2012

(no. 9644/09) – 9644/09) – (no. v. Cyprus Cyprus v. VOLUME 1 / ISSUE 1 / 1 / ISSUE VOLUME (no. 55721/07) – Grand Chamber Chamber 55721/07) – Grand (no. (no. 2) (no. 21 June 2011 Protected by the European Convention on on Convention the European Protected by Human Rights the United Al-Skeini and Others v. Kingdom of 7 July 2011 Judgment Switzerland v. Neulinger and Shuruk Chamber Judgment 41615/07) – Grand (no. of 6 July 201 Kafkaris LOUKIS G. LOUCAIDES G. LOUKIS RIETIKER DANIEL CHRISTODOULIDOU THEODORA

Notes and Analysis Case 79 as Thought of Right to Freedom The 88 BAKIRCI NATASHA 98 111 THEODORA A. CHRISTOU A. THEODORA Foreign Judicial Decisions Judicial Decisions Foreign Case-Law in the of the European Charge Court of Human Rights of the Republic of Rights in the Context Cyprus IN THIS ISSUE THIS IN Note Editorial Articles 4 SPIELMANN of and Enforcement Recognition DEAN BIANKU 25 LEDI Bells the Alarm Ring? Whom For 42 of Free Assistance Right to Legal The VOYATZIS PANAYOTIS 57 and Human Warrant Arrest European The Law Review Law Cyprus Human Rights

(2012) (1) CHRLR Cyprus Human Rights Law Review www.intersentia.com ISSN 2034–8770 ISSN www.intersentia.com CYPRUS HUMAN RIGHTS LAW REVIEW

Published twice a year in co-operation with the European Human Rights Law Institute. ISSN 2034–8770 volume 1 / issue 1/ 2012

Editor-in-Chief Leto Cariolou, Director, European Human Rights Law Institute ([email protected])

Editorial Board – Dr Th eodora Christodoulidou, Counsel, Human Rights Sector, Legal Service of the Republic of Cyprus – Christina Karakosta, Adviser to the European Ombudsman – Dr Panayotis Voyatzis, Lawyer, European Court of Human Rights Scientifi c Board

Scientifi c Board – Nicholas Alivizatos, Professor of Constitutional Law, Faculty of Law, University of Athens – George Arestis, Judge, Court of Justice of the European Union – Antônio Augusto Cançado Trindade, Judge, International Court of Justice – Hugh Collins, Professor of English Law, London School of Economics – Dr Constantinos Kombos, Lecturer in Law, School of Law, University of Cyprus – Dr Stuart Lakin, Lecturer, School of Law, University of Reading – Dr George Letsas, Reader in Philosophy of Law and Human Rights, University College London – Dr Virginia Mantouvalou, Lecturer in Law, University College London – Dr Saladin Meckled-Garcia, Lecturer in Human Rights and Political Th eory, University College London – George Nicolaou, Judge, European Court of Human Rights – Colm O’Cinneide, Reader in Law, University College London – Christos Rozakis, Former Vice-President, European Court of Human Rights – Dean Spielmann, Judge, European Court of Human Rights – Dr Stephanos Stavros, Executive Secretary to the European Commission against Racism and Intolerance – S. Tsakyrakis, Associate Professor of Public Law, Faculty of Law, University of Athens

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© 2012 Inters entia All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publishers. ISSN 2034-8770 CONTENTS

EDITORIAL NOTE 2

ARTICLES

Recognition and Enforcement of Foreign Judicial Decisions Dean Spielmann 4

For Whom the Alarm Bells Ring? Ledi Bianku 25

Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights Panayotis Voyatzis 42

Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus Theodora A. Christou 57

CASE NOTES AND ANALYSIS

Th e Right to Freedom of Th ought as Protected by the European Convention on Human Rights Loukis G. Loucaides 79

Al-Skeini and Others v. the United Kingdom (no. 55721/07) – Grand Chamber Judgment of 7 July 2011 Natasha Bakirci 88

Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010 Daniel Rietiker 98

Kafk aris (no. 2) v. Cyprus (no. 9644/09) – 21 June 2011 Theodora Christodoulidou 111

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 1 EDITORIAL NOTE

Th ese are turbulent times for the protection of human rights in Europe. Leaving aside challenges created by governmental authorities and their respective acts or omissions, the overwhelming amount of cases pending at the dock of the European Court of Human Rights (ECtHR), and the European Union’s (“EU”) anticipated accession to the European Convention on Human Rights (the “Convention”), in eff ect the relationship between the European Courts, the ECtHR and the Court of Justice of the EU, and national jurisdictions is facing unprecedented challenges. In this context, the Cypriot legal order forms no exception.

