.

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

vrijdag 19 oktober 2018

A bird's eye view: September's case law in criminal matters from the ECtHR and the CJEU









Case law from Strasbourg in criminal matters: the European Court of Human Rights (ECtHR)


Article 2 ECHR (Right to life)

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Criminal law and police force

ECtHR, 4 September 2018 - judgement in the case of Mendy v France: Use of force by the police against assailant was legitimate as the victim had been in danger

he case concerned the death of a man who was armed with a knife and had failed to heed police warnings while dangerously pursuing another before being shot by the police. The Court concluded from all the circumstances that the police officer’s response had been absolutely necessary in the light of the serious immediate threat to the life of the man being
pursued. Moreover, observing that the domestic court decisions had contained particularly thorough reasoning, the Court found that the investigation as a whole had been sufficiently effective to establish that the use of force had been justified in the circumstances.

The Court noted, as had the domestic courts, that the evidence obtained during the investigation showed that L.M. had been armed with a knife throughout the events, that he had not dropped the knife when the police officers had ordered him to do so and had subsequently stabbed a police officer in the hand. A dagger had also been found in his belt. The Court also observed that it had been established that one of the police officers had fired a warning shot which L.M. had ignored. Nor had he stopped after being hit by a car. It could be seen from the domestic courts’ decisions and the evidence obtained during the investigation, particularly witness evidence, that L.M. had not been in a “normal” state. The police officers had therefore been justified in thinking that L.M. appeared to be out of control, resuming his headlong pursuit of J.-P.H. despite their attempts to stop him.
It could be seen from the domestic courts’ decisions, which contained particularly thorough
reasoning, that the wildly erratic behaviour of L.M. had indisputably posed an imminent threat to J.-P.H.’s life. The Court therefore considered that police officer S.T. had acted in the sincere conviction that J.-P.H.’s life was under threat and had genuinely believed it necessary to use force. The Court reiterated that where it was called upon to examine whether the use of lethal force was legitimate, being detached from the events at issue it could not substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert a genuinely perceived danger.
The Court concluded from all the circumstances that the police officer’s response had been
absolutely necessary in the light of the serious immediate threat to J.-P.H.’s life. In view of L.M.’s attitude, the inability of the other police officer, who was injured, to intervene and to the undeniable imminent risk facing J.-P.H., police officer S.T.’s decision to use his firearm could, in the circumstances, be deemed absolutely necessary in “defence of any person from unlawful violence”. The Court also considered that Ms Mendy’s allegations of poor handling of the operations and regarding the effect of the arrival of the police on her brother’s conduct were unsubstantiated. Lastly, with regard to Ms Mendy’s allegation that the rules governing the use of weapons were inadequate, the Court observed that Article 122-5 of the Criminal Code, applicable to lawenforcement officers, which lay down the grounds for legitimate self-defence, referred to the “necessity” of the defensive action and the “imminence” of the danger, and required the response to be proportionate to the attack. That provision echoed the wording of Article 2 of the Convention and contained the elements required by the Court's case-law. It followed that the complaints were ill-founded and must be rejected.

The investigation - The Court pointed out that the review of the proportionality of the use of force had been carried out by the three levels of domestic courts. Referring to its finding that the domestic courts’ decisions had contained particularly thorough reasoning in the present case, the Court found that the investigation as a whole had been sufficiently effective to establish that the use of force had been justified in the circumstances of the case. Moreover, Ms Mendy’s complaint about the alleged lack of independence of the investigation was not substantiated. That part of the application was ill-founded and had to be rejected.


