Research published by Equality & Human Rights Commission shows UK Government survives most Human Rights challenges

CONTRARY to the almost never ending spin (lies, untruths, falsehoods – Ed) put out by the ConDem coalition Government in London against European Commission Human Rights legislation (ECHR) and rulings from the European Court, research published today by the Equality & Human Rights Commission available here : Research report 83: The UK and the European Court of Human Rights (PDF) reveals the UK Government actually survives most Human Rights challenges under the ECHR Act.

Research released by the Commission at this week’s Brighton conference on the European Court of Human Rights, shows that just a tiny minority of rulings by the Strasbourg Court are against the UK government

The research shows that of the nearly 12,000 applications brought against the UK between 1999 and 2010, the vast majority fell at the first hurdle. Only three per cent (390 applications) were declared admissible. An even smaller proportion of applications - 1.8 per cent (215) - eventually resulted in a judgment finding a violation. The latest figures for 2011 show a rate of defeat of just 0.5 per cent, or one in 200.

The research also shows that, in a similar situation to the Human Rights Act, where the UK parliament has sovereignty over its implementation, UK courts have the flexibility to interpret the European Convention on Human Rights in a manner different to that of the Strasbourg court. A ‘margin of appreciation’ recognises that national authorities are in the main best placed to decide how human rights should be applied.

While judgments against the UK have been relatively few in number, a significant proportion involved basic civil liberties such as the right to a fair trial; around eight per cent of judgments related to the right to life and the prohibition of torture and inhuman or degrading treatment.

Other important rulings have led to better protection against unnecessary intrusion into privacy through the use of secret surveillance; legislation outlawing forced labour and servitude; equal rights for lesbian, gay, bisexual or transgender people and protecting the freedom of the UK media, including the protection of journalists' sources and the importance of investigative journalism, as in the exposure by the Sunday Times of the thalidomide case.

The Commission, which is Britain’s National Human Rights Institution (NHRI), welcomed the Declaration issued by government representatives gathered in Brighton. In particular, the Commission welcomed their acknowledgement of the Court’s extraordinary contribution to the protection of human rights in Europe; the right of individuals to take their cases to the Court as the cornerstone of the system; the UK government’s acknowledgement that it can prevent breaches of the Convention and reduce the workload of the Court by ensuring respect for human rights at home; and the reaffirmation of the important role of NHRI’s like the Equality and Human Rights Commission in protecting human rights.

The Commission also welcomed the news that the backlog of cases which has built up will be dealt with over the next few years and moves to improve selection processes so that only the best individuals become judges.

John Wadham, General Counsel, Equality and Human Rights Commission said: “This month’s judgment on the Abu Hamza case highlights that, contrary to popular belief, the vast majority of rulings by European Court of Human Rights are in Britain’s favour, rather than against it. Research prepared for the Commission ahead of this week’s Brighton conference on the European Court, shows that 98 per cent of rulings are in Britain’s favour rather than against. And even then, our governments and courts have the flexibility to interpret rulings rather than automatically be bound by them.”

Mr Wadham continued : “Britain has a strong record in supporting and upholding the rights contained in the European Convention and we can be proud of our leadership in this area. As the UK’s National Human Rights Institution, the Commission supports the recommendations made by our fellow European National Human Rights Institutions to increase the effectiveness of the European Court of Human Rights and for the UK government to affirm its commitment to protecting the rights in the European Convention.”

Research report 83: The UK and the European Court of Human Rights (PDF)

The Commission is a statutory body established under the Equality Act 2006. It took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.

First Minister’s threats & intimidation over alleged Supreme Court ‘interference in Scots Law’ scores ‘call for change’ on Human Rights rulings

After weeks of threats & intimidation, claims, counterclaims & criticisms from Scotland’s First Minister Alex Salmond & Justice Secretary Kenny MacAskill of the UK Supreme Court’s rulings in the Cadder v HMA case and more recently its ruling on Nat Fraser, accused of murdering his wife, the review group headed by Lord McCluskey has published its first report ahead of a debate in the Scottish Parliament later this week. Unsurprisingly, the initial report concludes there should be change in the way cases from Scotland can get to the Supreme Court and  only if the High Court in Scotland granted convicts permission to appeal.