Th e latter is founded on the Constitution of the Republic of Cyprus which entered into force on 16 August 1960 when the Republic became an independent State.1 In a separate second part it contains a constitutional Charter of human rights modelled on the Convention. It also provides for the principle of judicial review of acts of the executive, legislative and administrative authorities on the basis of their constitutionality.2

Th e Convention was signed by the Government of Cyprus in December 1961 and ratifi ed by Law No. 39/1962 which entered into force on 30 March 1962. Th e Cypriot government has subsequently ratifi ed all Additional Protocols to the Convention. As noted by the Grand Chamber of the ECtHR “(t)he Convention forms an integral part of the Cypriot legal system, where it takes precedence over any contrary provision of national law … (and is therefore) directly applicable within the Cypriot legal system.”3

Th e constitutional protection of Human Rights and the protection guaranteed by the Convention are, in principle, coincidental. Th e ECtHR judgments are a source of guidance in the interpretation and application of both the relevant provisions of the Constitution and the Convention. Th e protection of Human Rights by the Constitution is wider than that of the Convention in at least three respects: fi rst, the scope of rights guaranteed by the Constitution is wider than that of the Convention, second, the possible limitations of rights under the Cypriot Constitution are narrower, and third the Cypriot Constitution contains social and economic rights such as the right to work and the right to strike. Th ese are all matters to be explored in the Review’s forthcoming volumes.

1 Before independence, the common law as developed in the British legal order applied in Cyprus. 2 Th e Supreme Court is vested by the Constitution with the competence to review the constitutionality and lawfulness of legislation and executive and administrative decisions or omission. See Article 146 of the Constitution. 3 Azinas v. Cyprus, no. 56679/00, Grand Chamber judgment of 28 April 2004, para. 39.

2 Intersentia Editorial Note

On 1 May 2004 Cyprus joined the EU completing thus the Republic’s long eff orts to join formally the European family. Th roughout the accession process, the Cypriot legal order underwent extensive changes in the process of implementing the European Aquis Communautaire. At present, it is trying to fi nd its way in a challenging and fast- growing multijurisdictional environment that enriches its traditional common law character. It also holds the Presidency of the EU Council until the end of December 2012.

In light of the challenges lying ahead and the complicated matrix of European and constitutional norms that Cypriot practitioners, among others, are called to apply, the Editorial Board found it necessary to establish a new journal. Published under the auspices of the recently created European Human Rights Law Institute, the Cyprus Human Rights Law Review, intends to promote knowledge, appreciation and constructive discussion on matters of human rights law and policy particularly those aff ecting the Cypriot legal order and seeks to explore the interactions between the diff erent levels of protection of human rights in Europe: national, supranational and international.

Th e Review will be publishing articles that consider human rights from an international to a domestic context, book reviews, and case-notes on relevant jurisprudence of the Strasbourg and Luxembourg Courts as well as the Cypriot courts and other domestic authorities.

Th e First Volume is introduced by the study of Judge Dean Spielmann on the infl uence of the Convention on the recognition and execution of foreign judgments. It continues with a presentation by Judge Ledi Bianku of recent developments and challenges facing the protection of the rights of asylum seekers in Europe. Panayotis Voyatzis presents the ECtHR’s jurisprudence on the right to legal assistance free of charge. Th eodora Christou analyses the procedures related to the European Arrest Warrant as applied in Cyprus. In a series of shorter articles and case notes, fi rst, Loukis Loucaides sets out his thoughts on the right to freedom of thought, Natasha Bakirci analyses the Grand-Chamber Judgment of Al-Skeini and others v. the United Kingdom, Daniel Rietiker the Grand-Chamber Judgment in Neulinger and Shuruk v. Switzerland, and Th eodora Christodoulidou the Chamber decision in the case of Kafk aris (no. 2) v. Cyprus.

