At its session on 11-12 October, the European Commission for Democracy through Law (the Venice Commission) adopted its Joint Opinion with the Council of Europe’s Directorate for Human Rights on the draft Law of Ukraine on the Public Prosecutor’s Office.

This draft Law will abolish the function of general supervision that currently allows the Public Prosecutor’s Office an extensive ability both to intrude into the functioning of the executive and to interfere with the interests and activities of private individuals and organisations. This capacity is compounded by the entitlement of the Prosecutor General and other public prosecutors to participate in the proceedings of the Ukrainian Parliament, boards of ministries, central executive agencies, local councils and other administrative bodies.[1] These powers and rights individually and cumulatively run counter to the appropriate separation of powers in a democracy, as well as posing a threat to rights and freedoms that are supposedly safeguarded by the Constitution.

Although welcoming this reform, the Joint Opinion identified five major areas of concern regarding the provisions relating to the powers of representation of the interests of the citizen and the state in non-criminal matters, the protection of the independence of public prosecutors, the appointment and dismissal of the Prosecutor General, the potential of certain provisions to restrict unjustifiably investigation and reporting by the media and the disciplinary procedures for public prosecutors. In addition to these main shortcomings, the Joint Opinion noted many important points of detail concerning individual provisions for which amendments and/or clarifications are required.

The enactment of a Law that satisfactorily addresses the points made in the Joint Opinion is one of the conditions for the conclusion of the EU-Ukraine Association Agreement at the EU’s Eastern Partnership summit in Vilnius in November.

The Joint Opinion was adopted on the basis of comments prepared by Jeremy McBride, acting as an expert for the Council of Europe, together with members of the Venice Commission and other Council of Europe experts.

Jeremy McBride is continuing to advise the Council of Europe on the steps needed to adopt a Law that meets European standards. Previously he advised the Council of Europe on the preparation of a new Code of Criminal Procedure in Ukraine to replace the one adopted during the Soviet era.

To read the Joint Opinion in full, please click here

Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in a landmark judgment by the Grand Chamber of the European Court of Human Rights in the case of Al Khawaja and Tahery v United Kingdom.

The much-anticipated ruling came in the wake of the judgment of the UK Supreme Court in R v Horncastle in late 2009 in which the Supreme Court had strongly criticised the earlier chamber judgment of the European Court in Al Khawaja. At issue was the use of hearsay evidence under the Criminal Justice Act 2003 as the “sole or decisive” basis for a person’s conviction, and whether this was compatible with the right to cross-examine witnesses as part of the right to a fair trial under Article 6(3)(d) of the European Convention on Human Rights. The UK Supreme Court complained that the European Court of Human Rights had misunderstood the safeguards in the 2003 Act that prevented unfairness to the accused. The UK government therefore sought a referral to the Grand Chamber and a hearing was held in May 2010.

In its judgment, the Grand Chamber upheld its previous rulings that a conviction based “solely or decisively” on the testimony of absent witnesses was likely to breach the right to a fair trial under article 6 unless it could be shown that “there are sufficient counterbalancing factors in place”, including “measures that permit a fair and proper assessment of the reliability of that evidence to take place”. The Grand Chamber ruled that the safeguards available in the case of one of the applicants (Al Khawaja) had been sufficient to meet fair trial concerns, but found the UK government in breach of article 6(3)(d) in relation to the second applicant, Mr Tahery.

In addition to its implications for “sole or decisive” rule under article 6, the Grand Chamber ruling has a significant public law dimension as it relates to the process of “judicial dialogue” under section 2 of the Human Rights Act between the UK Supreme Court and the European Court in cases in which the UK Supreme Court has serious concerns about the implications of a Strasbourg ruling for UK law. In a concurring opinion, the European Court’s President Sir Nicolas Bratza described the case as “a good example of the judicial dialogue between national courts and the European Court on the application of the Convention”.

The case Nada v Switzerland is to be heard in the Grand Chambers of the European Court of Human Rights, tomorrow 23 March.  The case involves a challenge to the implementation of UN sanctions on persons supposedly connected in some way to Al-Qaeda. The challenge is being made because of the passage of over seven years without providing either any specific allegations or any form of hearing in which they could be challenged, with the result that the applicant was confined to a territory of 1.7 sq km for almost six years and has suffered serious interferences with his private and family life, as well as significant damage to his reputation.