Eager to take the sting out of today's announcement of the untimely death of Lord Rodger, who, along with Lord Hope and the other judges of the Supreme Court the First Minister & Justice Secretary did most thuggishly attack over the past few weeks due to their own perception the Supreme Court had ‘interfered’ in the Scots legal system, First Minister Alex Salmond today selectively welcomed the findings of Lord McCluskey’s review group, saying : “There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK - with serious implications for the certainty and integrity of our distinct legal system.”

However, it should be noted Lord McCluskey’s initial report clearly states : “We do not suggest that the jurisdiction of the Supreme Court should be ended.”

Supreme Court Review

On 05 June 2011, First Minister Alex Salmond announced the creation of an independent review group to consider the law and practice currently governing the respective jurisdictions of the High Court of Justiciary and the Supreme Court in cases involving the application of human rights law, including cases in which 'devolution issues' are raised.

The full terms of reference for the group are: "To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom; To consider the criticisms of and various suggested amendments to those mechanisms in light of current assessments, including criticisms, of their operation; and to advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure Scotland's unique system of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act."

Read the reports here : First Report of the Review Group (pdf) Appendix and Supplement (pdf)

SUMMARY OF ADVICE :

72. We agree with the Expert Group that serious problems have arisen - in relation to the jurisdiction of the Supreme Court in criminal cases involving human rights issues - because the statutory basis in the Scotland Act 1998 for that jurisdiction is unsatisfactory (cf. paragraphs. 42 and 43).  We do not suggest that the jurisdiction of the Supreme Court should be ended.

73. We endorse the general solution proposed by the Expert Group and adopted by the House of Commons on 21 June 2011 to create a different procedure for human rights appeals, but we advise consideration of a new provision governing permission to appeal to the Supreme Court from a determination by the High Court of Justiciary of any question of “compatibility”, as  defined in the new Section 98A (2) (paragraphs 53 to 57).

74. Our proposed new provision (outlined in paragraph 56) would put the High Court of Justiciary on an equal footing with its counterparts elsewhere in the UK by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has  granted a certificate that the case raises a point of general public importance. Other issues about permission are suggested for further discussion (paragraphs 67 to 69).

75. It should be made clear that, in criminal appeals from the High Court of Justiciary on “compatibility” questions, the Supreme Court’s jurisdiction is to be exercised in such a way that it defines and expresses the law applicable and then sends the case back to the High Court of Justiciary to apply that law (paragraphs 60 to 64). In this way the traditional role of the High Court of Justiciary, reflecting the long history of separate development of the Scottish criminal system, would be preserved. The precise method of achieving this clarification should be fully discussed with those who have to deal with such cases in practice.

76. We advise that careful consideration be given to a general rule that normally the Supreme Court should give a ruling on a “compatibility” question only after the case has been completed. However, it might be wise to permit the High Court of Justiciary to ask the Supreme Court for a ruling at an earlier stage (paragraphs 65 and 66). We have not, as yet, fully discussed the provisions that allow References to the Supreme Court by the Advocate General or the Lord Advocate.

77. We are prepared to consult interested parties on the way forward following publication of this Report and the subsequent Parliamentary debate.

BBC News reports :

Supreme Court system for Scottish cases 'flawed'

Experts reviewing the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases have called for change.

Lord McCluskey's review group claimed Scotland faced more intrusive jurisdiction from the Supreme Court than the rest of the UK.

The report said the system was "flawed" and called for coherence across the UK.

The first minister set up the group over concern about the Supreme Court's involvement in Scottish criminal cases.

Scottish government ministers previously said the Scottish legal system should have direct access to the European court in Strasbourg - ending the jurisdiction of the UK Supreme Court on Scottish criminal cases.

However, the McCluskey Group backed the UK Supreme Court's jurisdiction to rule on human rights in Scottish criminal cases - but only if the High Court in Scotland granted convicts permission to appeal.

Currently in Scotland, an appeal can be made to the UK Supreme Court for criminal cases relating to human rights law.

In the rest of the UK, an appeal to the Supreme Court is only possible with the leave of the Court of Appeal - and only when a point about general public importance is at stake.