Criminal law and medical negligence


ECtHR, 4 September 2018 – judgement in the case of Yirdem and others v. Turkey

The applicants, Münüre Yirdem, Derya Şahin Yirdem, and Gülay İlter Yirdem, are three Turkish nationals who were born in 1958, 1973, and 1979 respectively and live in Istanbul. The case concerned proceedings relating to the circumstances of the death in hospital of the applicants’ relative, Nayim Yirdem. The applicants are the deceased’s widow and his two daughters. In August 2003, three days after being admitted to hospital, Nayim Yirdem died of a cardiac arrest despite doctors’ efforts to resuscitate him. An autopsy showed that his death had been caused by a heart attack and stroke resulting from corrosive poisoning with heptane and toluene, two components of organic solvents. According to a report written in August 2005 by the Forensic Medical Institute, these substances had not been present in the hospital. In April 2006 the public prosecutor charged the medical staff of the hospital’s neurology department with negligence in the performance of their duties. In May 2010 the defendants were acquitted by the Criminal Court, which based its decision on the findings of an expert report by the National Health Council, according to which the defendants were not guilty of any professional misconduct and the substance in question had most likely been injected before the patient was admitted to hospital. That judgment was upheld by the Court of Cassation in March 2012. Relying in particular on Article 2 (right to life), the applicants complained of the death of Naim Yirdem, alleging, among other things, that the domestic authorities had failed to establish the origin of the two hydrocarbons found in the deceased’s body. The Court found no violation of Article 2 (right to life/investigation)

ARTICLE 3 (Prohibition of torture)

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ECtHR,  20 September 2018 – judgement in the case of Aliyev v. Azerbaijan: Court finds rights violations in case of human rights lawyer (art. 3, 5 and 8 ECHR)

The case of Aliyev v. Azerbaijan (application no. 68762/14) concerned the detention of a lawyer and human rights activist on charges including illegal entrepreneurship, embezzlement and tax evasion The applicant, Intigam Kamil oglu Aliyev, is an Azerbaijani national who was born in 1962 and lives in Absheron (Azerbaijan). The facts of his case are similar to those in Rasul Jafarov v. Azerbaijan.

Mr Aliyev is a well-known human rights lawyer who has represented applicants before the
Strasbourg Court. He is also chairman of an officially registered association called the Legal
Education Society. In June 2014 he presented a report on the side-lines of a Council of Europe Parliamentary Assembly session on the human rights situation in Azerbaijan. In May 2014 the Prosecutor General’s Office opened a case on alleged financial irregularities at
various non-governmental organisations, including Mr Aliyev’s association. In August he was charged with illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power. The investigator in the case stated that Mr Aliyev had failed to inform the authorities that he had become head of a legal entity – his association – and had omitted to register grants from donors. He had also signed agreements on various sums without legal authority and had deposited money and made payments to himself and others in the guise of salaries and service fees. Mr Aliyev had thus, according to the authorities, conducted illegal entrepreneurial activity, had profited from that and had avoided paying tax. He was arrested and remanded in custody for three months, with his appeals against detention being dismissed. His home and his association’s office were also searched. Documents and various objects were seized, including case files on applications to the Court. The domestic courts rejected his complaints that those measures had been unlawful. In December 2014 the Prosecutor General’s Office brought new charges: high-level embezzlement, forgery by an official and very large-scale tax evasion. He was convicted in April 2015 and given a sentence of seven and a half years’ imprisonment, reduced to a five-year suspended sentence in March 2016, when he was released from detention. His trial is the subject of a separate application.

The Court held, unanimously, that there had been one violation of Article 3 (prohibition of torture) of the European Convention on Human Rights related to the conditions of his pre-trial detention, and no violation of Article 3 related to his medical care in detention and to the conditions of a later period of detention, and a violation of Article 5 § 1 (right to liberty and security) owing to the lack of a reasonable suspicion that he had committed a criminal offence as grounds for his detention, and a violation of Article 5 § 4 (review of detention) on account of the lack of a proper judicial review of the lawfulness of his detention, and a violation of Article 8 (right to respect for private life and communications) because of a search of his office and home, and a violation of Article 18 (limitation on use of restrictions on rights) as the Court found that the measures taken against the applicant had been aimed at silencing and punishing him for his human rights activities rather than for one of the legitimate purposes under the Convention.
The Court found in particular that this case was part of “a troubling pattern of arbitrary arrest and detention of critics of the Government, civil society activists and human rights defenders”. It called on the Government to take steps to protect such people, ensuring that there were no more retaliatory prosecutions and misuse of the criminal law against them.

