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I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.
Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).
Procedural requirements
A crucial takeaway from the climate change decisions is the importance of procedural hurdles. Both Carême and Duarte Agostinho failed with their applications on procedural grounds, most notably in the latter case due to a failure to exhaust domestic remedies.
The application in Carême was brought by the (then) mayor of the French coastal town of Grande Synthe in the Nord-Pas de Calais region of France, both in his official capacity as well as in a personal capacity. The case was dismissed because as mayor he was a representative of the French state and had moved to Brussels upon being elected to the European Parliament.
The application in Duarte Agostinho was brought by six Portuguese youngsters against Portugal and 32 other Contracting States. The case was dismissed for two connected reasons: the ECHR declined to apply its case law on extraterritoriality in the context of climate change, and the applicants had not exhausted domestic remedies in Portugal.
In that sense, the decision follows Communications adopted by the Committee on the Rights of the Child in 2021, where the Committee dismissed the cases for failure to exhaust domestic remedies. Like the ECHR, it rejected the suggestion that domestic remedies would be unreasonably prolonged and unlikely to bring effective relief.
Limited positive obligations
The case of Klimaseniorinnen was more successful: it was brought by senior citizens to challenge shortcomings in Swiss climate change policy and implementation. They had gone through the trouble of exhausting domestic remedies and the ECtHR was therefore able to give a decision on merits.
It found that states were under a positive obligation under Article 8 ECHR to provide effective protection from ‘serious adverse effects of climate change on their life, health, well-being and quality of life’ ([519]). They must adopt and enforce regulations that are capable of mitigating current and future impacts of climate change, specifically by having a plausible plan for the reduction of greenhouse gas emissions and in principle achieving carbon neutrality over the next three decades ([548]).
These positive obligations come with a considerable margin of appreciation, especially with respect to how any reduction in greenhouse gas emissions is accomplished. The limitedrequirements are only exceeded if states decide not to have any greenhouse gas reduction targets, or choose not to enforce them. Compliance is assessed wholistically on the basis of five criteria (with no individual criterion being decisive) ([551]): (1) specification of a timeline for carbon neutrality and the overall carbon budget of the state, (2) providing intermediate emission reduction targets and pathways, (3) evidencing state compliance with (or efforts towards achieving) the reduction targets, (4) updating the targets in line with the best available evidence, and (5) acting in good time and taking appropriate and consistent action in devising and implementing regulations and enforcement actions ([550]). In Klimaseniorinnen, Switzerland did not quantify a carbon budget, failed to set limits on greenhouse gas emissions, and exceeded its previous greenhouse gas emission reduction targets thus resulting in a violation ([573]).
That might appear as something of a sea change, a position notably taken by Judge Eicke in his dissenting opinion. He suggests that the Court has ([4]):
created a new right (under Article 8 and, possibly, Article 2) to “effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change (…)
This, he suggests, has no basis in the Convention and presents an illegitimate use of the living instrument interpretative approach. Judge Eicke may well disagree with this interpretation of Articles 2 and 8, but as I show below, he is wrong to suggest that Klimaseniorinnen is out of step with their conventional interpretation.
Environmental case law
As I outlined in Towards the Environmental Minimum the environmental case law of the ECtHR is rich, the interpretation and development of governing legal principles has a sound doctrinal basis and is overall normatively justified. The Court follows these principles quite closely in Klimaseniorinnen, but I shall bore you only with a brief sketch of some of the main features.
Environmental issues have been litigated under the ECHR since the 1960s (Dr S v. Germany App no 715/60) touching on a wide variety of issues. Article 8 ECHR specifically has been central to environmental cases for over forty years, gaining significant prominence in airportnoise emission cases and the case of Lopez Ostra v Spain. In its modern incarnation, Article 8 ECHR is characterised by (1) its broad scope, including in environmental cases, the (2) limited connectionrequired to an applicant’s private and family life, (3) the low threshold of severity necessary to engage the provision, especially where state authorities failed to uphold domestic law and (4) the absence of any need for applications to causally establish a detrimentalimpact on their health. Given this doctrinal background, anything other than applying Article 8 ECHR to the issue of climate change would have been a major departure from established doctrine. It is far from being a ‘new right’ by any reasonable measure.
The ECHR is also no stranger to requiring proactive risk management. It has long recognised positive obligations to monitor, regulate, and take some adequatemeasures to mitigate environmental hazards. The case of Öneryildiz v Turkey also highlights the well-established lex specialis relationship between Article 2 and Article 8 ECHR. The Court only engages with Article 2 where it determines that a death has occurred or an individual was exposed to serious mortal health risk, regardless of whether that risk materialises. Both the requirement to manage the risks flowing from climate change and the preference of the Court to deal with the issue under Article 8 ECHR follow neatly from these precedents.
The only sense in which Klimaseniorinnen clearly departs from previous environmental case law is on the broad margin of appreciation. The Court suggests that complicated questions of causality and attribution, as well as the difficulty of specifying concrete measures and balancing competing interests within available resources render climate change meaningfully different to other environmental cases [414] – [422], thus requiring a particularly broad margin of appreciation [457], [540] – [543] (which Judge Eicke presumably favours).
Conclusion
One may well disagree with the living instrument interpretative approach and the doctrinal path taken by the Court, or indeed with the specific outcome of Klimaseniorinnen. However, claims that it constitutes an illegitimate, doctrinal revolution, or a departure from established principles that empower the Court to dictate climate change policy and threaten the democratic process are misleading. If one is inclined to critique the ECtHR on a normative basis then Klimaseniorinnen is also a poor case study. The inconvenient truth is that states remain in the driving seat: democratic deliberation and international cooperation are the crucial and primary paths towards achieving carbon neutrality. Most states do not need to amend their existing policies in response to the judgment precisely because the ECtHR does not take tough political choices out of their hands.
Stefan Theil is Assistant Professor in Public Law at the University of Cambridge, and a Fellow of Sidney Sussex College. His book Towards the Environmental Minimum (CUP 2021) developed a dataset of ECHR environmental decisions which is freely available for educational and research purposes here.
