On 13 December 2012, the Grand Chamber of the European Court of Human Rights delivered its judgment in El-Masri v. The former Yugoslav Republic of Macedonia. Fiona de Londras has set out the background to the case in her post here.
The decision has already been praised by NGOs and some international organisations. Jean-Claude Mignon (President of the Parliamentary Assembly of the Council of Europe) declared: ”This judgment can be called historic: it is the first condemnation, by an international court, of the CIA practice of renditions and secret detentions, which the Court has likened to enforced disappearance and cruel and inhuman treatment’. Amnesty International has also emphasised the importance of this case by saying that ‘today’s ruling was significant because for the first time it holds a European state accountable for its involvement in the secret US-led programme.’ Continue reading Judicial Condemnation of Extraordinary Rendition: El-Masri v. The Former Yugoslav Republic of Macedonia
It is sometimes forgotten that every international institution is made up of people – lawyers, judges, assistants, policy makers. The European Court of Human Rights (ECtHR) is not an exception; it is built up of professional lawyers who go through extremely competitive selection procedures. The Court is careful in selecting its staff. The Court elected its new president (Dean Spielmann, Luxembourg) just three days ago. Judge Spielmann is one of the prominent members of the ECtHR bench. However, not all staff-related policies are decided as rationally and beneficially for human rights protection as this election of the President.
Continue reading One of the Keys to the ECtHR Problems
We are delighted to welcome this guest post by Rónán Ó Fathaigh. Rónán is a PhD candidate at Universiteit Gent, Belgium, researching the right to freedom of expression and the chilling effect doctrine. Rónán is a graduate of NUI, Galway, and has previously worked as a legal researcher with RTÉ Solicitors’ Office. In January 2011, the First Section of the European Court of Human Rights held in Mouvement Raëlien Suisse v. Switzerland that there had been no violation of the right to freedom of expression where Swiss police authorities had banned a poster campaign by a quasi-religious association. Two section presidents dissented, and in a previous post I pointed to the strong likelihood of the judgment being reconsidered by the Grand Chamber, given the important principles involved. Fast forward to July 2012, and the Grand Chamber has affirmed the chamber judgment by the narrowest of margins, a 9-8 vote.
The applicant association was the Swiss branch of the Raëlien Movement, an international association whose members believe life on earth was created by extraterrestrials. The association sought to conduct a poster campaign, with the posters featuring extraterrestrials, flying saucers, and the words “The message from the extraterrestrials. At last science replaces religion”. The poster also included the website address of the Raëlien Movement.
The police authorities refused permission for the poster campaign on the grounds of public order and morals, and the domestic courts upheld this decision. The Swiss courts held that although the poster itself was not objectionable, because the Raëlien website address was included, the Court had to have regard to documents published on the website. The courts held the poster campaign could be banned on the basis that: (a) there was a link on the website to a company proposing cloning services; (b) the association advocated “geniocracy” i.e. government by those with a higher intelligence; and (c) there had been allegations of sexual offences against some members of the association.
The association made an application to the European Court arguing that the ban on its poster campaign violated its right to freedom of expression under Article 10. The First Section held by five votes to two that there had been no violation of Article 10. The crux of the First Section’s judgment was the Continue reading Banning Speech in the Public Space: Grand Chamber Agrees
The Centre for Disability Law and Policy recently prepared a submission to the Oireachtas Justice Committee on the Scheme of proposed legislation that will radically overhaul Irish law on legal capacity. The full submission is available here.
The core message of the submission was that the fields of mental health law, non-discrimination, and legal capacity can no longer be considered separately. In this regard the Convention on the Rights of Persons with Disabilities “recognises that considering these issues in separate silos was wrong and that the artificial lines drawn between these separate fields are increasingly blurred” and it is important to consider the impact the proposed legal capacity legislation on general non-discrimination provisions and mental health law in particular. The submission highlighted that Article 12 of the CRPD on legal capacity is at the core of the Convention and that equal recognition as a person before the law is key to the enjoyment of all other rights. The submission also flagged that the assumption of legal capacity, and the obligation on states to provide supports to people with disabilities in order to enable them to exercise their legal capacity flows from this recognition, and these are the key attributes, which need to be embedded in Irish law, in order to ensure compliance Continue reading Moving Towards Modern Legislation on Legal Capacity in Ireland
The UK Supreme Court has found in Cadder v Her Majesty’s Advocate that the use of material obtained in a police interview in Scotland without legal representation is in breach of Article 6(1) and 6(3)(c) of the ECHR.
Under the Criminal Procedure (Scotland) Act 1995, a police constable may detain a person whom he has reasonable grounds to suspect has committed an imprisonable offence for up to six hours, during which time he may be questioned. Although the detainee is entitled to have a solicitor informed of his detention, he has no right of access to a solicitor. Cadder had been detained and interviewed without a lawyer being present, and he made a number of admissions which were admitted at trial. He was convicted in the sheriff court in Glasgow.
The relevant ECHR case is Salduz v Turkey where the Grand Chamber of the European Court of Human Rights unanimously held that Articles 6(1) and 6(3)(c) of the ECHR were breached by virtue of Salduz not having legal advice when in police custody. Nevertheless, in a subsequent Scottish case, Her Majesty’s Advocate v McLean, the High Court of Justiciary (sitting with a bench of seven judges) held that Articles 6(1) & 6(3)(c) were not violated by the reliance on admissions made by a detainee who did not have access to a solicitor. This was predicated on the view that a fair trial was guaranteed by safeguards in the Scottish criminal process, such as the requirement that all evidence be corroborated and the absence of inference-drawing provisions. Cadder sought to appeal against his conviction, but leave to appeal was refused in Scotland based on McLean. Continue reading The UK Supreme Court and the right of access to a lawyer in Scotland