Th e editorial board would like to thank the members of the academic world, as well as the international and domestic judiciary, who spontaneously accepted to support the new publication through their advice and active participation. Th e editors are also grateful to the prestigious publishing house Intersentia and, especially, Tom Scheirs for their continuing assistance and support.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 3 ARTICLES

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDICIAL DECISIONS Requirements Under the European Convention on Human Rights. An Overview*

Dean Spielmann**

INTRODUCTION

Th e recognition and enforcement of judicial decisions given in a foreign country certainly raises a number of issues in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).1 First of all, the recognition or implementation of foreign judicial decisions or, on the contrary, refusal to recognise and enforce them, may in some cases run counter to the requirements of a fair trial. Moreover, the involvement of the authorities in the forum State, in the event of acceptance or, by contrast, refusal to recognise and enforce the decision, may prove problematic in terms of the other substantive rights guaranteed by the Convention. In the present article the author will endeavour to present an overview of the relevant case-law of the European Court of Human Rights (“the Court”). As regards situations where the enforcement of foreign decisions is prohibited, the case-law is well established (I). However, it remains rather embryonic as to situations where there is an obligation to enforce such decisions (II).

* Th e opinions expressed in this article are personal to the author. He is grateful to Maître Patrick Kinsch, lawyer and visiting professor at the University of Luxembourg, for his valuable comments. He would also like to thank James Brannan for his translation. Th e original French version of this article was originally draft ed as a contribution to the forthcoming work Mélanges off erts à Paul Tavernier and has already been published in Revue trimestrielle des droits de l’homme. ** Vice-President of the European Court of Human Rights. 1 Th is question has been examined in legal literature. See, in particular, P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, Academy of International Law, Collected Courses, vol. 318 (2005); F. Marchadier, Les objectifs généraux du droit international privé à l’épreuve de la Convention européenne des droits de l’homme, Brussels, Bruylant, 2007; A. Bucher, “La dimension sociale du droit international privé”, Academy of International Law, Collected Courses, vol. 341 (2009).

4 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

I. WELL-ESTABLISHED CASE-LAW CONCERNING PROHIBITION OF ENFORCEMENT

Th e enforcement of judicial decisions is scrutinised by the Court in the light of the rights guaranteed by the Convention. Th us, enforcement may be contrary to the requirements of a fair trial (1). One may add that the process of enforcement, considered separately, must in itself be compliant with the guarantees of a fair trial and such enforcement must not entail any infringement of the other rights and freedoms protected by the Convention (2).

A. ENFORCEMENT IN BREACH OF FAIR-TRIAL GUARANTEES

Th e compatibility with the Convention of the enforcement of a decision given in a third State was examined by the Court back in 1992. In the founding precedent, Drozd and Janousek v. France and Spain2, the Court was able to make use of the “fl agrant denial of justice” test from its extradition case-law.3 In that case, the Court was called upon to examine the consequences of criminal proceedings before the Tribunal de Corts in the Principality of Andorra and in particular the applicants’ detention in France aft er their conviction. Examining the case under Article 5 of the Convention, the Court found that there had been no violation of that provision, in the following terms:

“in this case the Tribunal de Corts, which pronounced the conviction of Mr Drozd and Mr Janousek, is the ‘competent court’ referred to in Article 5 §1 (a). As the Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international co-operation in the administration of justice, a trend which is in principle in the interests of the persons concerned. Th e Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a fl agrant denial of justice (see, mutatis mutandis, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 45, §113)…”.4

2 Drozd and Janousek v. France and Spain, 26 June 1992, Series A no. 240. 3 Soering v. the United Kingdom, 7 July 1989, Series A no. 161. 4 §110. Emphasis added. In the same paragraph “Th e Court takes note of the declaration made by the French Government to the eff ect that they could and in fact would refuse their customary co- operation if it was a question of enforcing an Andorran judgment which was manifestly contrary to the provisions of Article 6 or the principles embodied therein. It fi nds confi rmation of this assurance in the decisions of some French courts: certain indictments divisions refuse to allow extradition of a person who has been convicted in his absence in a country where it is not possible for him to be retried on surrendering to justice (see, for example, the decision of the Limoges Court

