11 October 2019
Pastörs -v- Germany (Case no. 55225/14))
On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.
Previous Holocaust denial cases before the European Court have arisen from statements made in various media, including a book (Garaudy -v- France (dec.), no. 65831/01, 24 June 2003), a TV show (Williamson -v- Germany, no. 64496/17, 8 January 2019) and even as part of a comedy routine (M’Bala M’Bala -v- France, no. 25239/13, 20 October 2015). This time the Court was called upon to consider statements made in a parliamentary context. The case involves ultra-right wing nationalist politics, parliamentary immunity from prosecution, the parliament’s ability to self-regulate that immunity, and the courts as final arbiters of such disputes. Although the statements concerned were made back in 2010, 9 years later the case still feels very topical.
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7 October 2019
This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.
This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.
The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.
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22 January 2017
Artificial intelligence … it’s no longer in the future. It’s with us now.
I posted a review of a book about artificial intelligence in autumn last year. The author’s argument was not that we might find ourselves, some time in the future, subservient to or even enslaved by cool-looking androids from Westworld. His thesis is more disturbing: it’s happening now, and it’s not robots. We are handing over our autonomy to a set of computer instructions called algorithms.
If you remember from my post on that book, I picked out a paragraph that should give pause to any parent urging their offspring to run the gamut of law-school, training contract, pupillage and the never never land of equity partnership or tenancy in today’s competitive legal industry. Yuval Noah Harari suggests that the everything lawyers do now – from the management of company mergers and acquisitions, to deciding on intentionality in negligence or criminal cases – can and will be performed a hundred times more efficiently by computers.
Now here is proof of concept. University College London has just announced the results of the project it gave to its AI researchers, working with a team from the universities of Sheffield and Pennsylvania. Its news website announces that a machine learning algorithm has just analysed, and predicted, “the outcomes of a major international court”:
The judicial decisions of the European Court of Human Rights (ECtHR) have been predicted to 79% accuracy using an artificial intelligence (AI) method.
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4 April 2016
Photo credit: The Guardian
Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 – read judgment.
The European Court of Human Rights (“ECtHR”) has held that the use of telephone recordings as evidence in a criminal trial, despite the inability of the accused to challenge the caller, did not violate his rights under Article 6, ECHR. This judgment follows a number of Grand Chamber judgments on similar issues that have altered the ECtHR’s stance on the subject of absent witness evidence.
by Fraser Simpson
The applicant, Mr Seton, was on trial for murder. Prior to the trial, he submitted a defence statement stating that he believed that the murder had been carried out by Mr Pearman. The applicant alleged that he had previously been involved in a drug deal with Mr Pearman and the victim.
Mr Pearman, who was at the time imprisoned for drug dealing, was interviewed by the police but he refused to cooperate and answered “no comment” to all questions. Following these interviews, Mr Pearman phoned his wife and son from the prison and stated that he had never heard of the applicant and had no knowledge of the murder. These calls were recorded – a standard practice that Mr Pearman would have been aware of.
During the applicant’s trial for murder, it was accepted that the primary issue to be determined by the jury was whether the applicant or Mr Pearman had committed the murder. Mr Pearman had refused to attend the trial or make a formal witness statement. Accordingly, the prosecution sought to rely upon these recordings to disprove the applicant’s version of events. The trial judge, in deciding whether the recordings could be admitted as evidence, referred to s.114, Criminal Justice Act 2003 (“CJA 2003″). After considering the relevant considerations – such as the probative value of the evidence, whether it was self-serving, the reliability of the recording, and the prejudice that the applicant would face if it were to be admitted – the judge decided that the recordings could be relied upon during the trial. In summing up, the trial judge outlined the limitations of the telephone recordings and stated that it was up to the jury, in light of these limitations, to decide the relevant weight to be attached to the recordings. The applicant was subsequently convicted by the jury and sentenced to life imprisonment.
The applicant unsuccessfully appealed his conviction to the Court of Appeal (see, Seton v. R.,  EWCA Crim 450). The Court of Appeal considered that compelling Mr Pearman to attend the trial, which was an option, would have “been a fruitless exercise”. Mr Pearman could have invoked the protection against self-incrimination and had consistently refused to cooperate so the “prospect of any sensible evidence being given by him was, on a realistic view, nil” (paragraph 22 of Court of Appeal judgment). The Court of Appeal would only interfere with the trial judge’s decision if the decision was “marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made”. The Court of Appeal held that the relevant consideration under s.114(2), CJA 2003 had been covered by the trial judge and there were no other grounds to overturn the conviction.
Further, the Court of Appeal commented on the safety of the conviction. Due to the “overwhelming” evidence against the applicant, including eye-witness accounts, telephone call records between the applicant and the victim and cell site location evidence placing the applicant in the vicinity of the murder, the conviction was deemed to be safe.