Dr Hilary Cass, Chair of the Independent Review of gender identity services for children and young people, submitted her final report last Wednesday to NHS England. The Cass Review was commissioned in 2020 to look into the effectiveness of the gender care services provided to young people by the NHS. The report stressed that gender-affirming care is an extremely poorly researched area, and that the “toxicity” of the conversation surrounding transgender identity was severely hampering competent medical care for trans youth. Further research studies commissioned by the review were “thwarted” by the lack of cooperation from NHS gender care services, and the little evidence already available was insufficient to suggest that, in their current state, NHS gender services are producing positive outcomes. The report has made a total of 32 recommendations to the NHS – notably, Cass argues for a more holistic approach to gender care for children, factoring in support for mental health and neurodiversity. Taking a non-partisan stance, Cass noted in her report that ‘for some, the best outcome will be transition, whereas others may resolve their distress in other ways. Some may transition and then de/retransition and/or experience regret. The NHS needs to care for all those seeking support.’ The report follows news last month that puberty blockers will no longer be a routinely available treatment option on the NHS for children with gender dysphoria.
The Government announced last week that they will be closing another 150 asylum hotels by the beginning of May, following the closure of 50 in January and a further 50 by March. Home Secretary James Cleverly stated that the process will ‘keep going until the last hotel is closed’. Concerns have been raised regarding the impact that the asylum hotel closures may have on housing services for local councils – Chair of the Local Government Association, Shaun Davies, has suggested that ‘councils are becoming increasingly concerned over the numbers of asylum seekers presenting as homeless, which is likely to dramatically increase when Home Office accommodation is withdrawn.’ Charity Refugee Council published a report last week revealing that official Government statistics show a 239% increase in the number of households requiring homelessness support from local authorities following eviction from Home Office asylum support accommodation. The Government statement from last week ends: ‘Ultimately, the best way to save money is by deterring people from coming to the UK illegally in the first place, and our partnership with Rwanda intends to do just that’.
The European Parliament voted to pass a new pact on migration and asylum last Thursday. The new laws brought in through the pact have been ten years in the making and are intended to provide a ‘robust legislative framework’ that ‘puts humanity first’. The pact, comprised of a series of 5 closely related laws, was passed by a narrow margin – the laws received an average of 300 votes for to 270 against. The laws cover a variety of issues including biometric data collection, detention regulations, and national security. The pact establishes a system of ‘mandatory solidarity’ between EU member states, seeking implement procedures which will divide responsibility for migration throughout the EU bloc. The pact has already been criticised on both sides of the political spectrum: Amnesty International have claimed the pact will cause a ‘surge in suffering’, while Jordan Bardella, President of France’s far-right party National Rally, called the pact ‘terrible’ and asked voters to give it the ‘worst possible defeat’ when France heads to the polls in June. The President of the European Parliament, Roberta Metsola, admitted that the pact ‘will not solve everything overnight’, but argued that ‘it is 10 giant leaps forward’.
In the Courts
Last Tuesday, the European Court of Human Rights delivered a judgment that, for the first time, held that government climate inaction constituted a breach of human rights under the ECHR. A group of Swiss older women – as part of the activist group KlimaSeniorinnen, Senior Women for Climate Protection – brought the case to the Court. They alleged that Switzerland’s poor climate policies has put them at increased risk of death during heat waves caused by climate change. The judgment confirms that the convention places countries under positive obligations to take effective and timely measures to fight climate change; finding a breach of Article 8 by sixteen votes to one, the Court held that Article 8 confers a right upon citizens to be protected from the ‘serious adverse effects of climate change on lives, health, wellbeing, and quality of life’. The Court also found unanimously that there had been a breach of Article 6 § 1 (access to court) as domestic courts in Switzerland had not taken the complaints of the KlimaSeniorinnen sufficiently seriously. Though the Court also dismissed two other cases making similar arguments for issues of admissibility, six other climate cases previously adjourned can now be fully considered by the Court in light of this historic decision. The case was discussed in more detail earlier this week on the latest episode of Law Pod UK, available here.
The Supreme Court of Arizona ruled last Tuesday that a near-total ban on abortion can come back into force following the repeal of Roe v Wade. The law in question was originally established in 1864 and bans all abortions with no exceptions but to save a woman’s life. It was stated in judgment that the case is only one of ‘statutory interpretation – it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the law’s] constitutionality, which is not before us’. The judges ruled that, in the absence of any legislation restricting the law or authorising abortion, and in light of the repeal of Roe v Wade, the law was enforceable. Despite this, the Supreme Court did delay enforcement for two weeks to allow the plaintiffs to commence further challenges against the law – in particular with regard to its constitutionality – in the lower courts. Katie Hobbs, Governor of Arizona, has come out against the judgment. In an official statement released after the ruling, she stated: ‘I will not let overzealous county attorneys take this as an opportunity to target any individual. As long as I am Governor, no Arizonan will be prosecuted by extremist county attorneys for seeking abortion care’. She has reiterated that an Executive Order she passed last year will continue to stand, which centralises all abortion-related prosecutions to Democrat Attorney General, Kris Mayes, and prohibits Arizona state agencies from assisting in abortion-related investigations.
In a judgment handed down by the Upper Tribunal (Immigration and Asylum Chamber) last week, the Court held that Home Office decisions to refuse to grant family reunion visas to refugees feeling Gaza without biometric checks were ‘irrational and unreasonable’. The applicants had requested their applications be substantively decided in advance of the submission of biometric data, since, as a result of the ongoing conflict, the visa centre in Gaza is not functioning. The nearest centre conducting biometric checks is in Cairo, Egypt. The Home Office policy required that for visas to be approved without biometric data, applicants must prove they face a ‘personal risk of harm, which is separate to the level of risk faced by the wider population’. Jackson J stated that he does ‘not consider that in the context of the conflict in Gaza […] that it is necessary for a person to show that they are specifically targeted to be able to establish that they are at risk due to their personal circumstances.’ The Court thus held that the Home Office policy was a disproportionate infringement on the Palestinian families’ right to private and family life, and thus in breach of Article 8 ECHR.
Yesterday (Tuesday 9th of April) the European Court of Human Rights in Strasbourg handed down three judgments from the Grand Chamber. Two of the applications were rejected on admissibility grounds. The third, a representative action by an NGO against the Swiss government, succeeded. It has caused something of a stir, to say the least.
The Strasbourg Court has broken new ground in finding that Switzerland has breached Article 8 of the ECHR, a provision which was drafted to protect the right to private and family life. In the case of Verein Klimaseniorinnen Schweiz and others v Switzerland, 16 of the 17 member panel concluded that Article 8 encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
The case of Duarte Agostinho and five others v Portugal and 32 other states was one of the applications considered by the Grand Chamber. Emma Louise Fenelon advised Save the Children in its third party intervention in this case.