ARTICLE 6 (Right to a fair trial)
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

ECtHR, 4 September 2018 – Güner v. Turkey: Denial of legal asssistance

The applicant, Ömer Güner, is a Turkish national who was born in 1969 and lives in Aydın (Turkey). The case concerned Mr Güner’s conviction for aiding and abetting a terrorist organisation after he had been denied legal assistance, and on the basis of testimony made without a lawyer being present. Mr Güner, the manager of a hotel at the time, was arrested in July 2002 by counter-terrorism police officers as part of an operation against an illegal organisation, the Bolşevik Parti–Kuzey Kürdistan/Turkiye (Bolshevik Party–North Kurdistan/Turkey). Various left-wing materials were found in his room and he later told police, without a lawyer being present, that he had let two men linked to the Bolshevik Party stay at the hotel and use his car. One of the men, Mehmet Desde, was the applicant in Desde v. Turkey. Mr Güner was charged in September 2002 with aiding and abetting an illegal organisation. He denied the charges. After various sets of proceedings, he was convicted in March 2006 and sentenced to 10 months’ imprisonment and a fine. The court found that the Bolshevik Party could be classed as a terrorist organisation and that he had aided and abetted it. His appeals were dismissed. Relying in substance on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing), Mr Güner alleged in particular that he had been denied legal assistance in the preliminary investigation stage, that his statements had been made under duress and that he had been convicted on the basis of testimony made in the absence of a lawyer. Violation of Article 6 §§ 1 and 3 (c)


ECtHR, 6 September 2018 - judgement in the case of Kontalexis v. Greece: Refusal to reopen res judicata criminal proceedings following a judgment of the Court finding a violation did not infringe the Convention

The case concerned an unsuccessful application to have proceedings before the domestic courts reopened following a judgment of the Court.

The Court found in particular that the reasoning of the Court of Cassation which had had the effect of limiting the situations that could give rise to the reopening of criminal proceedings that had been terminated with final effect, or at least making them subject to criteria to be assessed by the domestic courts, did not appear to be arbitrary. It reiterated its settled case-law to the effect that the Convention did not guarantee the right to the reopening of proceedings. The Court also held that, having regard to the discretion (“margin of appreciation”) available to the domestic authorities in interpreting its judgments, the Court of Cassation had been entitled to find that the judgment of 2011 did not call into question the fairness of the proceedings or the independence or impartiality of the trial bench.
 

ECtHR, 6 september 2018 - Dadayan v. Armenia: Proceedings before the Armenian courts concerning the smuggling of enriched uranium were not fair because key witnesses were never heard

The case concerned criminal proceedings brought against an Armenian national, Garik Dadayan, for aiding and abetting the smuggling of enriched uranium into Georgia. The two smugglers were prosecuted and convicted in Georgia, while Mr Dadayan was prosecuted and convicted in Armenia, essentially on the basis of the smugglers’ witness statements to the Georgian authorities.

The Court noted that one of the requirements of a fair trial was the possibility for the accused to confront witnesses in the presence of the judge who ultimately had to decide the case. This was because a judge’s observations on the demeanour and credibility of a witness could have consequences for the accused. In Mr Dadayan’s case, the witnesses S.T. and H.O. had been absent from his trial because the Georgian authorities had refused to authorise their transfer to Armenia. However, there had been no good reason for the trial court to then admit the statements of those absent witnesses as evidence without them being examined in court. Indeed, the trial court had not made any further attempts to try to find out whether it would be possible to transfer the two witnesses to Armenia if and when their convictions became final. Nor had any other means of examining them been contemplated, for example via video link. Moreover, their statements had been fundamental for the case because it was the sole basis on which the courts could decide whether Mr Dadayan had been involved in selling enriched uranium. Not hearing those witnesses in person had therefore substantially affected his defence rights. Instead, the courts had based its conclusions on witness evidence which had never even been examined. Lastly, there had not been sufficient procedural safeguards in place to compensate for those handicaps to the defence. Although he had had the possibility to challenge the admissibility of S.T and H.O.’s testimony, he had not been able to challenge their statements during the investigation stage, which had taken place in Georgia, while his prosecution and conviction had been in Armenia. There was nothing to indicate that the trial court had approached the untested evidence with any specific caution. The Court therefore concluded that, overall, Mr Dadayan had not had a fair trial, in breach of Article 6 §§ 1 and 3 (d).