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 5 Dean Spielmann

Th e Court did not fi nd it established that, in the circumstances of the case, France had a duty to refuse its co-operation in the enforcement of the sentences in question.5 As regards the indirect eff ect of certain provisions of the Convention, Judge Matscher, in his concurring opinion, looked at the matter in terms of the right to a fair trial, emphasising the reduced eff ect of Article 6 and the requirement of a “fl agrant violation” of that provision before the executing State’s responsibility could be engaged:

“… a contracting State may incur responsibility by reason of assisting in the enforcement of a foreign judgment, originating from a contracting or a non-contracting State, which has been obtained in conditions which constitute a breach of Article 6, whether it is a civil or criminal judgment, and in the latter case whether it imposes a fi ne or a sentence of imprisonment. Th is must clearly be a fl agrant breach of Article 6 or, to put it diff erently, Article 6 has in its indirect applicability only a reduced eff ect, less than that which it would have if directly applicable (the theory of the ‘reduced eff ect’ of ordre public with reference to the recognition of foreign judgments or other public acts is well known to international law). Th ere is no need here to develop general rules on the extent of the indirect eff ect of Article 6; in any event, in establishing the factors to be taken into consideration, the seriousness of the conviction and sentence pronounced abroad also plays a part. To see whether the enforcement of a foreign judgment will clash with this indirect eff ect of Article 6, the requested State must, to be sure, carry out a review of some kind. Such a review is provided for in all legislative systems, the thoroughness of the review and the conditions of its exercise being left to the legislation of the requested State; it merely has to comply with the requirements of the Convention.”

Th is requirement that there must be a denial of justice of a fl agrant nature did not, however, meet with unanimous agreement. Other judges, dissenting, relied in particular on the Explanatory Report on the European Convention on the International Validity of Criminal Judgments, emphasising that the requirements of Article 6 of the Convention went beyond the principle that there can be no manifest denial of justice.6 Th is quite diff erent approach was then refl ected in legal writings that found an echo in the Court’s subsequent case-law, which, at least as far as the enforcement of foreign decisions is concerned, seemed to abandon the test applied in Drozd and Janousek. As Patrick Kinsch explained, in his course at the Hague

of Appeal, 15 May 1979, cited in the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 10, para. 18), and the Conseil d’État has declared the extradition of persons liable to the death penalty on the territory of the requesting State to be incompatible with French public policy (see, for instance, the Fidan judgment of 27 February 1987, with submissions by Government Commissioner Jean-Claude Bonichot, Recueil Dalloz Sirey 1987, jurisprudence, pp. 305–310, and the Gacem judgment of 14 December 1987, Recueil Lebon 1987, tables, p. 733).” 5 Ibid. 6 Joint dissenting opinion of Judges Pettiti, Valticos and Lopes Rocha, approved by Judges Walsh and Spielmann.

6 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

Academy of International Law7, there is a choice here between two fundamental options:

“La première consisterait à confronter la procédure étrangère à toutes les garanties qui s’appliquent aux procédures administrées directement dans l’Etat de la reconnaissance lui-même; du point de vue de cet Etat, ce standard est le standard optimal qui tient au parfait respect des normes qui y sont en vigueur, un peu comme si elles étaient également en vigueur dans l’Etat d’origine du jugement et comme si le juge de la reconnaissance était chargé d’en contrôler l’observation dans l’Etat d’origine. (…) Il y a une deuxième possibilité. Celle-ci consiste à s’abstenir de vérifi er le parfait respect, à l’étranger, des garanties qui sont en vigueur dans l’Etat du for, et de se concentrer sur le respect des garanties essentielles du procès équitable. C’est là le standard minimal qui peut lui aussi être adopté”.8