The new and wide-ranging Serious Disruption Prevention Orders (SDPOs) introduced by the Public Order Act 2023 came into force on Friday. As part of the Government’s attempt to ‘crack down’ on protesters ‘dedicated to wreaking havoc’, the police will now be able to apply to courts for an order to place restrictions on protesters’ locations, associations with others, online activity, and more. Breaching an order will be a criminal offence carrying up to six months’ imprisonment and an order can be made against anyone who has previously committed ‘protest-related offences’, including the many newly criminalised by the Public Order Act itself. Liberty have previously criticised SDPOs as an ‘unprecedented and highly draconian measure, which could amount to a ban on named individuals’ fundamental right to protest’.
Scotland’s new laws on hate crime came into force last Monday. The Hate Crime and Public Order (Scotland) Act both consolidates existing hate crime offences and creates a new offence of ‘threatening or abusive behaviour intended to stir up hatred’ on the basis of ‘age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics’. A working group headed by Baroness Helena Kennedy KC has recommended that a separate offence be created to tackle misogynist abuse. Despite concerns about freedom of expression being raised by a variety of high profile online commentators, the Scottish Government have insisted the threshold for prosecution is very high with the act having multiple built in protections, including a ‘reasonableness’ defence. Some reports have suggested Police Scotland have already received up to 6000 complaints under the new law since Monday.
In Other News
Last Monday, drone strikes by the Israeli Defence Force killed seven World Central Kitchen (WCK) aid workers in the Gaza strip. Over a five minute period, three missiles struck three WCK vans delivering food to Northern Gaza despite previous coordination of the route with Israeli forces. Israel has admitted responsibility for the strikes and launched an investigation, reporting on Thursday that IDF forces had mistakenly believed the cars had been hijacked by Hamas militants and that drone operators were unable to see the WCK logo on the vans in the darkness. WCK has criticised the lack of accountability demonstrated by Israel’s response and has called for an independent inquiry. In related news, an open letter signed by UK judges and lawyers – including multiple former Supreme Court Justices – has called for the UK Government to end its supply of arms to Israel. The 17-page letter explains that the Government’s current position ‘falls significantly short’ of fulfilling its obligations under international law. The majority of British voters also believe the UK should cease their exports of arms to Israel, as revealed by a YouGov survey conducted last week.
The UN Human Rights Council passed a landmark resolution on Thursday to recognise and enhance the rights of intersex people. In a resolution proposed by Chile, Australia, Finland, and South Africa, the Council voted to call on Member States to ramp up protections offered towards intersex people against ‘discrimination, violence and harmful practices’. The resolution includes a provision requesting a report from the Office of the UN High Commissioner for Human Rights ‘examining in detail discriminatory laws and policies, acts of violence and harmful practices against persons with innate variations in sex characteristics, in all regions of the world.’ Intersex people do not currently enjoy specific protection in the UK under the Equality Act 2010.
In the Courts
Uganda’s Constitutional Court declined last Wednesday to nullify the country’s Anti-Homosexuality Act. Enacted last May, the law – which permits the death penalty for ‘aggravated homosexuality’ – has received international criticism for violating rights protected both by Uganda’s own constitution and by international treaties to which Uganda is a signatory. The Court did strike down particular provisions which it held to be ‘inconsistent with right to health, privacy and freedom of religion’; one such provision placed an obligation on all citizens to report anyone they suspected of engaging in homosexual activity, which was held to violate individual rights. Despite this, the judgment has been criticised by the UN High Commissioner for Human Rights Volker Türk, who revealed that ‘close to 600 people are reported to have been subjected to human rights violations and abuses based on their actual or imputed sexual orientation or gender identity since the Anti-Homosexuality Act was enacted in May last year’. He stated that the Act ‘must be repealed in its entirety, or unfortunately this number will only rise’. The LGBT+ activists behind the court case told Reuters that they intend to appeal to the Ugandan Supreme Court to seek a full annulment of the Act.
The European Court of Human Rights handed down a judgment last week finding that the lack of access to asylum to those arriving on Poland’s eastern borders meant that Poland was in breach of the ECHR. The case concerned a group of Tajik asylum seekers repeatedly turned away at the Ukrainian border crossing. During interviews with Polish border guards, the claimants stated they were seeking international protection from political persecution in Tajikistan, and that they were at danger of deportation in Ukraine. Their denial of access to the Polish asylum system and lack of an effective appeal process for the rejection at the border crossing violated Articles 3 (freedom from torture) and 13 (right to an effective remedy). A violation of Article 4 of Protocol 4 (prevention of collective expulsion of aliens) was also found, as the claimants successfully contended that the refusal of entry was on the basis of a wider policy to not accept asylum seekers at Polish border crossings.
These two appeals both concern Section 20 of the Extradition Act 2003 (“the Act”) which deals with convicted individuals who are subject to convictions in their absence. Trials in absentia are extremely common in civil law jurisdictions and it is sometimes said that there is the possibility of unfairness arising from a trial with an absent defendant
Section 20(3) requires an extradition judge to decide whether or not a person has deliberately absented themselves from their trial. In those circumstances they can be extradited to serve a sentence without an entitlement to a retrial.
If the Court determines that the person was not deliberately absent Section 20(5) must be addressed and it is necessary to decide if they would be entitled to a retrial or (on appeal) a review amounting to a retrial. The case of Bertino considered deliberate absence within Section 20(3) and Merticariu the right to a retrial within Section 20(5).
These issues are integral to the protection of Article 6 of the ECHR. It is plain that deliberately absenting oneself from a trial would not subject someone to a violation of Article 6 but the two basic principles of that Article are the right to be present and the right to be represented (Bertino §27).
Bertino: the facts
The Appellant’s extradition was sought pursuant to a European Arrest Warrant (“EAW”) issued for his extradition to serve a year’s imprisonment after trial in his absence at the Italian Court of Pordenone. He was convicted for the offence of sexual activity with an under-age person.
The Appellant signed a document confirming that he was under investigation and he “elected domicile” in Italy. The document stipulated that he was obliged to notify the authorities of any change of address. Without such a notification service of any document would be executed by delivery to his lawyer. Mr Bertino elected his domicile by giving an address in Venetico, Messina and also indicated that he would be assisted by a court-appointed lawyer.