ARTICLE 10 (Freedom of expression)
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.


ECtHR, 4 September 2018 – case of Fatih Taş v. Turkey: criminal proceedings against a publisher for denigrating the Republic of Turkey: violation of the right to freedom of expression

The case concerned the criminal proceedings instituted against the owner of a publishing company (Mr Taş) for denigrating the Republic of Turkey on account of the publication of a book concerning the disappearance of a journalist in south-east Turkey in 1994. The domestic courts based their decision on the offence set out in Article 159 § 1 of the former Criminal Code, which was replaced by Article 301 of the new Criminal Code, in force since 1 June 2005.

The Court found in particular that there had been interference with the exercise of Mr Taş’s freedom of expression. It also expressed doubts as to the foreseeability of Article 301 of the new Criminal Code and Article 159 of the former Criminal Code, on which the interference had been based, pointing in that regard to its case-law concerning the quality of the law. The Court also found that the passages from the book complained of had in no way been “gratuitously offensive” or insulting and that they had not incited to violence or hatred, which in the Court’s view was the essential element to be taken into account. It therefore considered that the criminal proceedings in question, which had been liable to have a chilling effect on Mr Taş’s willingness to express his views on matters of public interest, had not met a pressing social need and had not been proportionate to the legitimate aims pursued (the protection of public safety and of national security). They had therefore not been necessary in a democratic society. Under Article 46 of the Convention, the Court considered that bringing the domestic legislation into compliance with Article 10 of the Convention and the Court’s case-law would constitute an appropriate form of execution by which to put an end to violations of the rights guaranteed by Article 10 of the Convention in cases concerning proceedings brought under Article 159 of the former Criminal Code and Article 301 of the new Criminal Code.

ECtHR, 20 September 2018 – judgement in the case of Annen v Germany (nos.2-5): Freedom of expression does not give the right to label abortions performed by designated doctors “aggravated murder”

The cases concerned a series of complaints by an anti-abortion activist, Klaus Günter Annen, over civil court injunctions on various actions he had taken as part of an anti-abortion campaign. The plaintiffs in the domestic proceedings were four doctors who performed abortions. The Court held in particular that the injunctions had interfered with Mr Annen’s freedom of expression, but had been necessary in a democratic society. When examining whether there had been a need for such interferences in the interests of the “protection of the reputation or rights of others”, namely of the doctors, the Court’s role was only to ascertain whether the domestic courts had struck a fair balance when protecting the freedom of expression guaranteed by Article 10 and the right to respect for private life protected by Article 8 of the Convention. In sum, the Court considered that the injunctions had not been disproportionate to the legitimate aim pursued and that the reasons given by the domestic courts had been relevant and sufficient. It pointed out that the domestic authorities had carried out a detailed analysis of the leaflets and webpage set up by Mr Annen and that the accusations by Mr Annen against the various abortion doctors had not only been very serious but might also have incited hatred and aggression. In this regard, the Court found the domestic courts’ conclusion acceptable that Mr Annen’s statements, in particular by using the term “aggravated murder”, could be understood as personalised accusations against the doctors of having perpetrated the criminal offence of aggravated murder.