The McCluskey report recommended a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary "on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance".

It also said it should be made clear that "the jurisdiction of the Supreme Court should be exercised in such a way that it identifies clearly the law that the criminal courts have to apply, but that the application of the law to the case in which the issue is being litigated should be remitted to the High Court of Justiciary".

It claimed this would help preserve the traditional role of the High Court of Justiciary under current constitutional arrangements by ensuring "the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary".

First Minister Alex Salmond welcomed the review group's first report, which has been published in order to help inform the Scottish Parliament debate taking place on Thursday.

He said: "There is now a consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots Law than is the case for the other jurisdictions within the UK - with serious implications for the certainty and integrity of our distinct legal system.

"We now have the interim analysis and conclusions of the McCluskey Group, and I particularly welcome its recommendations for amendments to the Scotland Bill to limit the role of the UK Supreme Court by placing referrals from Scotland's highest court of criminal appeal - the High Court of Justiciary - on the same footing as is the case for the justice system south of the border.

"It also makes positive suggestions for the UK Supreme Court to operate clearly and consistently as a court of interpretation of human rights law, and not 'as if it were the High Court of Justiciary'."

He added that the recommendations should be "capable of attracting support and consensus across parliament, and among the wider legal and other important interests involved".

It is expected the group will publish a final report by autumn - before amendments are made to the Scotland Bill.

A spokesman for the Advocate General - the UK government's senior Scottish legal adviser - said any change in the rights of Scots to appeal directly to the Supreme Court in London would require legislation in Westminster.

He said amendments could be made to the Scotland Bill, which has just been sent to the Lords from the House of Commons, but pointed out that Lord McCluskey's full report was not due to be published until later in the year.

The spokesman said: "Ministers will consider the McCluskey Report and debates later in the week in Holyrood.

"They will do this along with consideration of the UK government's expert qroup and consultations on this issue before coming to a final view."

The row about the Supreme Court's role in Scottish criminal cases erupted in May in the case of Nat Fraser.

Five justices in the court in London said Mr Fraser's conviction for the 1998 murder of his wife, Arlene, should be quashed.

Fraser, 52, from Elgin, now faces a retrial.

The court had previously cast doubt on a large number of criminal convictions in Scotland in a ruling which came to be known as the Cadder judgement.

This concerned the rights of a suspect to legal representation during questioning by police.

Privacy law bid fails as European Court rules against Max Mosely

Max Mosely, the former President of the FIA which controls Formula One motorsport has lost his case in the European Court to force newspapers to contact people before exposing their private lives.

BBC News reported in 2008, the UK High Court awarded Mr Mosely £60,000 damages after ruling the News of the World invaded his right to privacy by reporting on his sex life in a story which was later reported on in The Times, HERE . Victory might have led to new privacy laws, which press bosses oppose.

Mr Mosley is reported to have expressed his disappointment at the European Court ruling, the conclusion of which can be read below :
127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23-24 above). Thus, in the applicant’s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication.

128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant’s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine.

129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.

iii. Conclusion

130. As noted above, the conduct of the newspaper in the applicant’s case is open to severe criticism. Aside from publication of the articles detailing the applicant’s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant’s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World’s coverage merely to titillate the public and increase the embarrassment of the applicant.

131. The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).

132. However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 10 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Distraction Politics 'toys with our human rights' : ‘Right-wing’ Policy Exchange urges UK should cut links to European Court of Human Rights

Just in time for the political debate on giving prisoners the vote after a ruling by the European Court, a right wing think tank, the Policy Exchange has urged the UK Government to cut our links with the European Court, doubtless so our justice systems both south & north of the border can muddle on in a Victorian state where the rights of the individual come a solid last to the rights of vested interests, or Government departments & public services.

Further analysis of this political debate, masquerading as a legal debate can be found here : Withdrawal from the European court of human rights is not a legal problem

The actual report from the Policy Exchange can be downloaded HERE (pdf)

Critics would of course point out its not the civil law rulings from the European Court which has reignited the right’s obsession to throw out ECHR compliance in the UK … rather its the criminal law rulings where more often than not, legal aid chasing lawyers hunt out a criminal law client they feel they can make a name for themselves with (quite possibly ! – Ed)

BBC News reports :

UK 'should cut links to European Court of Human Rights'

The government should cut its ties with the "expansionist" European Court of Human Rights, says a report by a right-leaning think tank.