However he then left the country in November 2015 and came to the UK where he began to work. Meanwhile the prosecution in Italy commenced on 8 June 2017, a writ of summons for the court hearing was issued on 12 June 2017 and he was summoned to appeal at the Pordenone Court on 28 September 2017. The summons included a warning that his non-attendance without “lawful impediment” would lead to judgment in his absence. However he had never received the summons and by then the judicial authority knew that he was no longer at the address in Venetico. He had also failed to notify the authorities of any change of address.
There were then many unsuccessful attempts to trace him in Italy between 2016 and 2019. The Appellant did tell Westminster Magistrates’ Court that he had informed the authorities of his departure to the UK for family law purposes because, by then, his marriage was failing and arrangements were to be made for the children, but not the police in connection with the investigation.
The Council Framework Decision
EAWs must be drafted in a prescribed form according to the Council Framework Decision of 26 February 2009 2009/299/JHA, and there are various options which the issuing judicial authority is required to tick. In this case the EAW indicated that he was absent from his trial. There are a range of boxes for indicating, roughly, why this was; in Mr Bertino’s case none of those boxes was ticked and the evidence was that he was unaware of the date and place of his trial and even that there had been a decision to prosecute him.
The Deputy Senior District Judge ordering extradition found that, because the Appellant left his address without notifying a forwarding address and then came to the UK he had demonstrated a “manifest lack of diligence” [§10], a phrase echoing Court of Justice of the European Union case law.
On appeal Swift J found that there was no reason in principle to distinguish between a requested person’s awareness of the date and place of trial and the knowledge that if he does not attend trial he could be tried in absentia. This, he observed, is in accordance with Article 6 ECHR which guarantees a person’s right to be present at trial but that right, so he said, could be waived expressly or by inference.
Swift J certified the following point of law of general public importance:
For a requested person to have deliberately absented himself from trial for the purpose of Section 20(3) of the Extradition Act 2003 must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?
The Court’s conclusions on the law
If the EAW is used to convey information which demonstrates that one of the criteria from the 2009 Framework Decision is met that is normally determinative of whether or not the extraditee can be considered deliberately absent (§44). However the Framework Decision (§45) acknowledges that the question of whether or not to extradite is a matter of domestic law when none of the criteria has been satisfied. Consequently Section 20 falls to be analysed.
The phrase “deliberately absented himself from his trial” is the same, under Strasbourg jurisprudence, as the suggestion that an accused has unequivocally waived his right to be present at trial. If those circumstances lead to a finding of a breach of Article 6 then the judge must be required to consider retrial rights under Section 20(5). However if the trial in absentia did not lead to a breach of Article 6 then the person will have deliberately absented himself from his trial.
It is also for the requesting judicial authority to prove to the criminal standard that an appellant has unequivocally waived his right to be present at his trial.
Application of the facts to the law
The Appellant was never arrested, charged or questioned. He was never informed that he was to be prosecuted and was never notified of the time and place of his trial (§50). He knew that he was suspected of a crime which was being investigated but there was no certainty that he would subsequently be prosecuted. When he left Italy, without giving the judicial police a new address, there were no criminal proceedings of which he could have been aware and definitely no trial from which he could have deliberately absented himself. This was the basis upon which the Supreme Court ruled that the Courts below had erred in finding that he had deliberately absented himself.
At paragraph 52 the Court stated that the Magistrates’ Court and the High Court had inferred that he had unequivocally and intentionally waived his right to be present at his trial by finding that he could reasonably foresee that the trial would proceed in his absence. The Supreme Court noted that the concepts of waiver and reasonable foreseeability were from Strasbourg case law and were not synonymous with the same concepts in English private law. The Strasbourg standard is that, in order for a waiver to be unequivocal and effective, knowing and intelligent, the accused must ordinarily be shown to have appreciated the consequences of their own behaviour and will usually require them to have been warned (§54).
The District Judge had described the Appellant’s “manifest lack of diligence” but the Supreme Court concluded (§55) that this would not have been a waiver by the fact that he could have avoided the situation which led to an impairment of his rights. It was on that basis that the Supreme Court found that the courts had previously overly broadened the definition by finding that deliberate absence is found where the person’s conduct led to him becoming unaware of the date and time of trial. However (§58) these cases are clearly to be considered on their individual facts and there may be circumstances where accused people knowingly and intelligently place themselves beyond the jurisdiction of the prosecuting and judicial authorities so that a trial in their presence is impossible and they could be considered to appreciate that a trial in absentia is the only option.
The Court therefore ruled that Mr Bertino did not unequivocally waive his right to be present at his trial and was not deliberately absent. The appeal was therefore allowed.
Merticariu: the facts
The EAW was issued in 2019. District Judge Ezzat gave judgment on 26 August 2020 and found that Mr Merticariu had not deliberately absented himself from his trial but did have a right to a retrial in Romania and therefore, with this apparent guarantee, extradition was ordered.
On appeal (§6) to the High Court Chamberlain J dismissed the appeal, having found that he was bound by the authority of BP v Romania [2015] EWHC 3417 where the Divisional Court held that Section 20(5) of the Act will be satisfied even if the right to a retrial is conditional on a finding in the requesting state that the person was not deliberately absent from their trial.
The certified question
Chamberlain J certified the following question of general public importance arising from his decision. He refused leave to appeal.
In a case where the appropriate judge has decided the questions in section 20(1) and (3) of the Extradition Act 2003 in the negative, can the appropriate judge answer the question in section 20(5) in the affirmative if (a) the law of the requesting state confers a right to retrial which depends on a finding by a judicial authority of that state as to whether the requested person was deliberately absent from his trial; and (b) it is not possible to say that a finding of deliberate absence is ‘theoretical’ or ‘so remote that it can be discounted’? If so, in what circumstances?
The decision
As a Romanian extradition case the High Court considered Article 466 of the Code of Criminal Procedure which provided that the person has a “right to ask for a retrial of the case”(§34). However this was not sufficient for the Supreme Court. The “natural and ordinary” meaning of the words in Section 20(5) were clear. It is not solely a question of being entitled to apply for a retrial. The answer to the question in Section 20(5) should not be “perhaps” or “in certain circumstances” (§51). The entitlement to a retrial therefore cannot be contingent on the court making a factual finding that the person was not present at or was not deliberately absent from their trial. The question is clear: are they entitled to a retrial or (on appeal) to a review amounting to a retrial?
