ECHR Rules Terrorism justifies closed courts

courtclosedEuropean Court of Human Rights

published: January 15, 2016

Sher and Others v United Kingdom (Application No 5201/11)

Before G. Raimondi, President and Judges P. Hirvelä, L, Bianku, N. Tsotsoria, P. Mahoney, F. Vehabović and Y. Grozev

Section Registrar: F. Elens-Passos

Judgment: October 20, 2015

The right of suspected terrorists to take proceedings to challenge the lawfulness of their detention did not preclude the use of closed court hearings, at which neither the detainee nor his lawyer was present, for the submission of confidential information supporting the authorities’ line of investigation.

The European Court of Human Rights (Judge Vehabović dissenting) so held, inter alia, in determining that there had been no violation of the right of the applicants, Sultan Sher, Mohammed Rizwan Sharif and Mohammed Umer Farooq, to take proceedings to challenge the lawfulness of their detention, as guaranteed by article 5.4 of the European Convention on Human Rights, at hearings for warrants of further detention on expiry of the initial 48 hours permitted under the Terrorism Act 2000 following their arrest as part of a counterterrorism operation. The applicants were detained for a total of 13 days before being released without charge.

THE COURT said that the threat of an imminent terrorist attack had justified restrictions on the applicants’ article 5.4 rights. Terrorism fell into a special category.

Article 5.4 could not preclude the use of a closed court hearing for the submission of confidential sources of information supporting the authorities’ line of investigation. It could not be applied in such a manner as to put disproportionate difficulties in the way of police authorities in taking effective measures to counter organised terrorism.

Moreover, the legal framework under Schedule 8 to the 2000 Act, governing proceedings for warrants of further detention, had set out clear and detailed procedural rules enabling the applicants to know the nature of the allegations against them and, with legal representation, to have the opportunity to refute those allegations and to participate effectively in proceedings concerning their continued detention.

Furthermore, the applicants and their legal advisers had been given reasons for the withholding of certain information. The information to be withheld had been limited to the further inquiries to be conducted and had been submitted to a judge who, in closed session, had been able to ensure that no material had been unnecessarily withheld from the applicants and to determine, in their interests, whether there had been reasonable grounds for believing that their further detention had been necessary.

Indeed, even in the absence of express provision in the relevant law, the judge had had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings. Significantly, the applicants had not requested the appointment of a special advocate.

Whole life sentence to be re-examined

A triple killer’s claim that his whole-life prison sentence breaches his human rights is to be re-examined by European judges.

Arthur Hutchinson’s case will be considered again after it was referred to the Grand Chamber of the European Court of Human Rights (ECHR).

Earlier this year a judgment from the Strasbourg court ruled that there had been no violation.

However, Hutchinson applied for the case to be passed to the ECHR’s Grand Chamber. It has now emerged that his request has been accepted after it was assessed by a panel of five judges.

After an original Chamber judgment has been delivered, parties are able to ask for a referral to the Grand Chamber for fresh consideration. Requests are accepted on “an exceptional basis”, according to the ECHR’s website.

No details of the reason for referring Hutchinson’s case have been released.

The move will bring fresh scrutiny of the protracted issue of “life means life” terms.

Hutchinson was jailed in 1984 for stabbing Basil and Avril Laitner to death after breaking into the couple’s Sheffield home, and then killing one of their sons.

The judge in his original trial ruled that he should serve 18 years but then-home secretary Leon Brittan later determined he should face the whole-life tariff.

In 2008, Hutchinson had a domestic appeal against whole-life tariffs kicked out by the Court of Appeal.

He was the first Briton to challenge the sentence after a controversial ruling by the Grand Chamber of the European Court of Human Rights in July 2013 that whole-life tariffs breach human rights.

The Strasbourg-based court held that there had been a violation of Article 3 of the European Convention on Human Rights – which relates to inhuman and degrading treatment – on the basis that whole-life orders were not “reducible”.