The Policy Exchange report says the recent row over prisoners' voting rights highlights the issue.

The report, written by a former government adviser, Dr Michael Pinto-Duschinsky, says the UK has become "subservient" to the Strasbourg court.

He says it also ignores the traditional British freedom of the press.

The report claims the 47 Strasbourg judges have "virtually no democratic legitimacy" and are poorly qualified compared to Britain's own senior judges.

Lord Hoffman, a former Law Lord, who wrote the foreword to the report, said Strasbourg has "taken upon itself an extraordinary power to micromanage the legal systems of the member states".

The report says the ECHR is a "virtually unaccountable supra-national bureaucracy".

The row over voting rights for prisoners was sparked by a judgment from the ECHR in 2005.

The court upheld an appeal by convicted killer John Hirst, who said Britain had breached the European Convention on Human Rights by disenfranchising him.

The judgement meant the UK government was forced to allow prisoners to vote but has tried to limit it to those who were sentenced to less than four years in jail.

Blair Gibbs, Head of Crime and Justice at Policy Exchange, said: "Votes for prisoners has brought to public attention the growing conflict between judges and the wishes of our own elected parliament.

'Strayed beyond remit'

"On this issue, judges in Strasbourg have strayed well beyond their remit and have casually trampled on the rights of Parliament and the role of MPs to decide these essentially political questions.

"The public favour such cases being decided in the UK, not by foreign judges sitting in a remote court."

Would the sky collapse without Strasbourg - would Britain become a pariah state? Policy Exchange says not.

The main difference is that British citizens would no longer be able to appeal to the Court and the government would not be bound by its decisions.

The European Convention on Human Rights would still be incorporated into UK law, as it is now, and be reflected in decisions of the domestic courts. But the final arbiter for cases relating to human rights would be the UK Supreme Court.

The Court would frequently take account of Strasbourg decisions - but it would not be obliged to follow them.

The think-tank says Britain would not face expulsion from the Council of Europe or the European Union, as some experts have suggested - though any move to sever ties with the Strasbourg court would not be straightforward, involving some tricky legal manoeuvring and political negotiation.

Policy Exchange says the court represents "worthy ideals" but is not "fit for purpose" and requires "substantial reform".

If improvements are not made within two years, says the report, the government should consider withdrawing from its jurisdiction in order to prevent UK citizens lodging appeals in Strasbourg.

Neil O'Brien, director of Policy Exchange, told the BBC that the UK government did have to follow what was decided in Strasbourg, but that it should end this arrangement.

"Although it is not an easy or simple thing to cut our ties with the court, it is possible, and we argue that for a whole series of reasons we should now cut our ties with the court because it is, increasingly by trivialising and over-extending the concept of human rights into areas where it really doesn't belong... it's really undermining support for human rights," he told Radio 4's Today programme.

BBC home affairs correspondent Danny Shaw says the prevailing legal wisdom has been that severing ties with Strasbourg would jeopardise Britain's commitment to human rights laws and its membership of the Council of Europe and the EU.

But the report says there is "strong evidence" from legal experts that this would not be the case.

Lord Hoffman writes: "In the last few years, human rights have become, like health and safety, a byword for foolish decisions by courts and administrators.

"The tendency has been to say that there is nothing to be done. We are stuck with the Convention and the European Court of Human Rights and unless we are willing to cast ourselves as a pariah state and get expelled from the European Union, we must accept the court's jurisdiction.

"But Mr Pinto-Duschinsky shows that the situation is not so hopeless and there are means by which, with sufficient support from other states in the Council of Europe, we can repatriate our law of human rights. It is worth a try," he adds.

Law update

But former Labour foreign minister Denis MacShane said the claim Britain pull out of the ECHR without political consequences was "dangerous nonsense" and "would shame Britain around the world".

He said: "Of course the ECHR annoys people who think that every British judge and jury are perfect and never make mistakes. But justice and respect for law are stronger if citizens feels there is an appeal process.