In its Pellegrini v. Italy9 judgment, the Court, at least at fi rst sight, opted for the optimal standard. Setting aside the “fl agrant denial of justice” test, the Court found that there had been a violation of Article 6 §1 of the Convention as the Italian courts had breached their duty of satisfying themselves, before authorising enforcement of the Roman Rota’s judgment, that the applicant had had a fair hearing in proceedings under canon law that had led to the applicant’s marriage being annulled. Under Article 6 of the Convention, the Court imposed on the respondent State a procedural obligation “in the second degree”, namely to examine whether the proceedings before the ecclesiastical courts had met the requirements of that provision. It observed as follows:

“Th e Court notes at the outset that the applicant’s marriage was annulled by a decision of the Vatican courts which was declared enforceable by the Italian courts. Th e Vatican has not ratifi ed the Convention and, furthermore, the application was lodged against Italy. Th e Court’s task therefore consists not in examining whether the proceedings before the ecclesiastical courts complied with Article 6 of the Convention, but whether the Italian courts, before authorising enforcement of the decision annulling the marriage, duly satisfi ed themselves that the relevant proceedings fulfi lled the guarantees of Article 6. A review of that kind is required where a decision in respect of which enforcement is requested emanates from the courts of a country which does not apply the Convention. Such a review is especially necessary where the implications of a declaration of enforceability are of capital importance for the parties.”10

7 P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, Academy of International Law, Collected Courses, vol. 318 (2005). 8 P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 292, no. 227. 9 Pellegrini v. Italy, no. 30882/96, ECHR 2001-VIII. 10 §40.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 7 Dean Spielmann

Th e Court then examined the reasons given by the Florence Court of Appeal and the Court of Cassation for dismissing the applicant’s complaints about the proceedings before the ecclesiastical courts.11 It found that the Italian courts did not appear to have attached any importance to the fact that the applicant had not had the possibility of examining the evidence produced by her ex-husband and by the “so- called witnesses”, whereas the right to adversarial proceedings meant that each party to a trial, be it criminal or civil, must in principle be given the opportunity to have knowledge of and comment on all evidence adduced or observations fi led with a view to infl uencing the court’s decision.12 Th e Court rejected the Government’s argument that this opportunity was called into question by the circumstance that, as the nullity of the marriage derived from an objective and undisputed fact, the applicant would not, in any event, have been able to challenge it: it was for the parties to a dispute alone to decide whether a document produced by the other party or by witnesses called for their comments.13 Furthermore, the Court took the view that the applicant should have been put in a position to secure the assistance of a lawyer if she had so wished. Th e ecclesiastical courts could have presumed that the applicant, who was not assisted by a lawyer, was unaware of the case-law on legal assistance in canon-law proceedings: given that she had been summoned to appear before the Ecclesiastical Court without knowing what the case was about, that court had a duty to inform her that she could seek the assistance of a lawyer before she attended for questioning.14 In those circumstances the Court found:

“that the Italian courts [had] breached their duty of satisfying themselves, before authorising enforcement of the Roman Rota’s judgment, that the applicant had had a fair trial in the proceedings under canon law”.15

Th e signifi cance of the Pellegrini judgment is unclear. Two questions arise at the same time and the Court does not clearly distinguish between them: fi rst, what the choice of applicable standard (minimal review or optimal review) should be, and second, how the question of the State of origin should be taken into account. Jean-François Flauss takes the view that such a review would have to be carried out on the basis of a uniform reference standard where the foreign decision to be enforced emanates from courts in a State which does not apply the Convention.16 In more general terms,

11 §§42–43. 12 §44. 13 §45. 14 §46. 15 §47. 16 J.-F. Flauss, “Chronique: CEDH et droit du contentieux”, A.J.D.A., 2001, p. 1063; for an enumeration of other relevant writings, see P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 305, no. 241, note 823.

