Issue 46 September 2009 - Human Rights Stop Press: Ireland, Iraq

One piece of news which broke as this issue was going to press was that the Chamber of the Court to which the case of A, B and C v Ireland (App. No.25579/05) had been allocated has relinquished jurisdiction in favour of the Grand Chamber of the Court. The applicants, all three of whom live in Ireland, travelled to the United Kingdom to have an abortion. They complain about the restrictions
on the possibility of abortion in Ireland. The Court will hold a hearing in the case on December 9, 2009. This is likely to prove to be a very important decision in a highly emotive and contentious area. There are a number of arguments advanced in this case. The third applicant complained that the restriction on abortion, and the lack of clear legal guidelines regarding the circumstances in which a woman may have an abortion to save her life, infringed upon her right to life under art.2. All three applicants complained that the restriction on abortion stigmatised and humiliated them and risked damaging their health in breach of art.3. They further complained, under art.8, that the national law on abortion was not sufficiently clear and precise, since the Constitutional term “unborn" was vague and since the criminal prohibition was open to different interpretations. The fact that it was open to women - provided they had sufficient resources - to travel outside Ireland to have an abortion defeated the aim of the restriction and the fact that abortion was available in Ireland only in very limited circumstances was disproportionate and excessive.
The restriction was, in addition, discriminatory in breach of art.14 in that it had placed an excessive burden on them, as women, and particularly on the first applicant, a poor woman, who had found it more difficult to travel. Finally, the applicants complained under art.13 that the State had failed to provide them with an effective domestic remedy.

Apart from this the Strasbourg Court has been busy as always and summarised below are some of the most recent decisions of the Court.

Also emotive and showing the potential geographical reach of the ECHR is the case of Al-Saadoon & Mufdhi v United Kingdom (App. No.61498/04) where a Chamber of the European Court of Human Rights has declared partly admissible an application which concerns the complaint by the applicants accused of involvement in the murder of two British soldiers shortly after the invasion of Iraq in 2003. Their concern is that the British authorities transferred them to Iraqi custody in December 2008 and that they are at real risk of being subjected to an unfair trial followed by execution by hanging.
The applicants are Sunni Muslims from southern Iraq and former senior officials of the Ba’ath party. Following the invasion of Iraq on March 20, 2003, the applicants were arrested by British forces and detained in British-run detention facilities “for imperative reasons of security”. Their notices of internment stated that they were suspected of being senior members of the Ba’ath Party under the former regime and of orchestrating violence against the coalition forces. In October 2004 the Special Investigations Branch of the UK’s Royal Military Police, concluded that there was evidence that the applicants had been involved in the murder of two British military policemen.
In December 2005, the British authorities decided to refer the murder case against the applicants to the Iraqi criminal courts. In May 2006 an arrest warrant was issued against them under the Iraqi Penal Code and an order was also made authorising their continued detention by the British Army in Basra. The cases were then transferred to Basra Criminal Court which decided that the allegations against the applicants constituted war crimes and therefore fell within the jurisdiction of the Iraqi High Tribunal or “IHT”, a court set up under Iraqi national law, to try Iraqi nationals or residents accused of genocide, crimes against humanity and war crimes allegedly committed during the period July 17, 1968 to May 1, 2003 and to impose sentences in line with Iraqi law, including the death penalty which was reintroduced to the Iraqi Penal Code in August 2004. In December 2007 the IHT formally requested the British forces to transfer the applicants into its custody; repeated requests were made to that effect until May 2008.
In June 2008, the applicants brought judicial review proceedings in England challenging, among other things, the legality of their transfer. The case was heard by the English Divisional Court which declared the proposed transfer lawful. The court found that since the applicants were held in a British military detention facility, albeit since May 18, 2006 on the order of the Iraqi Criminal Court, they were within the jurisdiction of the UK as provided by art.1 (obligation to respect human rights) of the ECHR. However, under public international law the UK was obliged to surrender the applicants unless there was clear evidence that the receiving State intended to subject them to treatment so harsh as to constitute a crime against humanity. The evidence before it fell far short of establishing substantial grounds for believing there to be a real risk that, on being transferred, a trial against the applicants would be flagrantly unfair or that they would face torture and/or inhuman and degrading treatment. Moreover, although it found that there was a real risk that the death penalty, contrary to Protocol No.13 (abolition of the death penalty) to the Convention which had entered into force in respect of the UK in February 2004, would be applied if the applicants were surrendered to the Iraqi authorities, the death penalty in itself was not prohibited by international law.
The applicants’ appeal was refused by the Court of Appeal on December 30, 2008. It was accepted that there was a real risk that the applicants would be executed but, as they were being held within another sovereign State, they did not fall within the UK’s jurisdiction, and the UK therefore had no discretionary power of its own to hold, release or return the applicants. The UK was in essence detaining the applicants only at the request and order of the IHT and was obliged to return them to the IHT in accordance with UK / Iraq
arrangements. In any event, even if the applicants did fall within the UK’s jurisdiction, the death penalty was not contrary to international law and there was no evidence that there would be a crime against humanity or torture if the applicants were transferred. In those circumstances the UK’s obligation to respect Iraqi sovereignty and transfer the applicants had to take precedence.
Immediately after that decision, the applicants applied to the European Court for an interim measure under Rule 39 of its Rules of Court to prevent the British authorities making
the transfer. On December 30, 2008 the Court indicated to the UK Government that the applicants should not be removed or transferred from their custody until further notice. The following day the UK Government informed the Court that, principally because the UN Mandate, which authorised the role of British forces in arrest, detention and imprisonment tasks in Iraq, was due to expire at midnight on December 31, 2008, exceptionally they could not comply with the measure indicated by the Court and that they had transferred the applicants to Iraqi custody earlier that day. On February 16, 2009 the applicants were refused leave to appeal by the House of Lords.
The applicants’ trial before the IHT commenced on May 11, 2009. If convicted, they will have 28 days from the date of the verdict to make an appeal.
The applicants complain about their transfer to Iraqi custody. They rely on arts 2, 3 and 6 and art.1 of Protocol No.13 (abolition of the death penalty). They also complain about the fact that that they were transferred to the Iraqi authorities despite the Court’s indication under Rule 39 of its Rules of Court, in breach of art.13 and their right to an effective remedy and art.34, the right of individual petition.
As concerned the preliminary issue of jurisdiction, the Court considered that the United Kingdom authorities had total and exclusive control, first through the exercise of military force and then by law, over the detention facilities in which the applicants were
held. The applicants were therefore within the UK’s jurisdiction and remained so until their physical transfer to the custody of the Iraqi authorities on December 31, 2008.