"Compared to other major world regions - the Americas, Africa, or Asia - the citizens of Europe have in general terms a broader sense of living under rule of law with their human rights upheld.

"When the ECHR was written capital punishment was the norm and homosexuality was a crime. Today we think differently and what the ECHR does is to reflect changes in social and penal thinking and spread new principles and practice more widely."

Writing in the Sun, Lord Carlile, the government's reviewer of anti-terror laws, said that the European Convention on Human Rights was created in 1948, but that it now "no longer functions properly" and needs updating.

He added: "A new convention could mean new and more rights - consumer rights, environmental rights, internet rights.

"More cases would be decided in this country. A new convention would allow greater differences of interpretation according to local attitudes leading to a more realistic view of who can stay here."

European Court of Human Rights ruling : Yusuf Salduz v. Turkey

As we reported earlier, a recent ruling by the European Court of Human Rights in a Turkish case, has ruled confessions by criminals or suspects without access to legal representation are illegal.

The ruling may have significance for convictions in Scotland obtained as a result of confessions where access to legal representation has been denied. (a few solicitors will be rubbing their hands at that one ! - Ed)

The ruling :

European Court of Human Rights : Yusuf Salduz v. Turkey

CASE OF SALDUZ v. TURKEY

(Application no. 36391/02)

JUDGMENT

STRASBOURG

26 April 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Salduz v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jociene, judges,
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 27 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

# The case originated in an application (no. 36391/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yusuf Salduz (“the applicant”), on 8 August 2002.

# The applicant was represented by Ms. T. Aslan, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

# On 28 March 2006 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the lack of legal assistance in police custody and the non-communication of the submissions of the Principal Public Prosecutor, to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

# The applicant was born in 1984 and lives in Izmir.

# On 29 May 2001, the applicant was arrested by police officers from the anti-terrorism branch of the Izmir Security Directorate on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers' Party, an illegal organisation). The applicant was also accused of hanging an illegal placard on a bridge in Bornova on 26 April 2001.

# On 30 May 2001 the police officers took a statement from the applicant in which he admitted the charges.

# On 1 June 2001 the applicant was brought before the public prosecutor and then the investigating judge. Before both officials, the applicant denied the content of his police statement, alleging that it had been extracted from him under duress. The same day, the investigating judge remanded the applicant in custody.

# On 11 July 2001 the public prosecutor at the Izmir State Security Court filed an indictment with the same court, accusing the applicant of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and Section 5 of Law no. 3713 (the anti-terrorism law).

# On 5 December 2001 the Izmir State Security Court convicted the applicant as charged and sentenced him to four years and six months' imprisonment. This sentence was then reduced to two and a half years' imprisonment as the applicant had been less than eighteen years of age at the time of the offence.

# When delivering its judgment, the Izmir State Security Court had taken into consideration the statements which the applicant had made to the police, the public prosecutor and the investigating judge, as well as his co-defendants' testimony before the public prosecutor. The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration. The court further took note of the expert report which suggested that the applicant's handwriting was identical to that on the placard. The court also noted that, according to the arrest report drawn up by the police, the applicant had been among the people who dispersed after the demonstration.

# On 27 March 2002, the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to the 9th Chamber of the Court of Cassation, in which he had argued that the Chamber should uphold the judgment of the Izmir State Security Court.

# On 10 June 2002 the 9th Chamber of the Court of Cassation confirmed that judgment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

# The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the submissions of the Principal Public Prosecutor of the Court of Cassation had not been communicated to him, and that he had been denied the assistance of a lawyer while in police custody. Article 6 §§ 1 and 3 (c) of the Convention, in so far as relevant, read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A. Admissibility

# The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Non-communication of the public prosecutor's written opinions submitted to the Court of Cassation

# The Government submitted that the written opinion of the Principal Public Prosecutor was not binding on the Court of Cassation, as it was free to decide on appeals regardless of the Prosecutor's opinion. They further maintained that the applicant's representative had had the right to consult the case file and examine the documents. Finally, the Government pointed out that on account of the recent amendment of 27 March 2003 Article 316 of the Code of Criminal Procedure now provides that the written opinion of the Principal Public Prosecutor of the Court of Cassation must be sent to the parties.

