This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 43

• Inability to make informed choice of lawyer undermined rights of the defence and fairness of proceedings as a whole
• Conviction of an officer in the State security services for genocide was not justified
• Photographer’s apprehension and conviction of disobeying the police while covering a demonstration, without a sanction, was proportionate

Inability to make informed choice of lawyer undermined rights of the defence and fairness of proceedings as a whole - case of Dvorski v. Croatia - a violation of Article 6 §§ 1 (right to a fair trial) and 3 (c) (right to legal assistance of one’s own choosing) of the European Convention on Human Rights - The case concerned the refusal by the police to allow a lawyer hired by the applicant’s parents to represent him while he was being questioned at a police station on suspicion of multiple murder, armed robbery and arson. The applicant confessed to the offences after signing a power of attorney authorising another lawyer to represent him. The Court found that the police had not informed the applicant either of the availability of the lawyer hired by his family or of the lawyer’s presence at Rijeka Police Station. During questioning the applicant had confessed to the offences with which he was charged, and his confession had been admitted in evidence at his trial. The Court observed that the national courts had not properly addressed that issue, and in particular had failed to take the necessary measures to ensure a fair trial.

Conviction of an officer in the State security services for genocide was not justified - case of Vasiliauskas v. Lithuania - a violation of Article 7 (no punishment without law) ECHR - The case concerned the conviction in 2004 of Mr Vasiliauskas, an officer in the State security services of the Lithuanian Soviet Socialist Republic from 1952 to his retirement in 1975, for the genocide in 1953 of Lithuanian partisans who resisted Soviet rule after the Second World War. Mr Vasiliauskas notably complained that the wide interpretation of the crime of genocide, as adopted by the Lithuanian courts in his case, had no basis in the wording of that offence as laid down in public international law. He submitted in particular that he had been convicted on the basis of Article 99 of the new Lithuanian Criminal Code which, providing for criminal liability for genocide, includes political groups – such as partisans – among the groups that could be considered as victims of genocide. However, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (“Genocide Convention”) does not include political groups among those protected.

The Court found in particular that it was clear that Mr Vasiliauskas’ conviction had been based upon legal provisions that had not been in force in 1953, and that such provisions had therefore been applied retroactively. The retrospective application of the criminal law to an accused’s disadvantage being prohibited under the European Convention, it therefore had to be established whether Mr Vasiliauskas’ conviction had been based upon international law as it stood in 1953. Although the offence of genocide had been clearly defined in the international law (notably, it had been codified in the 1948 Genocide Convention, approved by the United Nations in 1948 and signed by the Soviet Union in 1949) and therefore accessible to Mr Vasiliauskas, the Court took the view that his conviction could not have been foreseen under international law as it stood at the time of the killings of the partisans. Notably, international treaty law had not included a “political group” in the definition of genocide and customary international law was not clear on the definition (opinions being divided). Nor was the Court convinced that the Lithuanian courts’ interpretation of the crime of genocide in Mr Vasiliauskas’ case had been in accordance with the understanding of the concept of genocide as it stood in 1953: even though the courts had rephrased his conviction to attribute Lithuanian partisans to “representatives of the Lithuanian nation”, that is a national group which is protected under the Genocide Convention, no explanation had been given as to what the notion “representatives” entailed or how historically or factually the Lithuanian partisans had represented the Lithuanian nation. Indeed, the definition of the crime of genocide in Lithuanian law had not only had no basis in the wording of that offence as expressed in the 1948 Genocide Convention, but had also been gradually enlarged during the years of Lithuania’s independence. Mr Vasiliauskas’ conviction of genocide had not therefore been justified.

Photographer’s apprehension and conviction of disobeying the police while covering a demonstration, without a sanction, was proportionate - case of Pentikäinen v. Finland - no violation of Article 10 (freedom of expression) ECHR - The case concerned the apprehension of a media photographer during a demonstration and his subsequent detention and conviction for disobeying the police. The Court found that the Finnish authorities had based their decisions on relevant and sufficient reasons and had struck a fair balance between the competing interests at stake. They had not deliberately prevented or hindered the media from covering the demonstration. Mr Pentikäinen had not been prevented from carrying out his work as a journalist either during or after the demonstration. In particular, he had not been apprehended for his work as a journalist as such but for refusing to obey police orders to leave the scene of the demonstration. His equipment had not been confiscated and he had not been sanctioned.

DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGES SPIELMANN, LEMMENS AND DEDOV

"(-) 14. Today’s Grand Chamber judgment is a missed opportunity for the Court to reinforce, in line with its consistent case-law, the special nature and importance of the press in providing transparency and accountability for the exercise of governmental power by upholding the rights of journalists to observe public demonstrations or other Article 11 activities effectively and unimpeded, so long as they do not take a direct and active part in hostilities. Recent events in many European countries demonstrate, more than ever, the necessity of safeguarding the fundamental role of the press in obtaining and disseminating to the public information on all aspects of governmental activity. That is, after all, one of the crucial elements of the democratic ideal protected by the European Convention on Human Rights."