This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 28

Blogpost written by Marc de Werd -  Courtesy Press Service of the European Court of Human Rights in Strasbourg

LIFE IMPRISONMENT is any sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life or until paroled. This sentence does not exist in all countries. Portugal was the first country in the world to abolish life imprisonment by the prison reforms of Sampaio e Melo in 1884. However, where life imprisonment is a possible sentence, there may also be formal mechanisms to request parole after a certain period of imprisonment. This means that a convict could be entitled to spend the rest of the sentence (that is, until he or she dies) outside prison. Early release is usually conditional depending on past and future conduct, possibly with certain restrictions or obligations. In contrast, when a fixed term of imprisonment has ended, the convict is free.In England and Wales, life imprisonment is a sentence which lasts until the death of the prisoner, although in most cases the prisoner will be eligible for parole (officially termed "early release") after a fixed period set by the judge. This period is known as the "minimum term" (previously known as the "tariff"). In some exceptionally grave cases however, a judge may order that a life sentence should mean life by making a "whole life order." 

The foregoing serves as an introduction to this week's case of Vinter and Others v. the United Kingdom. The Court (Grand Chamber) held, by 16 votes to one, that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention.The case concerned three applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they had no hope of release. The Court found in particular that, for a life sentence to remain compatible with Article 3, there had to be both a possibility of release and a possibility of review. It noted that there was clear support in European and international law and practice for those principles, with the large majority of Convention Contracting States not actually imposing life sentences at all or, if they did, providing for a review of life sentences after a set period (usually 25 years’ imprisonment). The domestic law concerning the Justice Secretary’s power to release a person subject to a whole life order was unclear. In addition, prior to 2003 a review of the need for a whole life order had automatically been carried out by a Minister 25 years into the sentence. This had been eliminated in 2003 and no alternative review mechanism put in place. In these circumstances, the Court was not persuaded that the applicants’ whole life sentences were compatible with the European Convention. 

The Court held in general in respect of life sentences that Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds. The Court observes:

"that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter (-). It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention. (-) Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.

 In the present cases the Court found (§ 129) that:

“given the present lack of clarity as to the state of the applicable domestic law as far as whole life prisoners are concerned, the Court is unable to accept the Government’s submission that section 30 of the 1997 Act can be taken as providing the applicants with an appropriate and adequate avenue of redress, should they ever seek to demonstrate that their continued imprisonment was no longer justified on legitimate penological grounds and thus contrary to Article 3 of the Convention. At the present time, it is unclear whether, in considering such an application for release under section 30 by a whole life prisoner, the Secretary of State would apply his existing, restrictive policy, as set out in the Prison Service Order, or would go beyond the apparently exhaustive terms of that Order by applying the Article 3 test set out in Bieber. Of course, any ministerial refusal to release would be amenable to judicial review and it could well be that, in the course of such proceedings, the legal position would come to be clarified, for example by the withdrawal and replacement of the Prison Service Order by the Secretary of State or its quashing by the courts. However, such possibilities are not sufficient to remedy the lack of clarity that exists at present as to the state of the applicable domestic law governing possible exceptional release of whole life prisoners.”

Note that the Court – very much aware of potential strong criticism in the UK (and elsewhere) towards its 'liberal' judgments – explains in § 131 to the public at large that the finding of a violation in the applicant’s cases “cannot be understood as giving them the prospect of imminent release and that it would still be possible that they could continue to be detained on grounds of dangerousness.” But will it help enough? For some disturbing headlines already see: The Sun Victory for evil, The Times: Strasbourg’s judges have yet again abused their powers and The Guardian: Britain faces new clash with Europe over whole-life jail sentences. Also see Joshua Rozenberg's well balanced article in The Guardian Whole-life jail sentences: what are the government's options? 