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Jeremy McBride

European Court of Human Rights holds that expulsion of foreign missionary on national security grounds is contrary to freedom of religion

The European Court of Human Rights (ECHR) held in a judgment issued today, 12 February 2009, that Russia’s expulsion of an American missionary of the Unification Church on national security grounds was incompatible with its obligation to secure religious freedom.

STRASBOURG, 12 February 2009: The ECHR, in a judgment issued this morning (Nolan and K. v. Russia, no. 2512/04), held that Russia’s expulsion in 2002 of Patrick Nolan, then a missionary with the Unification Church, violated several articles of the European Convention of Human Rights, including Article 9 (freedom of religion). The Russian authorities had maintained that Mr Nolan’s activities as a foreign missionary were a threat to national security.

Mr Nolan, who had lived in Russia for nearly eight years, was refused re-entry into Russia in 2002 following a short trip abroad, notwithstanding the fact that he possessed a valid entry visa and his 10-month-old child, of whom he was the sole custodial parent, remained on Russian soil. The expulsion followed amendments to Russia’s national security doctrine identifying foreign religious organisations and missionaries as a ‘negative influence’ threatening Russia’s ‘spiritual and moral heritage’.

In reaching its conclusion, the ECHR held that ‘Article 9 of the Convention does not allow restrictions on the ground of national security. Far from being an accidental omission, the non-inclusion of that particular ground for limitations in Article 9 reflects the primordial importance of religious pluralism as “one of the foundations of a ‘democratic society’ within the meaning of the Convention” … It follows that the interests of national security could not serve as a justification for the measures taken by the Russian authorities’.

Furthermore, the Court held that Russia was in breach of Article 38 of the Convention (obligation to furnish necessary facilities for the examination of the case) as a result of its refusal to disclose a report prepared by the Federal Security Service that had served as the basis for Mr. Nolan’s expulsion.

The Court also held that the Russia was in breach of Article 8 (right to respect for family life) due to the resulting 10-month separation of Mr Nolan from his infant son, Article 5 (right to liberty) due to the overnight detention of Mr Nolan in the airport without lawful grounds after his attempted re-entry to Russia and Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) due to the fact that Mr Nolan had been expelled before he had the opportunity to seek a review of his case.

Drew Holiner, a member of the Russian Bar, represented the applicants.

For the ECHR judgement, please click here.

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Drew Holiner

The European Court of Human Rights (ECHR) held in a judgment issued today, 22nd December 2008, that the continued detention of Vasily Aleksanyan by the Russian authorities is ‘unacceptable’.

STRASBOURG, 22nd December 2008: The ECHR, in a judgment issued this morning, ordered the release of Mr Vasily Aleksanyan, a 37 year old lawyer who has been held in detention by the Russian authorities since April 6th 2006 (991 days). Mr Aleksanyan suffers from AIDS and a number of concomitant diseases, including AIDS – related lymphatic cancer, and is nearly blind.

Following Mr Aleksanyan’s detention and the diagnosis of HIV in 2006, his health declined rapidly. On 26 November 2007, Mr Aleksanyan lodged a request for urgent intervention by the ECHR on the basis that he was not receiving treatment appropriate to his condition and necessary to preserve his life. In response, on several occasions in November and December 2007 the ECHR issued interim measures, (injunctions) requiring the Russian authorities to transfer Mr Aleksanyan to a hospital specialized in the treatment of AIDS and concomitant diseases. The Russian authorities refused to transfer Mr Aleksanyan for treatment for over two months.

Today the ECHR, finding violations of several articles of the European Convention on Human Rights, held that the Russian authorities’ failure to provide timely treatment to Mr. Aleksanyan ‘undermined [his] dignity and entailed particularly acute hardship… which amounted to inhuman and degrading treatment’. The ECHR also noted that ‘[it] is clear… that for over two months the Government continuously refused to implement the interim measure, thus putting the applicant’s health and even life in danger’.

Finally, the ECHR found that ‘in view of the gravity of the applicant’s illnesses, [his] continued detention is unacceptable’ and ‘has lost any meaningful purpose… further maintaining of [detention] is incompatible with Article 5 of the Convention’ (right to liberty and security of person).

Drew Holiner, who is also a member of the Russian Bar, represented the applicant.