The Strasbourg Court
The applicant applied to the European Court of Human Rights and alleged that his right to a fair trial within Article 6(1) and 6(3)(d) had been violated. Article 6(1) includes the right to a fair hearing when facing criminal charges whilst Article 6(3)(d) ensures that the individual has the right:
“to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”
The default position is that witness evidence should be provided during the trial and the accused should have the opportunity to challenge this evidence during this trial. However, the use of witness evidence when the witness does not attend the trial does not automatically result in a violation of Article 6(1) and 6(3)(d). The Grand Chamber has previously set out specific guidance in assessing whether the use of such evidence complies with Article 6. In Al-Khawaja and Tahery v. the United Kingdom (GC), Application nos. 26766/05 and 22228/06, 15 December 2011 (see paragraphs 118-151), the Grand Chamber outlined a general three-part process:
Consider whether good reasons exist for the absence of the witness.
Consider whether the evidence was the “sole or decisive” decisive evidence against the accused.
Assess the existence of sufficient counterbalancing factors and procedural safeguards which allow the reliability of the evidence to be fairly and properly tested.
This process was clarified in Schatschaschwili v. Germany (GC), Application no. 9154/10, 15 December 2015. The Grand Chamber stated that the lack of good reasons for lack of attendance was not sufficient to result in a violation of Article 6, but it was a strong factor to be considered when assessing the overall fairness of the proceedings (paragraph 113). Additionally, the necessary extent of counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (paragraph 116).
- Were there good reasons for the non-attendance of Mr Pearman? (paragraphs 61-62)
The ECtHR has previously adopted a robust approach to assessing whether “good reasons” existed for the absence of the witness at the trial. Previously, even in situations where the witness was located in another country (Gabrielyan v. Armenia, Application no. 8088/05, 10 April 2012), or could not be located at all (Lučić v. Croatia, Application no. 5699/11, 27 February 2014), the ECtHR have held that the authorities have failed to satisfy their duty to secure attendance of the witness. In light of this, the ECtHR unsurprisingly concluded that no good reasons existed for Mr Pearman being absent from the trial. The trial court could have compelled Mr Pearman to attend the trial and whilst they could not compel him to give evidence, due to his right to silence, the jury would have at least been able to assess his demeanour when facing cross-examination.
- Was the evidence of Mr Pearman the “sole or decisive” evidence? (Paragraphs 63-64)
The ECtHR considered that the recorded telephone calls could not be considered the “sole or decisive” evidence in the criminal trial. The Court of Appeal, in commenting on the safeness of the conviction, had listed the other “overwhelming” evidence against the applicant. However, the evidence had been described as “important” by the trial judge. Accordingly, following the Grand Chamber decision in Schatschaschwili, it was necessary to consider whether sufficient counterbalancing factors existed during the trial.
- Did sufficient counterbalancing factors exist? (Paragraphs 65-68)
In the present case, the ECtHR highlighted the detailed legislative scheme intended to ensure that evidence from the absent witness could only be relied upon in limited circumstances. The need to assess the significance of the evidence, its reliability, and the prejudice that the applicant would face as a result of being unable to challenge the witness was an important procedural safeguard intended to uphold respect for the applicant’s rights. Additionally, the instruction of the judge as to the limitations of the evidence was another important counterbalancing factor.
As clarified by the Grand Chamber in Schatschaschwili, the assessment of counterbalancing factors is a relative one – fewer factors will be required if the evidence provided by the absent witness is not especially important. In light of the existence of separate “overwhelming” evidence against the accused, the counterbalancing factors in the present case were considered sufficient.
In conclusion, the ECtHR decided that the criminal proceedings as a whole had been fair. Having following the procedure outlined in Al-Khawaja, the ECtHR concluded that there had been no violation of Article 6.
This decision of the ECtHR is the consequence of previous Grand Chamber decisions tending to dilute the procedural protections contained within Article 6(3). The right to examine witnesses has slowly been weakened in favour of a more holistic approach that focusses upon the overall fairness of the proceedings instead of potential individual deficiencies.
When considering the three part test in Al-Khawaja, the first step – whether good reasons existed for the non-attendance of the witness – was previously considered determinative. If no good reasons existed, then Article 6 had been violated. Such a stance has even been adopted by the ECtHR following the judgment in Al-Khawaja and only months before the decision in Schatschaschwili (see Karpyuk and Others v. Ukraine, Application nos. 30582/04 and 32152/04, 6 October 2015, paragraph 123). Additionally, if such good reasons did exist but the evidence was the “sole or decisive” evidence in the case, then Article 6 had also been violated (Saïdi v. France, Application no. 14647/89, 20 September 1993, paragraph 44). Now, the position is that these considerations are merely factors that can be balanced away.