In that decision judges did not say whole-life sentences were incompatible with the convention, but that there had to be the possibility of a review at some stage and that current laws allowing for release in exceptional circumstances were unclear.

Relying on Article 3, Hutchinson claims that his whole life sentence amounts to “inhuman and degrading treatment” as he has no hope of release.

Court of Appeal judges ruled last year that the Grand Chamber was wrong when it said in a previous ruling that the law of England and Wales did not clearly provide for “reducibility”, saying the domestic law “is clear as to ‘possible exceptional release of whole-life prisoners'”.

They underlined the power given to the Secretary of State to release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.

In February judges at the ECHR found by a majority that they consider the legal situation in the UK to be in line with human rights laws, ruling that in Hutchinson’s case there was no violation of Article 3 as the Secretary of State has the power to review whole-life sentences.

Mark Leech editor of the national prisoners newspaper Converse said he would expect the re examination of the whole life tariff to uphold the original decision.

Mr Leech said “It would be an extraordinary state of affairs if someone could murder three people and expect that one day they could once again walk the streets – I just dont think the public would either understand or accept that.”

Prisoner voting ban breaches human rights

ballot-box

The rights of more than 1,000 UK prisoners were breached when they were prevented from voting in elections, European judges have said.

But the European Court of Human Rights (ECHR) rejected the applicants’ claims for compensation and legal costs.

The case before the ECHR concerned 1,015 prisoners who were behind bars throughout various elections between 2009 and 2011.

Grouping together all of the long-standing prisoner voting cases against the UK, the court ruled that there had been a violation of Article 3 of the European Convention on Human Rights – right to a free election.

In August last year the court made a similar ruling, endorsing previous cases where it was found that the blanket ban was a breach.

In September 2014, the Council of Europe’s Committee “noted with profound concern and disappointment that the United Kingdom authorities did not introduce a Bill to parliament at the start of its 2014-2015 session as recommended by the competent parliamentary committee”.

It urged the United Kingdom authorities to introduce such a Bill as soon as possible, and will come back to the issue later this year.

Mark Leech editor of Converse the national newspaper for prisoners in England and Wales said the judgement perhaps showed that we are better off out of the European court of human rights altogether.

Mr Leech said: “This judgement shows that we are perhaps better off out of the European court of human rights with, instead, an enforceable bill of rights rather than be in cahoots with a court where it’s judges have no bottle.

“How can a court declare that the human rights of over a thousand people have been consistently and unlawfully ignored in breach of the convention and yet neither compensation nor costs are recoverable?”

Court ruling due on prisoner voting

ballot-box

European judges are set to rule on whether the rights of 1,015 serving prisoners in the UK were breached when they were prevented from voting in elections.

The European Court of Human Rights (ECHR) is due to announce its judgment on prisoner voting rights tomorrow.

It will cover applications brought by more than a thousand people who were in jail throughout various elections between 2009 and 2011.

The ruling will group together all of the long-standing prisoner voting cases against the UK that have been pending before the court.

In August last year the ECHR ruled that the rights of 10 prisoners had been violated in relation to Article 3 of the European Convention of Human Rights – right to a free election.

Judges said they reached the conclusion as the case was identical to another prisoner voting case in the UK, in which the blanket ban was deemed a breach.

The court rejected the applicants’ claim for compensation and legal costs, after an earlier judgment made it clear that it was unlikely to award even expenses in such cases.

In September 2014, the Council of Europe’s Committee “noted with profound concern and disappointment that the United Kingdom authorities did not introduce a bill to parliament at the start of its 2014-2015 session as recommended by the competent parliamentary committee”.

It urged the United Kingdom authorities to introduce such a bill as soon as possible, and will come back to the issue later this year.

European Court Rules Whole Life Sentences Lawful

Arthur Hutchinson
Arthur Hutchinson

Triple killer Arthur Hutchinson, who murdered three members of the same family in Sheffield, has lost his challenge at the European Court of Human Rights against his whole-life prison sentence.