The decision in BP was therefore wrong at paragraph 44 where it stated that an application for a retrial was a procedural step contingent on the court determining whether the person had or had not instructed a lawyer to represent her at her trial (§52). The 2009 Framework Decision replaced “an opportunity to apply for a retrial” with “a right to a retrial.”
The Supreme Court also agreed that the right to a retrial was consistent with Strasbourg principles where there is a “duty to guarantee the right of a criminal defendant to be present in the courtroom” (§54). It is consistent with Article 6 obligations.
Furthermore the principle of mutual trust and confidence, which pervades extradition arrangements between the UK and EU (§60) runs both ways because the issuing judicial authority takes part and is represented in the proceedings in the UK court and it would be entirely in accordance with this principle that courts in requesting states respect the executing courts’ decisions in this country.
The answers to the certified questions
The Supreme Court found that an appropriate judge cannot answer Section 20(5) in the affirmative if the law confers a right to a retrial which depends on a finding by a judicial authority as to whether the person was deliberately absent from their trial.
In relation to (b) of the question the Court found that it is for the issuing judicial authority to provide information in the EAW or in response to a request for further information. The executing court should not take part in a “mini trial” as to whether, on the facts and law of the requesting state, a finding is theoretical or so remote that it can be discounted. The evidence should be clear. (§64)
The application to the case
Given that the judicial authority in this case was unable to confirm whether or not the Appellant had a right to a retrial and Article 466 of the Romanian Code of Criminal Procedure demonstrated that he would not be regarded as having been tried in absentia he had no right to a retrial (§67).
Comments
In Bertino, This decision represents a pendulum swing from the past ten years of High Court authority where the concept of “manifest lack of diligence” had imposed a significant level of responsibility on a person who may not have fully understood the consequences of their decision to leave the country after they may have only been partly aware of a criminal prosecution. It provides a greater protection to those lay persons who assume that the authorities will contact them. It also now requires District Judges to exercise greater inquiry into the circumstances of an individuals departure from the country which requests their extradition.
In Merticariu, the Supreme Court has finally resolved what is a very short point. If the Court is required to consider Section 20(5) there can be no assumptions in these cases, in the absence of any clear evidence, that a right to a retrial exists. There was always a doubt that the requesting state’s s findings about deliberate absence would chime with those of the executing state and now they need to be considered together. These questions are fundamental to the fair carriage of extradition cases between the UK and EU. Whilst the earlier cases assumed compliance with Article 6 on the basis of mutual trust and confidence the UK courts now do not need to be so quick to reach the same conclusions and they will also offer greater protections to those who find themselves in our extradition courts.
This week multiple UN institutions responded to the deteriorating humanitarian conditions in Gaza. The UN Security Council passed a resolution, with the USA abstaining, demanding “an immediate ceasefire for the month of Ramadan…leading to a lasting sustainable ceasefire” and the release of all Israeli hostages taken by Hamas during the 07 October attack. The UN Special Rapporteur on the situation of human rights in the occupied Palestinian Territory has released a report critical of Israel’s military operation in Gaza, which argues that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met”.
Meanwhile, South Africa’s case against Israel at the International Court of Justice (ICJ) continues. The ICJ has imposed further provisional measures in response to the “famine setting in”. The ICJ’s order requires Israel to cooperate with the UN to ensure “the unhindered provision at scale” of humanitarian assistance including food, water, medical supplies etc. Micheál Martin TD, the Minister for Foreign Affairs and Minister for Defence for the Republic of Ireland, has announced that Ireland will intervene in South Africa’s case at the ICJ.
This week the US Supreme Court heard what may be the most significant case regarding reproductive rights since Dobbs v Jackson Women’s Health Organisation, which overturned Roe v Wade. The case is about whether the abortion medication Mifepristone was correctly approved by the Food and Drug Administration. It was brought by several individual doctors and doctors’ groups opposed to abortion. The arguments this week focused on whether these individuals and groups had standing to sue, i.e. that they have a close enough connection to the issue to bring the case.
Michael John Smith (appellant) v Fronterra Co-operative group Ltd and others [2024] NZSC 5
This appeal to the New Zealand Supreme Court concerned strike out of a claim in tort (comprised of three causes of action) relating to damage caused by climate change. The question was whether the plaintiff’s claim should be allowed to proceed to trial, or whether, regardless of what might be proved at trial, it is bound to fail and should be struck out now.
The implications of this ruling could be enormous, particularly if the English courts decide to follow the New Zealand model. In its conclusion to this lengthy judgment, the New Zealand Court observed that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity. The common law, where it is not clearly excluded, responds to challenge and change in a considered way, through trials involving the testing of evidence.”
The plaintiff was an elder of a Maori tribe and climate change spokesman for a national forum of tribal leaders. The defendants were all New Zealand companies involved in an industry that either emitted greenhouse gases or which released GHG when burned.
On Tuesday the government published its response to the public inquiry into Brook House Immigration Removal Centre. The inquiry was a response to a 2017 investigative documentary, which included footage of staff abusing detained people. The inquiry’s report was published on 19 September 2023. In its response the government described the documentary footage as “utterly shocking”, but emphasised the fact that “[d]etention is and will remain a fundamental element of the immigration system”. The government rejected the report’s key recommendation that it should set a time limit on detention. The response sought to highlight changes that have been made across the immigration detention estate since the events of 2017, such as the improved ratio of custodial staff to detained persons and the introduction of accredited training and a code of conduct for staff. The government stated that a “comprehensive review” into complaints and whistle blowing processes is being undertaken.
In other news, a memorandum disclosed to the Afghanistan Inquiry shows that in 2011 a UK Special Forces commander raised concerns that “there is in effect an unofficial policy… to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained… and the subsequent fabrication of evidence to suggest a lawful killing in self-defence”. The inquiry is investigating alleged unlawful conduct by UK Special Forces in Afghanistan between 2010 and 2013 and the adequacy of the Ministry of Defence’s response to concerns that were raised at the time. Johnny Mercer MP, the Minister for Defence People and Veterans, has stated in his witness statement that he was shown a copy of the memorandum but not allowed to keep it. Mercer been ordered to disclose the names of those who told him about alleged war crimes to the inquiry.