As an aside I'd like to point at judge Villiger's interesting partly dissenting opinion. He agrees that  “of course” an irreducible sentence raises different and at times highly problematic issue. But "as a judge bound by the Convention" he feels obliged to analyse this issue solely through the prism of Article 3. The judgment in his view assesses the situation for all prisoners serving whole life orders, thus in fact providing for a generalised interpretation of Article 3. However, Article 3 would normally require an individualised assessment of each applicant’s situation. "The judgment provides for an abstract assessment and fails to undertake a concrete examination of the each applicant’s situation at the time when it is examining the case." 

From that point of view - indeed - it is remarkable that the Court chose the case of Mr Vinter, who has been serving his whole life sentence “only for just over” five years, for its abstract ruling. Is not this in the essence the problem Court's critics in the UK have with the Court's rulings? And if we take away false rhetorics don't they have some kind of constitutional law(ish) point? Being a judge myself I feel not insensitive to these Montesquivian hesitations. But on the other hand: would the criticism in the UK have been any different if the Court had reached its conclusion otherwise, i.e. by assessing the individual situation of Mr Bamber, who has been serving his sentence for nearly twenty-seven years, or Mr Moore, for nearly seventeen years? Probably these nuances too would be lost on the front pages of the tabloids. (Which brings us to another topic: how to communicate effectively sensitive moral judgments to the general public?)

Many good and interesting blog posts of course on this judgment this week (and probably many more to come): Carl Gardner, Vinter, Bamber & Moore v UK: whole life prisoners must have the “experience of hope”; ObiterJ,  Vinter and others v UK ~ European Court of Human Rights;  Rosalind English, Convicted murderers win Article 3 case against whole life sentences in Strasbourg, Marion Isobel, Case Watch: European Court Ruling on Life Sentences Sets New Standard, Adam Wagner, NOT AGAIN! ‘EU Judges’ Behind ‘Victory For Evil’, Says Sun, Claire Overman Vinter v UK and Whether Life Should Mean Life. Nicolas Hervieu, Droits des détenus (Art. 3 CEDH) : Les peines perpétuelles au prisme européen de la dignité et de la réinsertion sociale des détenus.

Also see this video: Vinter v UK - The Right to Hope and the Whole Life Tariff - (Mrs Padfield is Reader in Criminal and Penal Justice at the University of Cambridge.)

DETENTION

In the case of Varnas v. Lithuania the applicant, Tomas Varnas, is a Lithuanian national who was born in 1975 who is currently serving a prison sentence in Vilnius. He complained that during the more than three years he spent in pre-trial detention he was denied conjugal visits with his wife, despite their repeated requests. He also complains that while he was not allowed such visits, convicted prisoners were. The Court held that indeed there had been a violation of Article 14 in conjunction with Article 8 of the Convention. Also read the ECtHR's Fact sheet on Detention conditions and treatment of prisoners and Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules 

WITNESSES

The cases of Sică v. Romania and Bobeş v. Romania (only in French) are in line with the well known Al-Khawaja and Tahery v. UK judgment. In Sică the applicant complained in particular that he had been convicted of drug trafficking without having had an opportunity to examine the witnesses for the prosecution. In Bobeş the applicant was an accountant in a commercial company of which Ms G.V. was the director and main shareholder. In November 2000, for health reasons, Ms G.V. delegated the running of the company to the applicant for one year. In January 2002 she brought criminal proceedings against Ms Bobeş for fraud, forgery and fraudulent management. The applicant complained of a violation of her right to a fair trial, arguing that she had not been allowed to have Ms G.V. examined as a witness in spite of the fact that it had been on the strength of her complaint and statements that she had been convicted. The Court found violations of Article 6 §§ 1 and 3 (d) of the Convention in both cases. It referred to its earlier Al-Khawaja and Tahery v. UK judgment, pointing out that in this kind of cases the answer to the question whether or not a witness must be examined consists of three sub questions:

“Tout d’abord, elle doit vérifier si l’impossibilité pour la défense d’interroger ou de faire interroger un témoin à charge est justifiée par un motif sérieux. Ensuite, lorsque l’absence d’interrogation des témoins est justifiée par un motif sérieux, les dépositions de témoins absents ne doivent pas en principe constituer la preuve à charge unique ou déterminante. Toutefois, l’admission à titre de preuve de la déposition constituant l’élément à charge unique ou déterminant d’un témoin que la défense n’a pas eu l’occasion d’interroger n’emporte pas automatiquement violation de l’article 6 § 1 de la Convention : la procédure peut être considérée comme équitable dans sa globalité lorsqu’il existe des éléments suffisamment compensateurs des inconvénients liés à l’admission d’une telle preuve pour permettre une appréciation correcte et équitable de la fiabilité de celle-ci.”

The Court held earlier in the Al-Khawaja and Tahery judgment (§ 147):

“where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.”

In Rudnichenko v. Ukraine the Court held (but not for the first time) that prior to the question whether evidence is sole or decisive, the requirement that there be a good reason for admitting the evidence of an absent witness must be examined. Even where the evidence of an absent witness has not been sole or decisive, the Court has still found a violation of Article 6 §§ 1 and 3 (d) when no good reason has been shown for the failure to have the witness examined. This is because, as a general rule, witnesses should give evidence during the trial and all reasonable efforts should be made to secure their attendance. Thus, when witnesses do not attend to give live evidence, there is a duty to enquire whether that absence is justified. 

COMPENSATION FOLLOWING ACQUITTAL 

In Allen v. the United Kingdom (Grand Chamber) the case concerns the refusal to grant compensation to a mother acquitted of the manslaughter of her four-month old son following the quashing of her conviction. The Court found no violation of Article 6 § 2 of the Convention (presumption of innocence) and held in particular that the legislation under which Ms Allen had requested compensation did not require her criminal guilt to be assessed and did not question her innocence. I haven't been able to find out yet what's new about this GC-judgment. The steps that the Court takes (and took in the past) are the following:

"(103) the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of criminal proceedings in order to ensure that, as regards any charge which was not proven, the innocence of the person in question is respected (-).'

"(-) the applicant must demonstrate the existence of a link, as referred to above, between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment; to engage in a review or evaluation of the evidence in the criminal file; to assess the applicant’s participation in some or all of the events leading to the criminal charge; or to comment on the subsisting indications of the applicant’s possible guilt (-)." 

"(123) if the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention." 

In his separate opinion Judge De Gaetano - arguing that Article 6 § 2 of the Convention has no place whatsoever in civil compensation proceedings, whether following upon acquittal in criminal proceedings or where no criminal proceedings have ever been initiated - writes 

"To state that it all depends on whether “the national decision on compensation [contains] a statement imputing criminal liability to the respondent party” (§ 123) – which in effect means “it all depends on what you say and how you say it” – is just playing with words and most unhelpful."

I agree. If we're left with semantics only, not excluding the possibility that not outspoken thoughts in the heads of judges on criminal liability might play a role in civil proceedings about compensation, than this ruling does not satisfy. A question that I find intriguing is if the same judges that acquitted the defendant can also decide on his compensation (which is not uncommon throughout Europe's courts).

  TRADE UNION FOR PRIESTS

 

In its Grand Chamber judgment in the case of Sindicatul “Păstorul cel Bun” v. Romania the Court held, by a majority, that there had been no violation of Article 11 (freedom of assembly and association) of the Convention. The case concerned the refusal by the Romanian State of an application for registration of a trade union formed by priests of the Romanian Orthodox Church Păstorul cel Bun. Whereas the Court had held in its Chamber judgment that the Dolj County Court had not taken sufficient account of all the relevant arguments and had justified its refusal to register the union on purely religious grounds based on the provisions of the Church’s Statute, the Grand Chamber took the view that the County Court’s decision had simply applied the principle of the autonomy of religious communities. The court’s refusal to register the union for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its own Statute. 