The judgment is the latest development in the protracted legal wrangle over “life means life” terms.

Hutchinson was jailed in 1984 for stabbing wealthy couple Basil and Avril Laitner to death after breaking into their Sheffield home on the night of their daughter’s wedding, then killing one of their sons.

He was the first Briton to challenge the sentence after a controversial ruling by the Grand Chamber of the European Court of Human Rights in July 2013 that whole-life tariffs breach human rights.

The Strasbourg-based court held that there had been a violation of Article 3 of the European Convention on Human Rights – which relates to inhuman and degrading treatment – on the basis that whole-life orders were not “reducible”.

The court did not say whole-life sentences were incompatible with the convention, but said there had to be the possibility of a review at some stage and that current laws allowing for release in exceptional circumstances were unclear.

But judges ruled on Tuesday that in Hutchinson’s case there was no violation of Article 3 as the Secretary of State has the power to review whole-life sentences.

Court of Appeal judges ruled last year that the Grand Chamber was wrong when it said the law of England and Wales did not clearly provide for “reducibility”, saying the domestic law “is clear as to ‘possible exceptional release of whole-life prisoners'”.

They underlined the power given to the secretary of state to release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.

In Tuesday’s judgment the European judges found by a majority that they consider the legal situation in the UK to be in line with human rights laws.

In their written ruling, they said: “In the circumstances of this case where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the court must accept the national court’s interpretation of domestic law.”

Mark Leech editor of The Prisons Handbook for England and Wales said he was disappointed by the ruling.

Mr Leech said: “I wish they had been more courageous, there were grounds for doing so, but I suspect they were concerned not to increase the already trenchant criticism of the ECHR interferring in UK domestic matters.”

The list of whole-lifers includes some of the most notorious prisoners in Britain, including one-eyed police killer Dale Cregan, who lured Pcs Nicola Hughes and Fiona Bone to their deaths in a gun and grenade attack; Mark Bridger, who murdered five-year-old April Jones; and Moors murderer Ian Brady.

Six years ago, Hutchinson had a domestic appeal against whole-life tariffs kicked out by the Court of Appeal.

The judge in his original 1984 trial at Sheffield Crown Court ruled that he should serve 18 years but then-home secretary Leon Brittan later ruled he should face the whole-life tariff.

‘Cowardly judges’ say prisoners’ breach of human rights doesn’t deserve costs or compensation

ballot-box

In a decision said to be ‘cowardly’ European Judges have ruled that denying the vote to a group of prisoners was a breach of human rights, although no compensation or costs should be paid to them saying the ruling in their favour was enough.

The group, who are prisoners in Scottish jails, argued the UK’s ban on them voting in the 2009 European elections breached their human rights.

The UK has already been told it must allow some prisoners to vote.

Both the previous Labour government and current coalition have failed to legislate to change the law – although Parliamentarians have been considering various proposals from ministers to end the long-running row with the Strasbourg court.

In the latest case, the court – which oversees human rights law that the UK signed up to – had been asked to award damages to the inmates because of the UK’s repeated failure over almost a decade to end the blanket ban on voting.

But although the court said the inmates, who include sex offenders, had suffered a breach of their rights, they were not entitled to any compensation.

In their ruling, judges said that in the vast majority of cases relating to prisoners’ votes they had had “expressly declined” to order governments to make payments to convicted criminals.

“As in those cases, in the present case the court concludes that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants,” said the latest ruling.

They also refused to order the British government to pay the inmates’ legal costs.

In a dissenting ruling, one of the judges complained the case should never have come before the court – because it had repeatedly demonstrated that it had no settled view over votes for prisoners – making it even harder for individual governments to work out what to do to avoid further claims.

Responding to the judgement, a spokesman for the Ministry of Justice said: “The Government has always been clear that it believes prisoner voting is an issue that should ultimately be decided in the UK.”

Convicted prisoners in the UK have been long banned from voting on the basis that they have forfeited that right by breaking the law and going to jail. Other European nations have the same ban in place – although the majority allow some prisoners to vote in some circumstances.

