives of a political party and genuinely in relation to party work. Nevertheless, having regard to the important role played by political parties in democratic societies, any legal regulations which may have the effect of interfering with their freedom of association, such as the inspection of their expenditure, must be couched in terms that provide a reasonable indication as to how those provisions will be interpreted and applied. In the instant case, the lack of precision of the relevant legal provisions, coupled with the apparent failure of the Constitutional Court to establish consistent case-law at the material time on how such provisions would be interpreted in practice deprived the applicant party of the possibility of regulating its expenditure accordingly. The Court notes that the amendments introduced to section 74 of the Political Parties Act in 2011 sought to remedy that vagueness, in terms of both the activities in relation to which a political party may incur expenses, and the scope of the Constitutional Court’s powers in reviewing the lawfulness of the expenditure on those activities. Although the Court is not in a position to comment on the appropriateness of those amendments from the standpoint of Article 11 § 2 of the Convention, it nevertheless considers that they aimed to bring some clarity to the political parties’ entitlements and obligations regarding their expenditure, which the legislature must have considered was lacking.

107. Having regard to the foregoing, and to its considerations regarding the ambiguity of the applicable sanctions for unlawful expenditure, the Court concludes that the condition of foreseeability under Article 11 § 2 was not satisfied in the instant case and that, accordingly, the interference in question was not prescribed by law.
108. In these circumstances, the Court need not ascertain whether the other requirements of the second paragraph of Article 11 of the Convention were complied with in the instant case – namely, whether the interference pursued one of the legitimate aims stated in that paragraph and whether it was necessary in a democratic society in pursuance of such an aim (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 101, 14 September 2010, and, mutatis mutandis, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 42, ECHR 1999‑VIII). The Court notes in particular that in so far as the applicant party complained that the application of the sanction of “confiscation”, as opposed to that of “warning”, was disproportionate in view of the nature of the alleged irregularities in its accounts, including those concerning shortcomings in documentation, the issue has been dealt with sufficiently in the judgment.
109. It follows that there has been a violation of Article 11 of the Convention."

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