This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 weeks 51-52

HEARSAY EVIDENCE

Conclusion of judicial dialogue between ECHR and UK courts on use of hearsay evidence - In its judgment in the case of Horncastle and Others v. the United Kingdom  the European Court of Human Rights held, unanimously, that there had been: no violation of Article 6 §§ 1 and 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 four applicants’ complaints that in admitting victims’ written statements as evidence against them at their criminal trials the domestic courts had violated their right to have examined witnesses who gave sole or decisive evidence against them.
The Court reiterated the principles established in its Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom (application nos. 26766/05 and 22228/06) in which it had agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6 § 1. Where hearsay evidence was sole or decisive, the question was whether there were adequate counterbalancing factors in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence. In relation to the first two applicants, the Court found that even assuming that the written statement of the victim had been “decisive”, there had been sufficient safeguards in domestic law to protect their right to a fair trial. In relation to the second two applicants, the Court concluded that the statement had been neither the sole nor decisive basis of their conviction and, accordingly, that there had been no violation of their defence rights. This judgment concludes the judicial dialogue on the admissibility of hearsay evidence in criminal trials which commenced with the delivery of this Court’s Chamber judgment in Al-Khawaja and Tahery. The Supreme Court, when hearing the present applicants’ appeal, examined that judgment and invited the Grand Chamber to accept a request to rehear the case. The subsequent Grand Chamber judgment in Al-Khawaja and Tahery agreed with the Supreme Court that the sole or decisive rule should not be applied in an inflexible way. 

"130.  As the Court has consistently underlined, the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997‑III; Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010; and Al-Khawaja and Tahery, cited above, § 118).

131.  In Al‑Khawaja and Tahery, cited above, § 118, the Grand Chamber reiterated that the guarantees in paragraph 3 (d) are specific aspects of the right to a fair hearing set forth Article 6 § 1 which have to be taken into account in the assessment of the overall fairness of proceedings. In making this assessment, the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses. Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Al-Khawaja and Tahery, cited above, § 118).

132.  The Grand Chamber set out two requirements which flow from the general principle identified. First, it has to be established that there was a good reason for the non-attendance of the witness. Second, even where there was a good reason, where a conviction is based solely or to a decisive extent on statements made by a person whom the accused has had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of Article 6. Accordingly, when the evidence of an absent witness is the sole or decisive basis for a conviction, sufficient counterbalancing factors are required, including the existence of strong procedural safeguards, which permit a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).

133.  It is plain that, where a witness has died, in order for his evidence to be taken into account it will be necessary to adduce his witness statement if his evidence is to be taken into account (see Al-Khawaja and Tahery, cited above, § 121). Where absence is the result of fear, a distinction can be drawn between fear attributable to threats or other actions of the defendant or those acting on his behalf and fear attributable to a more general fear of what will happen if the witness gives evidence at trial. In the former case, it is appropriate to allow a statement of that witness to be introduced at trial even if it is the sole or decisive evidence against the defendant, because to allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. As to the latter, there is no requirement that a witness’s fear be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial. This does not mean, however, that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine, first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence. In all cases, where no prior examination of the witness has taken place, the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. The trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable (see Al-Khawaja and Tahery, cited above, §§ 122-125).

134.  As far as the “sole or decisive” rule is concerned, as was pointed out by the Grand Chamber in its judgment in Al-Khawaja and Tahery, “decisive” in this context means more than “probative” or that, without the evidence, the chances of a conviction would recede and the chances of an acquittal advance. It should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be “decisive” (see Al-Khawaja and Tahery, cited above, § 131).

135.  In respect of the need for counterbalancing factors where evidence is deemed to be sole or decisive, the Court has found that the safeguards contained in the 2003 Act, supported by section 78 PACE and the common law, are in principle strong safeguards designed to ensure the fairness of criminal proceedings (see Al-Khawaja and Tahery, cited above, § 151)."