In 2004 the ECHR in Strasbourg ruled that a UK blanket ban on prisoners voting was unlawful after it received a claim from convicted killer John Hirst. The following year that judgement became final after the UK lost an appeal – piling pressure on ministers to change the law.

Seven years later, MPs voted to keep the ban on prisoner voting – excluding those on remand.

In December 2013, a cross-party committee of MPs concluded that prisoners serving a jail term of a year or less should be entitled to vote – but so far this has not been enacted.

Prime Minister David Cameron has previously said that inmates will not be given the right to vote under his government, and said that the idea made him feel “physically sick”.

Last October convicted murderers Peter Chester and George McGeoch lost a bid at the Supreme Court to win prisoners the right to vote in light of the ECHR’s original 2004 ruling.

Mr Cameron described that particular decision as “a great victory for common sense”. Had the court ordered compensation, ministers would have faced the prospect of paying similar sums to hundreds of other cases before the courts.

Mark Leech editor of Converse the national newspaper for prisoners in England and Wales said the judges lacked courage.

Mr Leech said: “Where in any other court could a claimant win a case for a breach of human rights and not be afforded either their costs or appropriate compensation?

“Our judges have become political animals, swayed by politicial not judicial considerations, instead of being cowards they should have been more courageous and done what justice demanded to be right.”

Notorious Abu Ghraib Prison Closed

Abu_Ghraib_prison_abuse

Iraqi authorities have closed down a notorious prison west of Baghdad over security concerns, the justice minister said.

Hassan al-Shimmari said that 2,400 inmates have been transferred from Abu Ghraib to other prisons in safer areas of the country.

He said it was a precautionary measure because the Abu Ghraib facility is located in “a restive area”.

The prison is at the edge of the Sunni-dominated Anbar province, which has been engulfed in clashes between an al Qaida splinter group and government forces.

Last July, militants attacked Abu Ghraib and another prison, setting free hundreds of inmates, including many militants. Dozens of other inmates and security personnel were killed in the attack.

Under US troops, Abu Ghraib was at the centre of a 2004 scandal over detainee abuse.

Supreme Court recognises transgender as third gender

india-transgender

In a landmark judgment, the Indian Supreme Court has created the “third gender” status for transgendered people when until now they were forced to write male or female against their gender.

They are now to be known as belonging to an ‘Other Backward Class’ – OBC.

Other Backward Class (OBC) is a collective term used by the Government of India to classify castes which are educationally and socially disadvantaged. It is one of several official classifications of the population of India, along with Scheduled Castes and Scheduled Tribes (SCs and STs). The OBCs were found to comprise 52% of the country’s population by the Mandal Commission report of 1980, a figure which had shrunk to 41% by 2006 when the National Sample Survey Organisation took place.

The SC asked the Court to treat transgender as socially and economically backward or disadvantaged.

The apex court said that transgenders will be allowed admission in educational institutions and given employment on the basis that they belonged to the third gender category.

The SC said absence of law recognizing a third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.

This is for the first time that the third gender has got a formal recognition. The third gender people will be considered as OBCs, the SC said.

The SC said they will be given educational and employment reservation as OBCs.

The apex court also said states and the Centre will devise social welfare schemes for third gender community and run a public awareness campaign to erase social stigma.

The SC said the states must construct special public toilets and departments to look into their special medical issues.

The SC also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and can not be discriminated.

The apex court expressed concern over transgenders being harasssed and discriminated in the society and passed a slew of directions for their social welfare.

The apex court said that trangenders were respected earlier in the society but situation has changed and they now face discrimination and harassment.

It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.

The bench clarified that its verdict pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are also considered under the umbrella term ‘transgender’.

The bench said they are part and parcel of the society and the government must take steps to bring them in the main stream of society.

The apex court passed the order on a PIL filed by National Legal Services Authority (NALSA) urging the court to give separate identity to transgenders by recognising them as third category of gender.