The Court further considered that the applicants’ complaints that, at the moment they were transferred, there were substantial grounds for believing that they were at real risk of being subjected to an unfair trial before the IHT followed by execution, raised serious questions of fact and law which were of such complexity that they had to be determined on an examination of the merits. Those complaints under arts 2, 3 and 6 and 1 of Protocol No.13 were therefore declared admissible. The issue of the admissibility of the complaints under arts 13 and 34, closely connected to those complaints, were joined to the merits of the case.
The complaints concerning ill-treatment and/or extra-judicial killing in Rusafa Prison were, however, declared inadmissible as the applicants had not exhausted all available domestic remedies before the British courts.

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On July 9, 2009 the Court gave judgment in the case of Moon v France (App. No.39973/03). The Court held unanimously that there had been a violation of art.1 of the First Protocol on account of a penalty imposed on the applicant for failing to declare a
sum of money at the French-Swiss border, namely the confiscation of the part of the sum in excess of the declaration threshold together
with a fine.
The applicant, a British national, who when passing through customs at the French- Swiss border on his way to France, was found to be in possession of an undeclared sum equivalent to EUR 48,084, in breach of an obligation to declare sums over EUR 7,622. The amount by which that threshold was exceeded (EUR 40,422) was seized from Mr Moon, who explained that the money was part of a loan he had taken out with a Swiss company and was intended for the purchase of a house or a sports car.
On October 3, 2001 he was convicted of failing to declare a sum of money and fined 40,000 French francs (EUR 6,098). The fine was to be taken from the sum seized and the remainder returned to him. The court noted that Mr Moon had not been acting on behalf of a secret or mafia-type organisation, since he had shown that his possession of such a sum was consistent with his level of income
and personal assets.
Further to appeals lodged by the customs authorities and Mr Moon, the court upheld his conviction, but ordered the confiscation of the sum in excess of the declaration threshold (EUR 40,422) and raised the fine to one quarter of the total sum that had been in his possession when crossing the border (EUR 12,021). An appeal on points of law by Mr Moon was dismissed. Relying on art.1 of the First Protocol Mr Moon complained, in particular, that the penalty imposed on him for failing to declare a sum of money to the customs authorities, namely the confiscation of the part of the sum in excess of the declaration threshold, together with a fine, was disproportionate to the offence in question.
The Court held that the interference by the authorities in Mr Moon’s right to the protection of his property had been provided for by law and had pursued an aim in the general interest, namely to prevent the laundering of money from drug trafficking. The Court observed, however, that in the light of the evidence before it, Mr Moon had never been prosecuted or convicted, in the United Kingdom or France, for money laundering or any related offences.
The Court took into consideration the significant amount of the penalty imposed on Mr Moon which reached a total of EUR 52,443 by combining the confiscation of the sum in excess of the declaration threshold (EUR 40,422) with a fine corresponding to one quarter of the total sum in his possession at the border (EUR 12,021). The Court held that this penalty was disproportionate to the offence committed and that its imposition had not struck a fair balance between the general interest and the applicant’s fundamental rights, in violation of art.1 of Protocol No.1.