# The applicant maintained his allegations.

# The Court notes that it has already examined the same grievance in the case of Göç v. Turkey and found a violation of Article 6 § 1 of the Convention ([GC], no. 36590/97, § 14, ECHR 2002-V). In that judgment, the Court held that, having regard to the nature of the principal public prosecutor's submissions and to the fact that the applicant had not been given an opportunity to make written observations in reply, there had been an infringement of the applicant's right to adversarial proceedings (loc. cit. § 55).

# The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned case.

# Accordingly, there has been a violation of Article 6 § 1 of the Convention.

2. Lack of legal assistance during police custody

# The Government maintained that the restriction imposed on the applicant concerning access to a lawyer while in police custody had not infringed his rights of defence. They submitted that, according to the Court's case-law, the assessment of whether a trial was fair should be made in the light of the entire case. In this connection, they contended that the applicant had been assisted by a lawyer before both the Izmir State Security Court and the Court of Cassation.

# The applicant maintained his allegations.

# The Court reiterates that Article 6 § 3 (c) may be relevant at the stage of the preliminary investigation in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports of Judgments and Decisions 1996 I, § 62). Although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 X).

# In the present case, the Court notes that the applicant was represented both at the trial before the Izmir State Security Court and on appeal by his lawyer. Moreover, the statement he made to the police during his pre-trial detention was not the sole basis for his conviction, and he had had the opportunity of challenging the prosecution's allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. Before deciding the case, the Izmir State Security Court considered the factors surrounding the applicant's arrest and the expert report which confirmed that the applicant's handwriting had been identical to that on the illegal placard. The court also took note of witnesses' statements before the public prosecutor to the effect that the applicant had invited them to join the demonstration. The court then convicted the applicant on the basis of the facts and evidence before it as a whole (see Yurtsever v. Turkey (dec.), no. 42086/02, 1 August 2006, and Uçma and Uçma v. Turkey (dec.), no. 15071/03, 3 October 2006).

# In these circumstances, the Court considers that, in the instant case, the fairness of the applicant's trial was not prejudiced on account of the fact that he did not have access to a lawyer during the period in police custody.

Accordingly, there has been no violation of Article 6 § 3 (c) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

# Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

# The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

# The Government contended that the amounts claimed were excessive and unacceptable.

# The Court finds that the applicant has failed to substantiate that he incurred any pecuniary damage as a result of the breach of his Convention rights. It therefore disallows this aspect of the claim. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

B. Costs and expenses

# The applicant also claimed EUR 3,500 for the costs and expenses incurred before the domestic courts and the Court.

# The Government submitted that the applicant had failed to substantiate his claim.

# Making its own estimate based on the information available, the Court considers it reasonable to award the sum of EUR 1,000 under this head.

C. Default interest

# The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

# Declares, unanimously, the application admissible;

# Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the non-communication of the public prosecutor's written opinion;

# Holds by 5 votes to 2 that there has been no violation of Article 6 § 3(c) of the Convention on account of the lack of legal assistance while the applicant was in police custody;

# Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;

# Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into new Turkish liras at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

# Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé F. Tulkens Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Tulkens and Mularoni is annexed to this judgment.

F.T.
S.D.

JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND MULARONI

We regret that we cannot agree with the majority that there has been, in this case, no violation of Article 6 § 3 (c) of the Convention, for the following reasons:

# As the majority correctly points out at paragraph 22 of the present judgment, our Court has been very clear in reiterating, over many years, that Article 6 applies even at the stage of the preliminary investigation into an offence by the police, and that its paragraph 3 (c) may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (Imbrioscia v. Switzerland, judgment of 24 November 1993, § 36). As the Court emphasised in that judgment, the manner in which this provision is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (§ 38).

In the John Murray v. the United Kingdom judgment of 8 February 1996, the Court observed: “national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (§ 63).

In the Brennan v. the United Kingdom judgment of 16 October 2001, which is based on the same principles, the Court said that “[t]he manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case” (§ 45). It observed: “although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (ibid).

# We can reasonably infer from the above-mentioned case-law the following elements:

Firstly, it is now clear from the Court's case-law concerning Article 6 § 3 (c) that the assistance of a lawyer already at the initial stages of police interrogation is the rule and the lack of assistance is the exception.