But the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to the Court of Appeal’s consideration of the safety of the conviction.
It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.
1 April 2016
This week, the mosaic shrine adorning the wall outside Stockwell underground station once again became the focal point for difficult questions surrounding the police response the terrorist attacks of 2005.
The judgment of a Grand Chamber of the European Court of Human Rights in Da Silva v the United Kingdom draws a line under a long legal battle mounted by the family of Jean Charles de Menezes, the young Brazilian electrician shot dead by the Metropolitan Police on 22 July 2005 having been mistaken for a suicide bomber.
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12 January 2016
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective.
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8 September 2015
Parrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights,  ECHR 755 (27 August 2015) – read judgment
The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures.
A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.
The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.
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26 April 2015
Photo credit: Guardian
This week we welcome to the Blog our new team of commentators on Scottish human rights issues – Fraser Simpson, David Scott and Thomas Raine.
Khan v. The Advocate General for Scotland,  CSIH 29 – read judgment.
A Pakistani national refused leave to remain in the UK after expiry of his visitor visa has had his successful challenge to that decision upheld by Scotland’s civil appeal court, the Inner House of the Court of Session.
The request for leave to remain was initially refused under the Immigration Rules due to a lack of “insurmountable obstacles” preventing Mr Khan from continuing his family life in Pakistan. That decision was reduced (quashed) by the Lord Ordinary – a first-instance judge in the Outer House of the Court of Session – as although the decision had been in accordance with the Immigration Rules, the decision-maker had failed to undertake a proportionality assessment of the decision as required under Article 8 ECHR (read the Outer House judgment here).
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30 January 2015
Unsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.
An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.
Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.
Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.
In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.
But Spielmann did not leave it at that, as we shall see.
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27 November 2014
Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment
The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.
Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.
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21 October 2014
The news last week was that the Foreign Secretary has proposed a revival of a fourteenth century statute in order to prosecute British jihadists who travel to Iraq or Syria to fight. Cries of foul are coming from the usual quarters, and there’s even a protest that the Strasbourg Court would object, which, given the current controversy surrounding that tribunal, may be a good reason in itself for such a move.
In the current froth over the Convention versus “home grown” human rights, there is much talk of the Magna Carta. So may be of interest to some that in the opinion of one of the greatest legal scholars in history, Edward Coke, the Statute of Treason had a legal importance second only to that of the “Great Charter of the Liberties of England”, piloted by feudal barons to limit King John’s power in 1215.
Politics aside, how would this work? On the face of it, a law which has been on the statute books for centuries, and is found to be applicable to a current state of affairs, is an equum donatum whose dental health should not be examined too closely. Although the last person to be convicted under the 1351 Treason Act – the Nazi propagandist William Joyce (otherwise known as Lord Haw Haw)- was hanged, now any British citizen convicted of the offence could be given a life sentence.
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26 April 2014
Dhahbi v.Italy, ECtHR, 8 April 2014 – read judgment – in French only
A case to get the Sun leader writers confused, in that the Strasbourg Court was making sure that Italy did not get away with refusing to refer a case to the EU Courts.
Mr Dhahbi lives in Italy. He was of Tunisian origin, and was not at the time of this case an Italian citizen. He applied for and was refused a household allowance on the sole ground of nationality. He relied upon an entitlement to this allowance in an association agreement between the EU and Tunisia (known as the Euro-Mediterranean Agreement). The Italian court refused his application to have the case determined by the CJEU in Luxembourg.
Strasbourg decided that there had been a violation of his fair trial rights under Article 6, and discrimination on grounds of status under Article 14, when read with Article 8.
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21 November 2013
Updated | The relationship between the UK and the European Court remains turbulent and fractious. The Court has been the subject of significant criticism, notably from some politicians and commentators in the UK, relating to its supposed interference in domestic, sovereign questions and the quality of its judges.
Some commentators say that the UK may have to withdraw from the jurisdiction of the court. Michael Pinto-Duschinsky argues that if (as is highly likely) the Council of Europe refuses to institute a “democratic override” for states of European Court of Human Rights decisions, withdrawal should be seriously considered. MP Nick Herbert argues that the UK should withdraw immediately.
Others have proposed withdrawing from the European Convention altogether. For example, in April, the Home Secretary, Theresa May, said that temporary withdrawal from the Convention was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (also known as Abu Qatada). Two members of the Commission tasked with investigating the creation of a UK Bill of Rights advocated withdrawal from the Convention unless the Court ceased its ‘judicially activist approach’ (p. 182).
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23 April 2013
Animal Defenders International v United Kingdom, April 22 2013 – read judgment
In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.
This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,
The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.
….A robust democracy is not helped by well-intentioned paternalism.
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6 April 2013
Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment
These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.
Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.
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