In international news
The Hong Kong government passed new national security legislation known as ‘Article 23’. The new law increases prison sentences for national security related offences, including a maximum jail sentence of 10 years for sedition where an ‘external force’ is involved. Any speech which is critical of the government could potentially come under the scope of sedition, and Hong Kong’s justice minister has since stated that a person might commit an offence if they share criticism of the legislation online. The legislation gives the police the power to detain someone for 16 days without charge and to prohibit the person from consulting with a lawyer for 48 hours. UK Foreign Secretary David Cameron previously stated that the legislative proposals would “have a negative impact on the people of Hong Kong in the exercise of their rights and freedoms”. The EU has expressed concerns over the legislation’s ‘sweeping provisions and broad defintions’ and described the increased penalties, which have extraterritorial reach, as “deeply worrying”.
In the courts
The Court of Appeal ruled that an individual’s views on climate change do not form part of the ‘circumstances’ of criminal damage which is committed as part of a protest. Previously, climate protesters had successfully relied on the defence that they honestly believed the owner of the property would have consented to the damage if they had known of the damage “and its circumstances”. The Court emphasised that the “circumstances must belong to the damage, not to the defendant”, and that there “must be a sufficient connection between the damage and its circumstances”. The case under consideration involved a climate protester (“C”) who had caused damage to the offices of various charities and political parties. The court held that “what C had to say about the facts of or effects of climate change could not amount to the circumstances of the damage” and that such evidence would be inadmissible in relation to the consent defence.
Science tells us that animals are social and sentient creatures, that they experience the world much like we do. But the law treats them very differently. Despite some progress, animals remain inadequately protected, and they can suffer in entertainment, research, farming, and conflicts.
The interconnectedness of humans, animals and the environment is recognised by the World Health Organisation, and the body of scientific work into intelligence in the animal kingdom continues to grow: the songs of Humpback whales are passed down through generations; crows and ravens are renowned for their exceptional problem-solving skills; elephants display empathy and emotional sensitivity; chimpanzees and orangutans exhibit complex tool use; dolphins engage in sophisticated vocalisations and coordinated behaviours.
The Government has announced a new definition of extremism. Michael Gove, communities secretary, told ministers on Thursday that they should not interact with any groups labelled as extremist or that do not maintain ‘public confidence in government’. While the former definition encompassed ‘vocal or active opposition’, the new definition refers to the ‘promotion or advancement of ideology’. This move away from physical acts into ideas has been criticised as having the potential to infringe on the right to freedom of thought when there is no harmful consequence – Miriam Cates MP warned of its potential to ‘chill speech of people who have perfectly legitimate, harmless views’. Any organisations judged to fall within the remit of the new definition will be excluded from receiving funding or having an audience with any minister. If a group feels that their labelling as extremist is incorrect, they can challenge the ministerial decision before the courts – but there is no process for internal appeal. The chief executive of MEND, one of the organisations mentioned by Mr Gove, told the BBC he would pursue legal action if the organisation was labelled extremist. Brendan Cox, widower of Jo Cox MP, told The Guardian in the wake of the change that ‘extremism deserves to be treated seriously and soberly, not used tactically to seek party political advantage’.
On Wednesday, the House of Commons passed the Post Office (Horizon System) Offences Bill, which automatically quashes the convictions of hundreds of sub-postmasters wrongly convicted as a result of the Horizon IT scandal. This is the first time a piece of legislation has been used in order to vacate convictions en masse. On top of the £179m already paid to those wrongly convicted, a £600,000 lump sum has been made available to sub-postmasters wrongly convicted, and a £75,000 payment was approved for any who, though not convicted, suffered mistreatment. Though the subject of the Bill is uncontroversial, some lawyers have been left feeling uneasy about its methods; legal experts have warned that legislating to overturn convictions threatens to override the judicial process and could set a dangerous precedent.
In wider news
Voting in Russia’s presidential election began on Friday with ballots continuing to be cast over the weekend. Vladimir Putin is standing for his fifth term as president after amendments to the constitution were made in 2020 to allow a candidate to stand for fifth and sixth terms; another term will see him having served 30 years in power. Although a handful of candidates are running against him, others have been disqualified and many consider that those remaining pose no credible threat. Nations have been called upon by the Parliamentary Assembly of the Council of Europe to refuse to recognise and legitimate the results of this weekend’s election, which has been referred to as a ‘carefully staged legitimisation ritual’.
Five years after the proposal for regulation was first tabled, the EU voted in a plenary session on Wednesday to adopt the Artificial Intelligence (AI) Act, now expected to receive final approval within weeks. The Act categorises the risk level of various programs and imposes stepped restrictions accordingly, including banning any system of AI deemed to pose an ‘unacceptable risk’ (with exemptions for military and national security use). The response to the Bill has been mixed – while many are praising the EU for being the first to create a set of binding regulations on AI, the Act has been criticised both for being too burdensome and stifling competition in the tech sector and for its silence on crucial human rights matters such as biometric mass surveillance and predictive policing. Amnesty International has suggested that the failure of EU lawmakers to ban the export of AI incompatible with the new legislation will allow companies to profit from technologies the Union itself has deemed excessively dangerous and harmful, establishing ‘a dangerous double standard’.
An open letter signed this week by twelve Israeli human rights organisations has accused Israel of ignoring the provisional ruling delivered by the ICJ over the military campaign in Gaza. 25 NGOs have also sent a letter this week to President Joe Biden calling for the United States to end their ‘support for the ongoing catastrophic humanitarian situation’ by terminating the provision of weapons and security assistance. This comes as the President announced a floating pier would be built for aid to access Gaza while President of the EU Commission Ursula von der Leyen announced that a sea corridor would be opened into Gaza to supply food amid fears of an impending famine.
In the courts
On Tuesday, the ECHR published a judgment confirming that the right to conscientiously object to military service is protected by the right to freedom of conscience and religion under Article 9 of the European Convention on Human Rights and Freedoms. The applicant, Murat Kanatlı, was convicted for refusing to perform compulsory Turkish military service on the grounds that he conscientiously objected. The statutory provisions did not allow him to undertake any other kind of civilian service in substitution, and therefore there was no possibility a fair balance between his interests and the interests of society had been struck. Accordingly, the Court found a breach his rights under Article 9.