8 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

Jean-Paul Costa emphasises the signifi cance and broad scope of the judgment.17 He comments that there is no longer any mention of a “fl agrant denial of justice”18 and that the judgment does not seem to allow for any exceptions, but is draft ed in general terms, laying down a categorical imperative.19 He adds that the Strasbourg court almost seems to be assuming a “fi ft h instance” role here, in substituting its own assessment for that of the Italian courts, having found theirs to be defi cient.20 It is submitted by this author that Pellegrini quite simply leaves open the question whether the review should extend to decisions emanating from courts in States that have ratifi ed the Convention. Admittedly, as Patrick Kinsch notes, the obligation to carry out such a review, according to the actual fi ndings in Pellegrini, applies only to the enforcement of a decision by a court of a third State.21 For J.J. Fawcett, it is unclear whether the Pellegrini principle applies in the event that the decision to be enforced emanates from a court of a High Contracting Party.22 Review in such cases is certainly optional; it would perhaps be unwise to conclude that it is obligatory. As regards, more specifi cally, the question of the applicable standard, can it really be maintained that the “eccentric Pellegrini judgment”23 fundamentally called into question the test identifi ed in Drozd and Janousek? One may be led to believe so, especially as the violation found in Pellegrini did not really correspond to a “fl agrant denial of justice”, unless any breach of the right to a fair trial were quite simply to be equated with such a denial.24

17 J.-P. Costa, “Le tribunal de la Rote et l’article 6 de la Convention européenne des droits de l’homme”, Revue trimestrielle des droits de l’homme, 2002, pp. 470 et seq. 18 “On ne parle plus, … de déni de justice fl agrant”; ibid, p. 472. 19 “l’arrêt ne semble pas souff rir d’exceptions; il est rédigé en termes généraux; il pose un impératif catégorique”; ibid, p. 474. 20 “La Cour de Strasbourg ne se comporte pas comme une juridiction de cinquième instance, mais on n’en est pas loin: elle substitue en eff et son appréciation à celle, jugée par elle défaillante, des tribunaux italiens”; ibid. 21 P. Kinsch, “Th e Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments – A Survey of the Cases Decided by the European Human Rights Institutions”, in T. Einhorn and K Siehr (eds.), Intercontinental Cooperation Th rough Private International Law, Essays in Memory of Peter E. Nygh, Th e Hague, T.M.C. Asser Press, 2004, p. 228, note 100; he observes that legal scholars remain divided over this question. 22 “It is unclear whether Pellegrini applies where the judgment was granted in a ECHR State (which would include all the EC Member States), it is at least arguable that is does so” (J.J. Fawcett, “Article 6 (1) of the ECHR and Private International Law”, International and Comparative Law Quarterly, 2007, p. 5). 23 To use the words of P. Kinsch in “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 305. 24 For A. Bucher (“La dimension sociale du droit international privé”, op. cit., p. 305, no. 185, note 556), “[les arrêts Drodz et Pellegrini] doivent donc être lus conjointement, comme la Cour les cite d’ailleurs, en ce sens que la violation de la garantie du procès équitable correspond à un “déni de justice fl agrant””. Th e author refers to the decisions in Eskenasi and Chelouche (Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005-XIII (extracts)) and in Lindberg (Lindberg v. Sweden (dec.), no. 48198/99, 15 January 2004). Th e Lindberg decision indeed states that the

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 9 Dean Spielmann

Th e subsequent case-law seems to have distanced itself from that test, without however abandoning it altogether.25 In its admissibility decision in the case of Saccoccia v. Austria (5 July 2007)26, the Court, in the context of the forfeiture of the applicant’s assets as ordered by a court in the United States, observed as follows:

“its task does not consist in examining whether the proceedings before the United States courts complied with Article 6 of the Convention, but whether the Austrian courts, before authorising the enforcement of the forfeiture order, duly satisfi ed themselves that the decision at issue was not the result of a fl agrant denial of justice. A review of this kind is required where a decision in respect of which enforcement is requested emanates from the courts of a country which does not apply the Convention (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 34, §110, concerning the enforcement in France of a prison sentence given by a court of Andorra which was not a Member State of the Convention at the material time). Th e Court’s subsequent case- law indicates that, before granting the execution of a decision emanating from the courts of a country not applying the Convention, the courts may even be required to examine whether the relevant proceedings fulfi lled all the guarantees of Article 6 (see Pellegrini v. Italy, no. 30882/96, §§40 and 47, ECHR 2001-VIII, relating to the granting of exequatur for a decision given by the ecclesiastical courts declaring a marriage null and void).”