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Drew Holiner

5 March 2008 – Lord Chief Justice rules that Article 8 ECHR rights to private life and correspondence must be respected in mutual assistance proceedings concerning business transactions

On 4 & 5 March 2008, the Divisional Court (Lord Phillips of Worth Matravers LCJ presiding) heard the judicial review in Hafner and anor v. City of Westminster Magistrates’ Court. The case concerned a Swiss lawyer’s challenge to the magistrates’ court’s decision to obtain evidence under compulsion in London for forwarding to the Australian Securities and Investment Commission. The claimants asserted that the evidence concerning business matters referred to them, but the magistrates’ court refused to allow them to review the material to ensure that privileged or commercially sensitive material would not be unnecessarily disclosed, and concluded that the claimants’ privacy rights under Article 8 European Convention on Human Rights (ECHR) were not engaged.

Giving judgment the Lord Chief Justice held that the courts, when considering requests to obtain evidence in mutual assistance proceedings, must consider the privacy rights of third parties under Article 8 ECHR. In particular, where a request for mutual assistance sought the production of evidence of business matters potentially covered by privilege, obtained in confidence or otherwise subject to privacy concerns, the courts should consider whether to give notice of the proceedings to third parties affected by the evidence. The courts should also consider allowing such parties to have prior access to the evidence, if necessary upon giving an undertaking of non-disclosure and under the supervision of the court, for the purpose of making written and/or oral submissions in respect of their confidentiality interests.

The Lord Chief Justice quashed the magistrates’ court’s decision and issued detailed guidance on the procedure to be used to ensure respect for Article 8 rights in mutual assistance proceedings.

Piers Gardner and Ian Rodgers appeared on behalf of the claimants, instructed by Kingsley Napley.

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Ian Rogers
Piers Gardner

Two Kurdish groups, the PKK and Kongra-Gel will today attempt to persuade the CFI in Luxembourg to annul decisions by the EU Council (made in 2002 and 2004 respectively) to place them on a list of terrorist organisations.

The case (T-229/02) follows the PKK’s successful 2007 appeal to the ECJ to allow its case (brought by Osman Ocalan on its behalf) to proceed. The two groups will argue that the Council failed to give reasons and also that they were on ceasefire at the time the decisions were taken. The Applicants claim that they were and remain entitled to have these decisions expunged from the Community legal order. They are also seeking their costs.

Philip Moser represents the Applicant Mr Ocalan in the ECJ and the CFI.

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Philip Moser QC

On 26 March 2007 the Georgian Government lodged an inter-State case with the European Court of Human Rights (ECHR) against the Russian Federation.  The Monckton Chambers team was chosen to represent Georgia because of their ability to offer the expertise needed in this international case.

The case is the first inter-State case brought using the special procedure of Article 33 of the Convention (ie one brought by one Member State of the Council of Europe against another) since the ECHR became a full time institution in 1998 and only the fourth such case ever to be brought before the Court.

Georgia is represented before the ECHR by its Agent.  Piers Gardner and Jeremy McBride of Monckton Chambers have been instructed by the Georgian Ministry of Justice to act in relation to the case.

The case concerns the arrest, detention and collective expulsion of thousands of Georgians from Russia since September 2006 and the Russian imposition of an economic embargo on Georgia, by closing the border, forbidding maritime and air movements and cancelling all postal communications.  It asserts that Russia has established an administrative practice causing systemic breaches of the European Convention on Human Rights, including the:

• Right to liberty and security of person (Article 5)
• Prohibition of inhuman and degrading treatment, involving the conditions in detention and deaths in detention of deportees (Article 3)
• Collective expulsion of aliens (article 4 of Protocol 4 and Article 1 of Protocol 7)
• Rights to respect for home, family life and correspondence (Article 8), the peaceful enjoyment of possessions (Article 1 of Protocol No 1), the right to education (Article 2 of Protocol No 1)
• Prohibition on discrimination(Article 14), as well as
• Ineffectiveness of national remedies for those affected (Article 13) and the implementation of measures for an impermissible purpose (Article 18)

Our team combines enormous experience in advising and bringing proceedings in commercial and property-related human rights cases.  Their expertise includes both advising on the UK’s Human Rights Act and ECHR and appearing in the European Court of Human Rights. Unusually they have handled European human rights cases concerning not only the UK, but many other European countries, including Spain.  They are also regularly involved in advising and bringing proceedings under other human rights instruments such as the United Nations’ International Covenant on Civil and Political Rights as well as EU law.