Two courts in Japan ruled last week that the country’s ban on same sex marriage was unconstitutional. In separate rulings, the Sapporo High Court ruled that the lack of recognition of same sex marriage in the Civil Code violated the constitution while the Tokyo District Court declared that the ban violated the dignity of the individual and was therefore unconstitutional. These are the latest in a slew of Japanese judgments over the last five years suggesting the that the legislature should recognise same sex marriage in order to honour the rights of citizens. Though polls suggest same sex marriage enjoys support from up to 70% of the population, the government have shown no indication that this is likely to occur in the near future.
Thirty-three Metropolitan police officers are suing the Met for trauma stemming from the Grenfell Tower fire. Civil claims are being pursued for psychiatric injury suffered during the tragic event in 2017 which killed 72 people. Mediation is ongoing and it is hoped an out of court settlement will be reached. The proceedings have commenced against the Met Police after it was announced last month by the Fire Brigades Union that the claims of firefighters responding to the tower fire had been settled for over £20m. It is expected that the second and final report of the Grenfell Tower Inquiry will be published this spring or summer and will inform the Met Police’s decision as to whether to bring criminal charges against any parties, including corporate and gross negligence manslaughter.
In Dillon [2024] NIKB 11, the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was challenged head on. The Court disapplied a number of provisions of the Act as being in breach of relevant aspects of EU law which continue to apply to Northern Ireland via the Windsor Framework. We have covered the precise EU law aspects of Dillonelsewhere and will only cover the ECHR elements of the judgment in this post. As will become clear, however, there is a critical link between these two main aspects of the judgment.
The disapplication of any part of an Act of the UK Parliament is infrequent enough to be notable. Given that Dillon marks not only some of the most extensive disapplication in history but also is the first such event after Brexit, the decision is significant. But, as we will demonstrate, the decision is not radical. Far from it, much of Mr Justice Colton’s 738-paragraph judgment is an orthodox application of the relevant law.
Requiring the bill to maintain full compliance with domestic and international law
Ensuring that Rwanda is only considered a safe county “when and as long as” arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice (for example ensuring that asylum seekers are not sent back to the countries from which they fled).
Allowing decision-makers, such as immigration officers, courts and tribunals to consider whether or not Rwanda is a safe country and to grant interim relief.
Protecting victims of modern slavery from being removed to Rwanda without their consent.
Parliamentarians in France have voted to amend the country’s constitution to include a “guaranteed freedom” of abortion. The measure passed in an overwhelming 780-72 vote. The change was prompted by Dobbs v Jackson’s Women’s Health Organisation, a case in which the US Supreme Court overturned Roe v Wade and so ended the right to abortion for millions of women in the USA.
The people of the Republic of Ireland have rejected proposals to “modernise” the country’s constitution. The country held a referendum to amend Article 41 of the Constitution. Article 41 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” and that the state shall “guard with special care the institution of Marriage, on which the Family is founded”. The proposed changes would have substituted marriage with “durable relationships” and would have replaced the clause relating to mothers’ duties in the home with a clause recognising care provided by family members by “reason of the bonds that exist among them”.
An UN report by the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has found that there are reasonable grounds to believe that conflict-related sexual violence occurred during the 07 October attacks in Israel including rape and gang rape. A separate internal UN report has described widespread abuse of Palestinian detainees including physical and sexual violence. As the humanitarian conditions in Gaza rapidly deteriorate, countries that previously withdrew UNRWA funding, due to allegations that employees of the agency participated in the 07 October attacks, have announced that they are resuming funding. This includes the EU Commission, Sweden and Canada. In his State of the Union address President Biden has put forward a plan to build a “temporary pier” on Gaza’s coastline to distribute aid.
In the courts
The US Supreme Court has unanimously held that Colorado cannot remove Donald Trump from the ballot of the presidential elections. The Colorado Supreme Court had held that Trump was ineligible to appear on the ballot, under Section 3 of the 14th Amendment to the Constitution which disqualifies anyone “engaged in insurrection or rebellion” against the federal government. Section 3 was originally enacted after the US Civil War to prevent supporters of the Confederacy from taking public office. The US Supreme Court held that only Congress, rather than individual states, can enforce Section 3. A particular consideration was the potential for “chaos” if different candidates were eligible in various states.
Legal news abounds these days with stories of fabricated decisions and authorities generated by ChatGPT and similar AI mechanisms. But there’s nothing like a bit of old-fashioned human plagiarism to tickle the palates, and the full force of a judge’s fury was unleashed on such an attempt recently in the High Court.
The facts appeared to be dry. The Claimant (an oil and gas company) commenced an arbitration claim against the Defendants, three companies in a banking group. It sought to enforce, under s. 66 of the 1996 Arbitration Act, what was said to be a Kuwaiti arbitration award dated 28 November 2022. This, in turn, was said to have been rendered in pursuance of an arbitration agreement between the claimants, Contax BVI, and the Defendants.
The Court was told that for a number of years Contax BVI had been attempting to liquidate an investment account held by the defendant banking company – to the tune of some €53 million. The Claimants then stated that this had been the subject of an arbitration under the auspices of the Kuwait Chamber of Commerce and Industry Commercial Arbitration Centre which had resulted in an award in its favour.
A number of documents were exhibited to the claimant’s witness statement, including the arbitration award, a decision by the Kuwaiti Commercial Court of Appeal and a document, said to be a statement by one of the claimant’s legal advisors, saying that attempts to enforce the award and Court of Appeal ruling in Kuwait had been unsuccessful. As Butcher J describes it,
“This application was put before me, in the ordinary way, on a without notice basis, for consideration on the papers, in early August 2023. Judges of this court have to consider very many paper applications of this type and others. I recall considering this one with some care, in that I did not find it all very easy to understand. I gave, I would say in retrospect, undue allowance for difficulties apparently arising from documents being prepared by people who were not native English speakers and/or whose grasp of English procedure was not perfect. It did not, however, occur to me that any of the documents might be fabrications. I was not on the lookout for fraud, and did not suspect it.”
Unsuspecting as he was, the judge made the order and gave the claimants leave to enforce it. But the defendants came back with a statement that there had never been any arbitration at all. As they put it in their skeleton argument supporting their application to have the order set aside:
“that the award is an out-and-out fabrication might seem at first blush unlikely – but substantial parts of it have been taken from Picken J’s judgment in Manoukian v Société Générale de Banque au Liban SAL [2022] EWHC 669 (QB)”
Butcher J described this case as “unique” in his experience, and “of the utmost seriousness”, and held that “there was no arbitration agreement or arbitration, and that the award and the Kuwaiti judgment are fabrications. I do not consider that there is a triable issue in relation to this.”