In examining that case, the Court was perfectly aware of the debate in literature arising from the comparison between Drodz and Pellegrini, as shown by its description of the latter judgment as “subsequent case-law”. In any event, no violation of Article 6 was found, as the Austrian courts had “duly satisfi ed themselves, before authorising enforcement of the forfeiture order, that the applicant had had a fair trial under United States law”. In sum, compliance with the guarantees of Article 6 of the Convention imposes an obligation of verifi cation on the enforcing State, at least when the decision to be enforced emanates from a jurisdiction that is not a party to the Convention.27 In the event of a fl agrant breach of fair-trial guarantees, the Court fi nds a violation of Article 6 of the Convention. Th e same is true where the State party to the Convention has not duly verifi ed, before authorising the enforcement of the foreign decision, that the decision is the result of a fair trial. Th ere is therefore a procedural obligation, which, for the time being, appears rather weak. But it only appears so, because the

Pellegrini judgment was based on the notion of a “fl agrant denial of justice” even though it was not specifi cally identifi ed as such. See below. 25 On this question see P. Kinsch, “Le droit international privé au risque de la hiérarchie des normes: l’exemple de la jurisprudence de la Cour européenne des droits de l’homme en matière de reconnaissance des jugements”, Annuaire de droit européen, 2007, pp. 958 et seq. 26 Saccoccia v. Austria (dec.), no. 69917/01, ECHR 2007-VIII (extracts). 27 Concerning the execution of a European Arrest Warrant, the Court showed that it was not prepared to readily accept that the “fl agrant denial of justice” condition was fulfi lled, the decision to be enforced emanating from a High Contracting Party; see Stapleton v. Ireland (dec.), no. 56588/07, §§25–26, 4 May 2010.

10 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

Court – as the Pellegrini judgment has shown – is prepared to extend its review as far as substituting its own assessment for that, which it found defi cient, of domestic courts.28 Taking the case-law as it currently stands, it remains uncertain, however, whether the Court would fi nd a violation of Article 6 if the decision to be enforced had a defect that did not satisfy the “fl agrant denial of justice” test. Th e Court’s Grand Chamber may one day have occasion to address this question.29

B. AUTONOMOUS CONSIDERATION OF ENFORCEMENT PROCEDURE AND RESPECT FOR SUBSTANTIVE GUARANTEES

Th e enforcement of foreign decisions raises another question, that of the enforcement procedure itself. It is in the light of the guarantees of Articles 6 and 13, or even those of other articles of the Convention, that the relevant analysis should be made.30 In the Saccoccia v. Austria judgment of 18 December 200831, concerning the forfeiture of the applicant’s assets in accordance with the decision of a US court, the Court confi rmed its admissibility decision of 5 July 200732, declaring Article 6 applicable given that the case involved a dispute between the applicant and the Austrian authorities as to whether the conditions for the enforcement of the fi nal forfeiture order of the US courts were satisfi ed. For the Court, the answer to that question was decisive in order to determine whether or not the applicant could exercise his rights in relation to the assets in question. It was precisely as a result of the decisions of the Austrian courts that the forfeiture order became eff ective and the applicant was fi nally deprived of his assets.33 In its judgment of 18 December 200834 the Court developed its reasoning by confi rming the applicability of Article 6 of the Convention to the actual enforcement of foreign decisions.35 Such proceedings

28 J.P. Costa, op. cit., p. 474. 29 As J.-P. Costa notes (op. cit., p. 470), the Chamber had decided to relinquish the Pellegrini case to the Grand Chamber (Art. 30 of the Convention) (§6 of the judgment). Th e applicant had opposed relinquishment (§7 of the judgment). Neither of the parties requested referral to the Grand Chamber (Art. 43 of the Convention). 30 P. Kinsch (“Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 95, no. 63, note 209), cites the Court’s decision in Ern Makina Sanayi ve Ticaret A.Ş. v. Turkey ((dec.), no. 70830/01, 4 October 2005) concerning, in relation to the enforcement of a Russian arbitral award in Turkey, a failure to serve a notice on the defendant in the enforcement proceedings. In a judgment of 3 May 2007 the Court found a violation of Article 6 of the Convention (Ern Makina Sanayi ve Ticaret A.Ş. v. Turkey, no. 70830/01, 3 May 2007). 31 Saccoccia v. Austria, no. 69917/01, 18 December 2008. 32 Saccoccia v. Austria (dec.), no. 69917/01, ECHR 2007-VIII (extracts). 33 Saccoccia v. Austria (dec.), no. 69917/01, ECHR 2007-VIII (extracts). 34 Saccoccia v. Austria, no. 69917/01, 18 December 2008. 35 Th e Court found as follows: “60. As far as civil proceedings before domestic courts are concerned, the applicability of Article 6 extends to the execution phase of the proceedings, the reason being that the ‘right to a court’ embodied in Article 6 would be illusory if a Contracting State’s domestic legal system allowed a

