Zherdev v. Ukraine: Article 3 of the ECHR and Children’s Rights at the Stage of Police Interrogation

By Prof. Dr. Ton Liefaard, Professor of Children’s Rights / UNICEF Chair in Children’s Rights, Leiden Law School, Leiden University, The Netherlands[1]

The Zherdev v. Ukraine judgement of 27 April 2017 by the European Court of Human Rights (hereinafter: the Court) further augments the Court’s line of recognising the vulnerable position of children in police interrogation and custody. What is the impact of this recognition on the threshold to find a violation under Article 3 ECHR, and to what extent does the judgement reflect international legal standards relating to children in conflict with the law, and global concerns regarding police violence towards children?

This commentary begins with a brief overview of the relevant facts of the case. It then addresses the Court’s judgement, focusing on the allegations in relation to Article 3 and to a certain extent Article 6 ECHR. It explores the Court’s threshold to assess ill-treatment in the context of children in police custody, and highlights relevant international standards in that regard. This commentary concludes with a final note on the important role of lawyers in preventing and addressing ill-treatment, and the complex issue of children’s waiver of legal counsel. Continue reading

Van Wesenbeeck v. Belgium: Balancing defence rights with law enforcements’ possibilities to apply observation and infiltration methods

By Sofie Depauw, PhD Researcher at Ghent University, Institute for International Research on Criminal Policy (IRCP).

With its judgment in the case of Van Wesenbeeck v. Belgium, the Chamber of the European Court of Human Rights has taken a stance with regard to the scope of defence rights in case of observation and infiltration methods. More specifically, the Court judged that, despite the lack of access to the confidential case file and the applicant’s inability to examine undercover officers, the right to a fair trial had not been violated. According to the Court, the supervisory role of the Indictments Division constituted a sufficient procedural guarantee to compensate for both interferences. Whereas it remains to be seen whether this judgment will hold, as the case can still be referred to the Grand Chamber, it is however interesting to take a closer look at the Court’s considerations in this regard and the dissenting opinion relating to the right to examine witnesses. Continue reading

Crossing the Very Fine Line between Justice and Vengeance: Massive Purges in the Aftermath of the Attempted Coup in Turkey

Guest post by Duygu Çiçek – LL.M. in Human Rights from the University of Edinburgh (2015-2016)

Turkey’s recent attempted coup of the 15th of July exposed various discussions and conspiracy theories about the reasons behind the coup as well as future concerns regarding political dynamics at the domestic and international level. This contribution, however, will specifically focus on the massive purges occurring in the aftermath of the failed coup and the human rights implications of these violations within the ambit of the European Court of Human Rights’ jurisprudence, with a specific focus on the example of lustration.

Turkey’s current de-Gülenization movement has employed harsh measures, including torture and ill treatment of detainees, arbitrary detention of people in the absence of due process, as well as the screening, suspension, and dismissal of tens of thousands of teachers, public employees, judges, prosecutors, academics, and journalists accused of aligning themselves with the Gülen movement. The recent Decree-Law no. 672 enacted under the state of emergency does not only regulate the dismissal of public officials who are related to FETÖ (“Fethullah Gülen Terror Organization”, accused of creating a parallel state and organizing the coup attempt), but also bans them from working in the public field in the future, aiming to sweep out the influence of this movement from state institutions as well as the private sector. All these measures violate the European Convention on Human Rights (“the ECHR” or “the Convention”) and go beyond what can be justified even under the state of emergency invoked by the Turkish government.

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Al-Dulimi and Montana Management Inc. v. Switzerland: Norm conflict between UNSC Resolution and ECHR?

Guest post by Cedric De Koker, Phd Researcher, IRCP, Ghent University.

On 21 June 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the case of Al-Dulimi and Montana Management Inc. v. Switzerland (no. 5809/08). At issue was a potential norm conflict between the obligations stemming from a United Nations Security Council (UNSC) Resolution and the protections offered by the European Convention on Human Rights (ECHR), a recurrent theme in the Strasbourg jurisprudence (see amongst others the Al Jedda and Nada-judgments).

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Baka v. Hungary: judicial independence at risk in Hungary’s new constitutional reality

By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)

On 23 June 2016 the Grand Chamber of the European Court of Human Rights held that Hungary violated the right of access to a court (article 6, §1 ECHR) and the freedom of expression (article 10 ECHR) of András Baka, the former President of the Hungarian Supreme Court (now: Kúria). Several constitutional and legislative reforms led to the early termination of Mr. Baka’s mandate, expelling the critical judge from the highest office in the Hungarian judiciary, without providing any possibility for judicial review. The judgement is only the latest episode in a series of worldwide condemnations of Hungary’s new constitutional and human rights reality.

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Neighbourly Murders* , Forced Forgetting and European Justice – Marguš v Croatia

This guest post was written by Carole Lyons, Law School, RGU, Scotland

On 27 May 2014, a Grand Chamber of the ECtHR, in Margus v Croatia, pronounced upon the contentious issue of the use of amnesties in post-conflict settings. The case concerned a Croatian army commander who had been convicted of several murders of civilians in 1991. He had benefited from an amnesty in relation to the murders in 1997 but in 2007 was convicted of war crimes. Just two months before Croatia became a signatory to the European Convention on Human Rights (ECHR) in November 1996, the Croatian Parliament had passed a Law on General Amnesty.[1] Under the provisions of the latter, immunity from prosecution was granted in relation to crimes committed during the war which took place between 1991 and 1995 after Croatia’s declaration of independence from the former Socialist Federal Republic of Yugoslavia. Continue reading

Lawyer-client confidentiality at risk following Strasbourg’s decision in Öcalan v. Turkey

This guest post was written by Daniel Machover, Charles Kuhn and Christopher Honnery, respectively Head of the Civil Litigation Department, In-house Criminal and Regulatory Barrister, and Legal Researcher at Hickman and Rose.

 

The European Court of Human Rights’ (“ECtHR”) Chamber judgment in the case of Öcalan v. Turkey (No. 2) does nothing to further the debate on lawyer-client privilege. The ECtHR missed an important opportunity to confine the creeping interference with privilege that has characterised the post 9/11 world.

This decision was eagerly awaited in the UK because of the unsatisfactory framework left by the 2009 House of Lords decision in a Northern Irish case, In Re McE. In that instance an Irish solicitor, Manmohan Sandhu, had been convicted after security forces secretly recorded him inciting paramilitary clients to commit murder. A number of terrorist suspects subsequently sought assurances that their legal meetings were not subject to surveillance. The House of Lords ruled that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) permits the RIPA Code of Practice on Covert Surveillance to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. They rejected arguments that the express terms of the Police and Criminal Evidence Act 1984 (PACE), as well as the common law on privilege, prevented electronic surveillance of privileged conversations. Since then there has been an amendment to RIPA to clarify that such surveillance must be judge authorised, and an amendment to the Code of Practice to clarify that it is justified only to prevent threat to national security “or to life and limb” – a criterion so loose as to be nearly meaningless.

In reaching its decision the House of Lords reviewed European case law but omitting consideration of S and Marper v UK, where the ECtHR had elaborated the limits to the state’s margin of appreciation and defined very clearly the need for proportionality in Article 8 cases. A number of commentators have opined that the European Court was unlikely to overturn the principle set out In Re McE but that it could – and should – clarify the proportionality question which the House of Lords had left unanswered. The case of Öcalan v Turkey was an opportunity to do just that.

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