The Court underlined that its task under Article 10 was to look at the interference complained of in the light of the case as a whole and determine whether it had been “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it had been “relevant and sufficient”. Where a balancing exercise had been undertaken by the national authorities in conformity with the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.
Turning to the first case (application no. 3682/10), the Court accepted the domestic Court of Appeal’s conclusion that Mr Annen’s statements had been ambiguous and could be understood as an accusation that Dr Q. had perpetrated the criminal offence of aggravated murder. Distinguishing the present case from the case of its previous judgment Annen v. Germany (no. 3690/10, 26 November 2015), it noted that Mr Annen had not provided the additional information that the abortions performed by Dr Q. had not been subject to criminal liability. Furthermore, there had been no factual foundation for the very serious criminal allegations made by Mr Annen. Lastly, the Court observed that Mr Annen had not been ordered to pay damages or convicted but had only had to refrain from calling the abortions “aggravated murder”.
Having regard to the second case (application no. 3687/10), the Court agreed with the domestic courts observations that while - strictly speaking - calling abortions unlawful was correct, the statement by Mr Annen read in conjunction with the rest of the leaflet could be understood as an allegation that Dr S.’s professional activities constituted aggravated murder. It had to be noted that in this case too Mr Annen’s accusations against Dr S. were very serious and that he, nonetheless, was not per se prohibited from campaigning against abortions or criticising doctors that performed abortions. Since the domestic courts had thoroughly discussed various possibilities of interpreting the statements in light of the freedom of expression, the Court found no violation of Article 10 In the third case (application no. 9765/10) the Court firstly agreed with the domestic court’s finding that the applicant had vilified Dr St. by implying that he had committed criminal acts. It secondly observed that Mr Annen had singled out Dr St. from all the doctors that had performed abortions and had thereby created a “pillory effect”. Even though Dr St. had been involved in various legal disputes in the past, the domestic courts had concluded that this did not have any substantial effects on Dr St.`s profile and could not redound to his disadvantage. Having regard to their direct contact with their societies, the Court found that it was primarily for the domestic courts to assess how well known a person was. In conclusion, the Court saw no reason to call the domestic courts’ reasoning into question. It thirdly held that Mr Annen’s “pavement counselling” had severely disrupted the relationship of trust between Dr St. and his patients.
Lastly, since Mr Annen had not been convicted for slander or ordered to pay damages, the Court held that the level of interference with his freedom of expression had been relatively low and had been “proportionate to the legitimate aims pursued”. Therefore, in the Court’s view, the national courts had thoroughly assessed the conflicting interests by referring to the previous judgment of the Federal Court of Justice and considering the factual and legal differences of the cases. The Court also found no violation of Article 10 of the Convention in the fourth case (application no. 70693/11). It found that there was not a sufficient factual basis for calling abortions as performed by Dr F. “aggravated murder”. Furthermore, distinguishing the present case from the case of its previous judgment Annen v. Germany (no. 3690/10, 26 November 2015), the Court observed that Mr Annen had equated the medical activities of Dr F. with the unjustifiable atrocities inflicted on Jews under the Nazi regime and had even stated that “Equating the Babycaust with the Holocaust would mean relativising today’s abortion murders”. These accusations were very serious and had severely undermined Dr F.’s reputation. Based on the national courts’ detailed reasoning, the Court considered therefore that both the injunction and the order to pay damages against Mr Annen had not fallen outside their margin of appreciation and had not been disproportionate. Accordingly, there had been no violation of Article 10 of the Convention in any of the four cases.

ECtHR, 20 September 2018 - case of Jishkariani v. Georgia: Psychiatrist’s right to reputation breached by Georgian Minister of Justice


The case concerned defamation proceedings brought in 2005 by a psychiatrist, who is also a civil society activist, against the Minister of Justice at the time. The Minister had accused her on live television and in a newspaper of issuing medical reports to prisoners in exchange for money.

The Court agreed with the domestic courts that the Minister’s statements had been part of an important debate of general interest at the time, namely whether prisons and prison medical services were being managed properly. Given Ms Jishkariani’s position and activities in prison, it further accepted the courts’ assessment of her as a public figure acting in an official capacity and that, as such, she had to tolerate a higher level of criticism than a private individual. Even assuming that the Court also accepted the classification of the Minister’s statements as opinions or “value judgments”, which are not susceptible of proof under the Court’s case-law, there had to be a sufficient factual basis to support them. That basis had been lacking. While the Minister had commissioned an internal investigation into the matter, he had not waited for its completion before making his accusations. Nor was he in possession of other verified information against Ms Jishkariani. Yet the courts had considered that he had made an effort to verify his statements, despite pointing out in their decisions that Ms Jishkariani had never been investigated over any crime and that the Minister’s statements “may have contained erroneous facts”. The European Convention could not be interpreted as obliging an individual to tolerate very serious public accusations of criminal behaviour by Government officials, without them being supported by facts. In sum, the Court was not convinced that the reasons given by the domestic courts for protecting the Minister’s freedom of expression had outweighed Ms Jishkariani’s right to reputation. There had therefore been a violation of Article 8.