Documents before the Court
AI is definitely better at the business of fakery; due to the “black box” nature of its processing, it is almost impossible to identify the sources of its data. For a human processor it is much more difficult to conceal the true author of the material he or she has copied. So it was that the judge was able to establish the “arbitration award” , supposedly translated from Arabic, had substantial passages which are taken, with some modifications, from the judgment of Picken J in Manoukian, concerning completely different parties. It is best to see [40]-[44] of Butcher J’s judgment to get the full flavour of the claimant’s efforts to mislead the court but here is an example:
Extract from so-called Arbitration Award
” [5] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Contax Partners Inc BVI an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Contax Partners Inc BVI issued the proceedings on 1 December 2021; pleadings closed on 4 April 2022, and expedition was ordered at a hearing which took place on 21 June 2022. [6] In further consequence of the need for expedition, I indicated at a hearing which took place on 7th December 2021 that Contax Partners Inc BVI claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers to where he wish. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects at all or, at least, in any particular detail.”
Extract from Picken J’s decision in Manoukian:
” [3] … As a result, his position is (or was heading into the trial) precarious: any delay in the resolution of the present proceedings could potentially deny Mr Manoukian an effective remedy. It was for this reason, indeed, that the trial which took place before me was expedited: Mr Manoukian issued the proceedings on 19 December 2020; pleadings were closed on 6 April 2021, and expedition was ordered at a CMC which took place on 8 June 2021. [4] In further consequence of the need for expedition, I indicated at a short hearing which took place on 25 February 2022 that Mr Manoukian’s claim was successful, specifically his primary case that the Banks are contractually obliged to effect the transfers. I made an order, indeed, to that effect. In the circumstances, this judgment does not deal with other aspects either at all or, at least, in any particular detail.”
As Butcher J points out, these examples, which could be multiplied, largely speak for themselves. He considered the following features to be important:
“(1) The text of the Award, in significant measure, derives from the text of Picken J’s judgment. This is obvious inter alia from: (i) the use of exactly the same, far from standard, defined terms (eg ‘General Transfer Right Issue’); (ii) the use of English legal terms (eg ‘claim in debt’, ‘exclusion clause’, ‘specific performance’); (iii) exactly the same phraseology being used, including the argot of English judgments (‘be that as it may’, ‘the submission is not entirely without merit’, ‘that said’, ‘fall to be considered’); (iv) the use of the same punctuation, even when it was not obvious, and arguably incorrect (eg in paragraph 129 of Picken J’s judgment, ‘…in debt, in the event, that the Court…’, both commas also appearing in the Award).”
Given his conclusion that both the award and the Kuwaiti judgment were fabrications, Butcher J set aside the order entering judgment against the Defendants in the terms of the purported “award”. He concluded (at para 52) that
“The result of this decision is that there are a considerable number of unanswered, but serious, questions, and in particular as to who was responsible for the fabrications which I have found to have been made, and whether there is culpability (and if any whose) as to the way in which the application for permission to enforce the purported Award was presented to the court. Those are matters which are likely to require investigation hereafter.”
In this first episode, Lucy and Kiran ask ‘what’s the problem?’ and cover a number of issues including gendered assumptions and stereotypes, pressure at the Bar, equal pay, and the fair allocation of work.
Nicaragua has filed an application to the International Court of Justice instituting proceedings against Germany for alleged violations of its obligations under the Genocide Convention and other norms of international law in relation to the Gaza Strip. Nicaragua’s application argues that by providing political, financial and military support to Israel and withdrawing its funding from the UN’s Relief and Works Agency for Palestine (“UNRWA”), Germany “is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide”. The application calls for the ICJ to indicate provisional measures, including that “Germany shall immediately suspend its aid to Israel, in particular its military assistance including military equipment” and that “Germany must reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide”. Germany is one of several countries, including the UK and the United States, which have suspended funding to UNRWA following allegations that some of its staff members were involved in the October 7 Hamas attacks.
In Russia, the human rights activist Orleg Orlov was sentenced to two and a half years in prison after he was found guilty of “repeatedly discrediting” the Russian armed forces. The sentence was ordered at a retrial. Orlov had initially received a 150,000 rouble fine (approximately £1,290) in October 2023. Orlov stated in his closing statement that “[w]e know the real reason why we’re being detained, tried, arrested, sentenced and killed. We are being punished for daring to criticise the authorities. In present-day Russia this is absolutely prohibited.”
In the courts
The High Court of Northern Ireland has disapplied sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”) in a judgment handed down on Wednesday. The applicants in the lead case were relatives of individuals who had been killed during the Troubles and the victim of a shooting.
The court held that sections of the Legacy Act 2023 which provide conditional immunity from prosecution for crimes committed during the Troubles breached Articles 2, 3 and 6 ECHR and were incompatible with Article 2 of the Windsor Framework. Article 2 WF provides that the UK shall ensure that no diminution of a right set out in the Good Friday Agreement occurs as a result of the UK’s withdrawal from the European Union. The court considered that in enacting the immunity provisions, the UK government had acted incompatibly with EU law. It held that this could not have occurred if the UK had remained in the EU, and that the provisions therefore breached Article 2 WF. The court concluded that the immunity provisions should be disapplied [613].
The court made no order in relation to sections of the act which provide for the suspension of criminal investigations into Troubles-era offences and prevent new Troubles-related civil claims being brought. In relation to criminal investigations, the court found that the Legacy Act left sufficient scope for the Independent Commission for Reconciliation and Information Recovery to conduct an effective investigation as required under Articles 2 and 3 ECHR. In relation to the ban on civil proceedings, the court found that this provision did interfere with Article 6 rights, but that it was a lawful interference because it pursued the legitimate aim of promoting reconciliation.
In separate proceedings this week the High Court dismissed a challenge to a coroner’s ruling not to relist the inquest into the death of Patrick Duffy, an IRA man who was shot 14 times by undercover soldiers in Derry in 1978. A fresh inquest had been granted in March 2019 but was subject to various delays and was not relisted because it could not be completed before the 1 May 2024 deadline provided for in the Legacy Act.
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