The Court held that in refusing to register the applicant union, the State had simply declined to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of denominational neutrality under Article 9 of the Convention. 

"161.  The central issue in the present case is the non-recognition of the applicant union. In the proceedings before the courts with jurisdiction to examine the union’s application for registration, the Archdiocese, which was opposed to its recognition, maintained that the aims set out in the union’s constitution were incompatible with the duties accepted by priests by virtue of their ministry and their undertaking towards the archbishop. It asserted that the emergence within the structure of the Church of a new body of this kind would seriously imperil the freedom of religious denominations to organise themselves in accordance with their own traditions, and that the establishment of the trade union would therefore be likely to undermine the Church’s traditional hierarchical structure; for these reasons, it argued that it was necessary to limit the trade-union freedom claimed by the applicant union.

165.  In this connection, the Court observes that it has frequently emphasised the State’s role as the neutral and impartial organiser of the practice of religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society, particularly between opposing groups (-). It can only confirm this position in the present case. Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them."

In the view of judges Spielmann, Villiger, López Guerra, Bianku, Møse and Jäderblom (joint partly dissenting opinion), the Grand Chamber should have found that the Dolj County Court’s decision denying the applicant union registration on account of the lack of permission from the bishop did violate its right to freedom of association under Article 11 of the Convention. 

“The drastic measure of refusing to register a trade union solely on the basis of part of its programme can only be justified in cases of serious threats or if the programme’s goals are incompatible with democratic principles or are manifestly unlawful (-). Furthermore, even after registration, the union’s members would still have remained within the administrative structure of the Church and subject to its internal regulations, which imposed special duties on them as members of the clergy. Nor would the Church or national authorities have been powerless to deal with any activities of the union contravening those special duties. Measures compatible with Article 11 § 2 of the Convention could certainly have been applied. Specifically, to address the perceived dangers alluded to by the Romanian Government regarding the applicant union’s potential right to strike – although this is certainly one of the most important union rights – the Grand Chamber judgment should have taken into account two aspects of the Court’s case-law: (1) the right to strike is not an absolute right (-), and (2) limitations on the right to strike may under certain circumstances be permissible in a democratic society (-).” 

For a good comment on this judgment: Frank Cranmer, Trades unions rights, the Romanian Orthodox Church and Article 11 ECHR:

"To conclude: in a case involving employment or trade union rights within a Church, to what extend should a court regard itself as bound by the ecclesiology and self-understanding of the Church in question? Only, I would suggest, when the situation is crystal clear from the facts and documentation in question. In Preston it was evident that in its constitutional documents the Methodist Church had set out its relationship with its presbyters in precise detail – and the SC accepted that as conclusive. In Sindicatul Păstorul cel Bun the fact that there were already two clerical and lay trades unions within the Church suggests that there was by no means that same degree of clarity.

Which must leave the applicants wondering, “if them, why not us?”."

 Also read the ECtHR's Factsheet on Trade union rights

FREEDOM OF ASSOCIATION

In Vona v.Hungary The applicant, Gábor Vona, is a Hungarian national who was born in 1978 and lives in Budapest. He was the chairman of the Hungarian Guard Association, an association with the stated aim of preserving Hungarian traditions and culture, which was dissolved by a court decision – ultimately upheld by the Supreme Court in December 2009 – because the association was involved in paramilitary parading in uniforms and military formations, intimidating the Roma population of certain small villages which it targeted. Mr Vona complains that the dissolution of the association violated his rights under Article 11 (freedom of assembly and association) of the European Convention on Human Rights.
  
The Court however found no violation and recalled that, as with political parties, the State was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent prejudice to the rights of others undermined the fundamental values upon which a democratic society rested and functioned. In this case, a movement created by Mr Vona’s association had led to demonstrations conveying a message of racial division, which, reminiscent of the Hungarian Nazi Movement (Arrow Cross), had had an intimidating effect on the Roma minority. Indeed, such paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the movement had been to remove the organisational backup provided by the association. 