Delaying access to a lawyer during police questioning of 21 July London bombers and an accomplice was justified and did not prejudice their trials - In  the case of Ibrahim and Others v. the United Kingdom the ECtHR held, by six votes to one, that there had been no violation of Article 6 § 1 and 3 (c) (right to a fair trial and right to legal assistance) of the European Convention on Human Rights - On 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene and a police investigation immediately commenced. The first three applicants, Mr Ibrahim, Mr Mohammed and Mr Omar, were arrested on suspicion of having detonated three of the bombs. Mr Abdurahman, the fourth applicant, was initially interviewed as a witness in respect of the attacks but it subsequently became apparent that he had assisted one of the bombers after the failed attack and, after he had made a written statement, he was also arrested. All four applicants were later convicted of criminal offences. The case concerned the temporary delay in providing the applicants with access to a lawyer, in respect of the first three applicants, after their arrests, and, as regards the fourth applicant, after the police had begun to suspect him of involvement in a criminal offence but prior to his arrest; and the admission at their subsequent trials of statements made in the absence of lawyers. 
The Court noted that two weeks earlier, suicide bombers had detonated their bombs on the London transport system, killing fifty-two people and injuring countless more. It was satisfied that, at the time of the four applicants’ initial police interviews, there had been an exceptionally serious and imminent threat to public safety, namely the risk of further attacks, and that this threat provided compelling reasons justifying the temporary delay in allowing the applicants’ access to lawyers. It also found that no undue prejudice had been caused to the applicants’ right to a fair trial by the admission at their trials of the statements they had made during police interviews and before they had been given access to legal assistance. The Court took into account the counterbalancing safeguards contained in the national legislative framework, as applied in each of the applicants’ cases; the circumstances in which the statements had been obtained and their reliability; the procedural safeguards at trial, and in particular the possibility to challenge the statements; and the strength of the other prosecution evidence. In addition, as concerned the fourth applicant, who had made self-incriminating statements during his police interview, the Court emphasised the fact that he had not retracted his statements even once he had consulted a lawyer but had continued to rely on his statement in his defence up until his request that it be excluded at trial.