Welcoming the Supreme Court decision, Lakshmi Narayan Tripathi, transgender rights activist said, “the progress of the country is dependent upon human rights of the people and we are very happy with the judgment as the Supreme court has given us those rights.”

“Distasteful”: Ministers Plan To Sidestep Human Rights Ruling

Paedophile Robert Black given a Whole Life term
Paedophile Robert Black given a Whole Life term

Murderers and those convicted of other serious offences could be given sentences lasting hundreds of years to sidestep European regulations that ban whole-life terms, it is reported – which one critic called ‘distasteful’..

Ministers are considering introducing the lengthy sentences to get around a ruling by the European Court of Human Rights (ECHR), the Daily Telegraph said.

The court last year declared that whole-life tariffs, which can be imposed by English judges, were a breach of the European Convention on Human Rights because they allowed for no “right to review”.

Allowing judges to sentence criminals for hundreds of years is one of the options the government is considering to overcome the human rights ban.

Sentences of extreme length would effectively amount to the same as a whole-life term, but would still allow for prisoners to have their sentence reviewed and potentially reduced.

A government source told the Telegraph: “The European Court of Human Rights seems to be making decisions a million miles away from what the vast majority of the public think.

“They don’t want any possibility of the most horrible of criminals walking the streets again, and this plan could be a way to make sure that doesn’t happen.”

There are 49 prisoners serving whole-life terms in England and Wales. One killer, Ian McLoughlin, who was sentenced to a minimum of 40 years for murdering a man while on day release from another murder sentence in July, avoided a whole-life term because of the ECHR ruling, the Telegraph said.

Mark Leech editor of Converse the national newspaper for prisoners said side-stepping court judgements was not the way for any government to behave.

“There is something quite distasteful about this Goverment’s constant chipping away at Human Rights legislation and court judgements – and this attempt to sidestep a court ruling is not the way for any government to behave.

“Instead of sidestepping judgements with some deft but dishonest legislative changes they should instead comply with the court’s ruling and ensure that those given whole life terms have the chance to have those terms reviewed after serving 25 years – the chances are nothing will change anyway, but at least they should be given the chance to argue their case.”

Tory Plans On Human Rights Shake Up

Plaatje-Christopher-Human-Rights

The Conservative Party will draft proposed new laws to curtail the impact of European human rights legislation on Britain in the coming year, Justice Secretary Chris Grayling has said.

Pulling out of the European Convention on Human Rights altogether is still being considered by the party, Mr Grayling added.

Other possibilities are also being reviewed as the Tory pitch for the 2015 general election is drawn up.

Speaking on the BBC Radio 4 Today programme, Mr Grayling said the final proposals would emerge shortly.

He said: “Whatever we try to do as a party – because this is not an issue that unites the Coalition… the Conservative Party’s intention is to go into the next election with a clear plan for change.

“It is absolutely clear Parliament has the sovereign right to implement that change should it choose to do so.

“We have been looking at a number of options, of which leaving the Convention is one. It’s not the only option we are considering and we will bring forward plans in the next few weeks which will set out very clearly what we will do and how we will do it.

“Later in the year we will publish a draft Bill which will set out precisely how that legal change will take place.”

Mr Grayling said the original drafting of the Convention was not a problem as it included a “sensible balance” between rights and responsibilities.

But he repeated criticisms of its interpretation and implementation – and impact on the British courts.

“There are four different principles that have to underpin what we do,” he said.

“We have to curtail the role of the court in the UK, we have to replace the Human Rights Act, which as (former Lord Chief Justice) Lord Judge rightly says is one of the key reasons why the European Court of Human Rights seems to have such sway in the UK.

“We have got to ensure there is a balance of rights and responsibilities in our laws – and that balance of rights and responsibilities does exist in the original Convention.

“And above all, we have to make our Supreme Court supreme. I do not believe decisions about the way this country is governed – we are a democracy after all – should be taken elsewhere.”