"66.  In the Court’s view, the demonstration by political protagonists of their ability and willingness to organise a paramilitary force goes beyond the use of peaceful and legal means of articulating political views. In view of historical experience – such as that of Hungary in the wake of Arrow Cross power – the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race-based action must have an intimidating effect on members of a racial minority, especially when they are in their homes as a captive audience. For the Court, this exceeds the outer limit of the scope of protection secured by the Convention for expression (see Vajnai, loc. cit.) or assemblies, and amounts to intimidation, which is – as was put in the United States Supreme Court’s judgment in the Virginia v. Black case (see paragraph 31 above) – a true threat. The State is therefore entitled to protect the right to live without intimidation of the members of the target groups. This is even more so because they were singled out on a racial basis and were intimidated on account of their belonging to an ethnic group. In the Court’s view, a paramilitary march goes beyond the mere expression of a disturbing or offensive idea, since the message is accompanied by the physical presence of a threatening group of organised activists. Where an expression is accompanied by conduct, the Court considers that the level of protection generally granted to freedom of expression may be reduced vis-à-vis the important public-order interests related to the conduct. If the conduct associated with expression is intimidating, threatening or interferes with the free exercise or enjoyment by others of any right or privilege provided by the Convention on account of the other’s race, these considerations cannot be disregarded even in the context of Articles 10 and 11. (-)

71.  The Court is aware that the disbanding of the Movement and the Association represented quite a drastic measure. However, it is satisfied that the authorities nevertheless chose the least intrusive – indeed, the only reasonable – course of action to deal with the issue. Moreover, it is to be noted that the domestic authorities had previously called the attention of the Association to the unlawfulness of the Movement’s actions, which however resulted only in formal compliance (see paragraph 9 above) to an extent that further rallies took place during the on-going procedure (see paragraph 15 above) (-). In the Court’s view, the threat to the rights of others represented by the rallies of the Movement could be effectively eliminated only by removing the organisational backup of the Movement provided by the Association. Had the authorities acquiesced in the continued activities of the Movement and the Association by upholding their legal existence in the privileged form of an entity belonging under the law on associations, the general public might have perceived legitimation on the State’s side of this menace. This would have meant that the Association, benefiting from the prerogatives of a legally registered entity, could continue to support the Movement, and thereby the State would have indirectly facilitated the orchestration of its campaign of rallies. Furthermore, the Court notes that no additional sanction was imposed on the Association or the Movement, or their members who were in no way prevented from continuing political activities in other forms (-). In these circumstances, the Court finds that the measure complained of was not disproportionate to the legitimate aims pursued."

Judge Pinto de Albuquerque writes in his concurring opinion: “The Roma are what we strive to be: real Europeans”, Günter Grass once said.

The association’s racist goals and activities ignored that lesson. Having regard to the State’s obligation to criminalise the dissemination of racism, xenophobia or ethnic intolerance, prohibit every assembly and dissolve every group, organisation, association or party that promotes them, to the difference between the association’s statutory purposes and its practice, and to the existence of a clear and imminent danger resulting from its speech and activities, and after examining the decisions given by the competent authorities in the light of the narrow margin of appreciation applicable to the case, I conclude that the reasons on which the impugned dissolution was based were relevant and sufficient and that the interference did correspond to a pressing social need."

Also read the ECtHR's Factsheet on Roma and Travellers  

FREEDOM OF MOVEMENT

In the case of Khlyustov v. Russia the Court held that there had been a violation of Article 2 of Protocol No. 4 (freedom of movement) of the Convention. The case concerned the applicant’s complaint about a series of six-month travel bans imposed on him by the bailiffs’ service for his failure to pay a judgment debt to a private person.  The Court held in particular that the bailiffs’ service had not explained how the travel ban could serve to collect the debt or examined Mr Khlyustov’s individual situation. Moreover, the Russian courts had not assessed the justification and proportionality of the restrictions.