Secondly, both in the John Murray and Brennan judgments, the Court made it equally clear that, if there is a restriction on the right to the assistance of a lawyer already at the initial stages of the proceedings, there must be a “good cause” (des raisons valables) for such a restriction.

Thirdly, we observe that in the Murray case the Court found a violation of Article 6 § 3 (c) of the Convention and refused to accept the respondent Government's submission that no problem arose under this Article since the inferences drawn during the first 48 hours of police detention were not the only evidence against the applicant (§ 60, third sub-paragraph).

Fourthly, although in the Brennan case the Court did not find a violation of Article 6 § 3 (c) of the Convention as far as the deferral of access to the applicant's solicitor was concerned, the reason was that the applicant had made no incriminating admissions during the 24-hour deferral period, when he was denied access to a solicitor.

# Against this background, in the present case, we cannot accept that the exception has become the rule and that the argument put forward by the Government and rejected by the Court in the Murray case is now the ordinary justification for dismissing complaints under Article 6 § 3 (c) concerning deferral of access to lawyer, i.e. that “the statement the applicant made to the police during his pre-trial detention was not the sole basis for his conviction” (paragraph 23 above). As to the argument that the applicant had had the opportunity to challenge the prosecution's allegations under conditions which did not place him at a disadvantage vis-à-vis his opponent, it does not seem to us to be grounded on any factual evidence in the file.

Furthermore, no examination of the specific circumstances of the case was made, although incriminating admissions made during police custody were part of the evidence used for the conviction. As to this last aspect, we would observe that the applicant was a minor suspected of having participated in an illegal demonstration in support of the imprisoned leader of the PKK, and accused of hanging an illegal placard on a bridge. He was facing a very serious penalty and was eventually sentenced to four years and six months' imprisonment, which was then reduced to two and a half years' imprisonment on account of the fact that he was a minor at the time of the offence. In addition to that, before the public prosecutor and the investigating judge, the applicant denied the content of his police statement, alleging that it had been extracted under duress (paragraph 7 above).

Moreover, the majority does not examine at all the specific circumstances of the case, as the Court did for example in the Kolu v. Turkey judgment of 2 August 2005, in which it held that there had been a violation of Article 6 § 3 (c) of the Convention on the ground that “depriving the applicant of legal assistance while he was being questioned – whatever the justification might be – caused an infringement of his right to due process which could not be made good subsequently” (§ 62).

Finally, the Government have not advanced any “good cause” (des raisons valables) for the restriction at issue. The only “good cause” was probably that the legislation in force at the material time in the respondent State concerning such crimes did not provide for access to a lawyer during police custody.

# On a more general level, we would also observe that in the last few years a number of State Parties to the Convention, including the respondent, have changed the relevant legislation concerning access to a lawyer during police custody. Some of them expressly invoked the Court's case-law as the main reason for such a change. In this respect, we should not send out the wrong message by saying that the mere fact that a statement made to the police during pre-trial detention is not the sole basis for an applicant's conviction retrospectively justifies any restrictions on access to a lawyer during police custody, which is simply not true.

# Last but not least, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) has frequently recommended that the right of access to a lawyer be guaranteed from the very outset of custody (see as a recent reference CPT/Inf/E (2002) 1 – Rev. 2006, page 12, § 41). The CPT has stressed that, in its experience, the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Consequently, the possibility for persons taken into police custody to have access to a lawyer during that period is a fundamental safeguard against ill-treatment. It is difficult for us to accept that our Court, while being more and more careful about any situation that could possibly be problematic under Article 3 of the Convention, is at the same time moving backward as to the protection afforded under Article 6 § 3 (c) of the Convention.

# The aim of the Convention is to protect rights that are not theoretical or illusory but practical and effective. That rule is true also of the right to legal assistance. As we all know, the crucial moments in criminal proceedings come right at the beginning, with the first stages of police intervention, which may determine the outcome of the proceedings definitively and irremediably.

That is the main reason why the right to legal assistance as soon as possible and throughout criminal proceedings is set forth as a guaranteed fundamental right in the proposal of 28 April 2004 for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, with the aim of setting common minimum standards.