ARTICLE 11 (Freedom of assembly and association)
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
ECtHR, 20 September 2018 – judgement in the case of Mushegh Saghatelyan v Armenia: Police break-up of protest against 2008 presidential election and prosecution of opposition activist breached the European Convention

The case of Mushegh Saghatelyan v. Armenia (application no. 23086/08) concerned an opposition activist’s allegation of a politically motivated crackdown on 1 March 2008 following a wide-scale protest against the presidential elections. He complained in particular that he had been ill-treated by the police, that his arrest had been unlawful and that the entire criminal case then brought against him had been fabricated. He had eventually been convicted for assaulting two police officers and illegally carrying a knife.

Decision of the Court: The Court found that the protest of 1 March 2008 had been peaceful. The Government had not provided any evidence to prove their allegations that the demonstrators had planned to arm themselves to instigate mass disorder. The courts examining Mr Saghatelyan’s case had not dealt with the question of who had been the first to attack, which would have proved any violent intentions. Moreover, various international and domestic bodies had produced credible reports casting doubt on the official account of events. Therefore the dispersal of the demonstration and Mr Saghatelyan’s prosecution, detention and conviction had interfered with his right to freedom of peaceful assembly. Even assuming that those measures had complied with domestic law and had been justified by the need to prevent disorder and crime, they had not been necessary in a democratic society. Overall, the police operation had been disproportionate. It had lacked transparency as to its planning, organisation and command. Indeed, there had been striking contradictions in the purpose of the operation, the authorities first explaining that it had been to disperse the protest, then that it had been necessary to carry out an inspection for weapons. According to credible reports, the police had given no warnings to disperse and had used unjustified and excessive force. For Mr Saghatelyan, the charges against him, drafted in very general terms, had not been backed up by any evidence. He had therefore apparently been prosecuted and detained for simply having actively participated in, and possibly organised, the assembly. The courts had then failed to establish the facts thoroughly and objectively, basing their judgments entirely on police testimony. Undoubtedly, such measures could only have discouraged the applicant, other opposition supporters and the public at large from participating in demonstrations in the future. There had therefore been a violation of Article 11 of the Convention.

Case law from Luxembourg in criminal matters: the European Court of Justice (CJEU)

CJEU, 19 September 2018 – judgement in case C-310/18 PPU – Milev: Judicial cooperation in criminal matters — Directive (EU) 2016/343 — Presumption of innocence — Public references to guilt — Remedies — Procedure for reviewing the lawfulness of pre-trial detention)


This request for a preliminary ruling concerns the interpretation of Article 3, Article 4(1) and Article 10 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1), read in the light of recitals 16 and 48 thereof, as well as Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The request has been made in criminal proceedings against Mr Emil Milev concerning the continuation of his pre-trial detention.

Ruling of the Court: Article 3 and Article 4(1) of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings must be interpreted as not precluding the adoption of preliminary decisions of a procedural nature, such as a decision taken by a judicial authority that pre-trial detention should continue, which are based on suspicion or on incriminating evidence, provided that such decisions do not refer to the person in custody as being guilty. However, that directive does not govern the circumstances in which decisions on pre-trial detention may be adopted.


CJEU, 19 September 2018 - judgement in case C-327/18 PPU – RO: Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Grounds for non-execution — Article 50 TEU — Warrant issued by the judicial authorities of a Member State that has initiated the procedure for withdrawal from the European Union — Uncertainty as to the law applicable to the relationship between that State and the Union following withdrawal

This request for a preliminary ruling concerns the interpretation of Article 50 TEU and of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the Framework Decision’). The request has been made in connection with the execution, in Ireland, of two European arrest warrants issued by the courts of the United Kingdom of Great Britain and Northern Ireland with respect to RO.

Ruling of the Court: Article 50 TEU must be interpreted as meaning that mere notification by a Member State of its intention to withdraw from the European Union in accordance with that article does not have the consequence that, in the event that that Member State issues a European arrest warrant with respect to an individual, the executing Member State must refuse to execute that European arrest warrant or postpone its execution pending clarification of the law that will be applicable in the issuing Member State after its withdrawal from the European Union. In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union. 

Texts are based on the press releases of the European Court of human rights 





Geen opmerkingen:

Een reactie posten