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On July 30, 2009 in Dattel v Luxembourg (No.2) (App. No.18522/06) the Court held unanimously that there had been a violation
of art.6(1) but no violation of art.1 of the First Protocol concerning the rejection of an appeal on points of law lodged by the applicants.
The four applicants, Dany and Margot Dattel and their children Sascha and Nathalie Dattel, are German nationals who live in Cologne (Germany). Dany Dattel’s mother, R.F., invested in currency futures with the H.B. Luxembourg bank (“HBL”), a subsidiary of HBK in Cologne. HBL went into liquidation and, in a first set of proceedings, R.F. and subsequently the applicants, as her heirs, unsuccessfully sought an order for payment of the debt owed to them by the bank. The bank argued that the debt was null and void. According to an expert report, money had been paid into R.F.’s account from another account credited through fraudulent transactions effected by Dany Dattel, the head of HBK’s currency operations in Cologne. On that basis the County Court declared the debt null and void.
In August 2005 the Court gave a judgment in which it found a violation of art.6 on account of the length of the proceedings. In July 2001 the applicants instituted a second set of civil proceedings with a view to recovering their debt, but without success. On October 30, 2002 the County Court declared the application inadmissible because the court decisions pronounced in the first set of proceedings were res judicata.
In November 2005 the Court of Cassation dismissed an appeal on points of law by the applicants on account of the vagueness of their grounds of appeal, which it considered were “a string of grounds for opening cassation proceedings, reproduced piecemeal in the different limbs, with no logical connection between them, making it impossible to grasp their meaning and scope”.
Relying on art.6(1) and art.1 of the First Protocol the applicants alleged that the dismissal of their appeal on points of law had breached their right of access to a court and that the decisions against them had infringed their right to the peaceful enjoyment of their possessions.
Under art.6(1) the Court noted that the requirement for clarity in the wording of grounds for appeal on points of law pursued the legitimate aim of enabling the Court of Cassation to perform its judicial review function. The applicants’ main complaint before the Court of Cassation was that the appellate courts had refused to examine their rights in respect of the first bank account because other judges had already examined their rights in respect of the second account. The Court of Cassation had dismissed
their appeal on points of law on account of the vagueness of their grounds of appeal.
The European Court found that the clarity required by the Court of Cassation was not absolutely essential in order for it to carry out its review function. Such a requirement considerably diminished the protection afforded by the Supreme Court. However in its overly formalistic approach, the dismissal of the applicants’ appeal had prevented them from having the Court of Cassation examine
the merits of their case. The Court accordingly found that the restriction imposed on their right of access to a court was not proportionate to the aim of guaranteeing legal certainty and the proper administration of justice, and held that there had been a violation of art.6(1).
In relation to art.1 of the First Protocol, the Court saw nothing arbitrary in the manner in which the domestic courts had reached the conclusion that the debt in respect of both bank accounts had been illegal. The alleged debt had not been sufficiently established to qualify as an “asset” attracting the protection of the Article.

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On July 28, 2009 in Lee Davies v Belgium (App. No.18704/05) the Court held unanimously that there had been no violation of art.6(1).
The applicant, Lee Martin Davies, is a British national who was in Belgium in 1998 when police officers entered private land, without a search warrant, and discovered the applicant and another person, the tenant of the site, as well as a large quantity of cannabis. On the basis of the evidence thus obtained, Mr Davies was charged of drug trafficking and conspiracy. He was acquitted at first instance in May 2001 because the evidence against him had been obtained illegally.
The public prosecutor appealed against that decision, arguing that the police officers had acted in accordance with Belgian law, under which police officers could at any time enter “places accessible to the public” and “abandoned immovable property”. The Ghent Court of Appeal convicted the applicant in June 2004, holding that although only part of the search had been lawful, the fairness of the trial, taken as a whole, had not been affected. An appeal on points of law lodged by the applicant was dismissed on November 16, 2004.
Mr Davies complained in particular of a violation of art.6(1) as the evidence on the basis of which he had been prosecuted had been obtained illegally.
The Court held that the question of admissibility of evidence was primarily a matter for national law. The Court’s role was to ascertain whether the proceedings taken as a whole, including the way in which the evidence was collected, had been fair. The Court noted that the Ghent Court of Appeal had found that the search had not been fully legal, but that this had not affected the value of the evidence collected, and no violation of the right to respect for private life and home had been established.
In considering whether the proceedings taken as a whole were fair, it was important to ascertain whether the rights of the defence had been respected and, in particular, whether the applicant had had an opportunity to challenge the authenticity of the illegally obtained evidence and to object to its use. When the quality of the evidence was very sound and admitted no doubt, the need for further evidence to support it decreased.
In Mr Davies’ case the circumstances in which the impugned evidence had been obtained shed no doubt whatsoever on its reliability or accuracy. Furthermore, he had had an opportunity to challenge the evidence at three levels of jurisdiction and to object to its use and to the resulting findings. The merits of the criminal charges against Mr Davies had therefore been examined fairly, in keeping with the requirements of art.6(1) and there had been no violation of that provision of the Convention.