DISSENTING OPINION OF JUDGE KALAYDJIEVA

"The applicants in the present joined cases argued (see paragraph 169 of the judgment) that “the right to legal advice was not merely a protection against coercion and ill‑treatment: there was a clear link between the right to legal advice and the right against self-incrimination running through the case-law of the Court both before and after Salduz” (see Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008). They furthermore maintained (see paragraph 170) that “there was no relevance in the distinction drawn by the Government between telling lies and making incriminating admissions or staying silent ... Any such distinction had no basis in domestic law or the Court’s case-law”. The principles set out, in particular, in the case of Saunders v. the United Kingdom (17 December 1996, § 71, Reports 1996‑VI) “made it clear that the right not to incriminate oneself could not reasonably be confined to admissions”. In their view such a distinction “would have uncertain and unpredictable consequences”.
I regret the fact that the majority of my learned colleagues seem to have failed to address these complaints jointly as raised by the applicants. As in Gäfgen v. Germany ([GC], no. 22978/05, ECHR 2010), the complaints of insufficient safeguards for the privilege against self-incrimination were separated from the allegations that the police had deliberately impeded access to defence lawyers until after the applicants had been questioned and had made statements concerning the offences of which they were suspected.
While the case-law of this Court sees the privilege against self-incrimination as one of the basic principles of Article 6 of the Convention, there is little doubt that the “minimum right to legal assistance” enshrined in Article 6 § 3 (c) serves as one of the basic guarantees for the protection of this privilege. In the present case, the majority agreed with the domestic authorities and the Government that “the police were concerned that access to legal advice would lead to the alerting of other suspects” (see paragraph 201) and were satisfied that, at the time of the “safety interviews”, the delayed access to legal advice was justified by “the need to obtain, as a matter of critical urgency, information on any further planned attacks and the identities of those potentially involved in the plot, while ensuring that the integrity of the investigation was not compromised by leaks”, a need which “was clearly of the utmost compelling nature” (see paragraph 200). While I am fully aware of the difficult and urgent situation, which called for “safety interviews” for the purposes of obtaining information that was urgently necessary to remove imminent danger and save the lives of many, I find myself unable to follow the argument that preventing access to a lawyer may be justified for the purposes of “ensuring that the integrity of the investigation was not compromised by leaks”. This argument appears to be broadly dismissive of the very essence of the right guaranteed by Article 6 § 3 (c), being potentially applicable to any investigation proceedings, and reflects a generalised view that lawyers constitute a threat to justice by definition.
 I also regret that there is no analysis as to whether or not the situation with which the applicants were confronted during the “safety interviews” – the applicable legal framework, which appears to leave no space for the right to remain silent, the erroneous or omitted cautions against self-incrimination, taken together with the absence of legal assistance –, amounted to “coercion or oppression in defiance of the suspect’s will”. A proper analysis of this situation may lead to the conclusion that, taken together, these circumstances inevitably trap suspects in a situation where both their silence and their lies may be lawfully interpreted to their detriment, thus leaving space only for confession. The compatibility of this situation with the principles in Saunders is questionable. It appears that in this regard the majority were satisfied with the observation that they were neither arrested, nor subjected to any ill-treatment. I am not convinced that this suffices for the purposes of ruling out “coercion” within the meaning of the Court’s case-law. In this regard I would simply mention the principles reiterated in Gäfgen (cited above, § 168) where, with regard to “the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterate[d] that these [were] generally recognised international standards which [lay] at the heart of the notion of fair procedures under Article 6”. The Grand Chamber continued as follows:
“Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom [GC], 17 December 1996, § 68, Reports 1996-VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000-XII; and the judgment in Jalloh, cited above, § 100).”
Finally, the case raises yet again the issue of appropriate remedies in cases of infringement of the privilege against self-incrimination. Instead of clarifying the scope of this privilege and the appropriate remedies for its infringement, in the case of Gäfgen the Grand Chamber focused its examination on the Article 3 aspects of the case, albeit noting the provisions of other international instruments and the views of other courts concerning the “exclusionary rule” established for the protection of the privilege against self-incrimination. In this regard the Grand Chamber admitted that “in its case-law to date, it has not yet settled the question whether the use of such evidence will always render a trial unfair, that is, irrespective of other circumstances of the case”.
Having found that, in breach of the law, the fourth applicant Mr Ismail Abdurahman had been deliberately questioned without a proper caution against self-incrimination, the majority deemed it sufficient that this “did not give rise to undue prejudice to his defence rights” and in fact left the assessment of appropriate remedies to the national criminal courts.
In failing to analyse both whether the circumstances in the first three cases amounted to coercion to self-incrimination and what the appropriate remedies should be in established circumstances of self-incrimination, i.e. in the case of the fourth applicant, under the Convention rather than domestic law standards, I ask myself whether this Court’s scrutiny was at all necessary or appropriate, or was it in fact redundant, as falling outside the scope of the Court’s competence and even encroaching upon the domestic authorities’ margin of appreciation?"

Refusal to grant adoption of a child in kafala care was not in breach of respect for private and family life - case of Chbihi Loudoudi and Others v. Belgium - no violation of Article 8 (right to respect for private and family life) of the Convention concerning the refusal to grant the adoption and concerning the child’s residence status - The case concerned a refusal by the Belgian authorities to grant an application by Mr Chbihi Loudoudi and Ms Ben Said for the adoption of their Moroccan niece, for whom they were caring on the basis of kafala, an institution under Islamic law, defined as a voluntary undertaking to provide for a child’s welfare, education and protection. The Court found that the refusal to grant adoption was based on a law which sought to ensure, in accordance with the relevant Hague Convention, that international adoptions took place in the best interests of the child and with respect for the child’s private and family life, and that the Belgian authorities could legitimately consider that such a refusal was in the child’s best interests, by ensuring the maintaining of a single parent-child relationship in both Morocco and Belgium (i.e. the legal parent-child relationship with the genetic parents). In addition, reiterating that the Convention did not guarantee a right to a particular residence status, it observed that the only real obstacle encountered by the girl had been her inability to take part in a school trip. That difficulty, owing to the absence of a residence permit between May 2010 and February 2011, did not suffice for Belgium to be required to grant her unlimited leave to remain in order to protect her private life. 

Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.