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 11 Dean Spielmann

(referred to in some jurisdictions as “exequatur proceedings”) are thus themselves subject to fair-trial guarantees. In Saccoccia the Court did not, however, fi nd a violation of Article 6 of the Convention. In the same judgment the Court further examined whether the enforcement of the US decision breached the right to respect for the enjoyment of possessions guaranteed by Article 1 of Protocol No. 1.36 It found that there had been no such violation, noting that the execution of the forfeiture order had a legal basis in Austria37 and had the legitimate aim of enhancing international co-operation to ensure that assets derived from drug dealing were actually forfeited.38 In addition, the applicant had been represented by a lawyer throughout the proceedings in Austria and had had the opportunity, of which he had made ample use, to submit his arguments.39 Th e Court thus held that the execution of the forfeiture order had not amounted to a disproportionate interference with the applicant’s property rights and found that there had been no violation of Article 1 of Protocol No. 1.40 Th e case of Lindberg v. Sweden concerned the enforcement in Sweden of a decision emanating from a Norwegian court ordering the applicant to pay damages in defamation proceedings that the Court had previously examined in its Bladet Tromsø v. Norway judgment.41 Before the Court, the applicant complained, relying on Article 13 taken together with Article 10, that the Swedish Supreme Court had failed to verify whether the Norwegian decision was compatible with Article 10 of the Convention. In its decision of 15 January 200442, the Court fi rst refused to assess the existence of an arguable claim under Article 10 of the Convention on the ground

fi nal, binding judicial decision to remain inoperative to the detriment of one party (see Hornsby v. Greece, 19 March 1997, §40, Reports of Judgments and Decisions 1997-II). 61. Th e Court has, again with regard to domestic proceedings, also found Article 6 to apply in respect of execution proceedings on the ground that it is the moment when the right asserted actually becomes eff ective which constitutes the determination of a civil right (see, in particular, Pérez de Rada Cavanilles v. Spain, 28 October 1998, §39, Reports 1998-VIII, relating to the execution of a settlement agreement, and Estima Jorge v. Portugal, 21 April 1998, §37, Reports 1998-II, relating to the enforcement of a notarial deed). 62. Th e Court sees no need to come to a diff erent conclusion for exequatur proceedings, that is, proceedings relating to the execution of a foreign court’s decision, provided that the decision in question concerned a civil right or obligation (see Sylvester v. Austria (dec.), no. 54640/00, 9 October 2003, and McDonald v. France (dec.), no. 18648/04, 29 April 2008, both relating to exequatur proceedings for a foreign divorce decree). 63. However, as the Government rightly pointed out, in exequatur proceedings the domestic courts are not called upon to decide anew on the merits of the foreign court’s decision. All they have to do is to examine whether the conditions for granting execution have been met.” 36 §§85–92. 37 §87. 38 §88. 39 §90. 40 §91. 41 Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999-III. 42 Lindberg v. Sweden (dec.), no. 48198/99, 15 January 2004.

12 Intersentia Recognition and Enforcement of Foreign Judicial Decisions that a contrary approach would enable the applicant to re-open a procedure that was already closed:

“ … the Court’s assessment of the existence of an arguable claim in the present case may not directly address the main libel case in Norway but is limited to the ensuing enforcement proceedings in Sweden. A contrary approach would give an applicant the undue possibility of having reopened matters already fi nally settled, at the risk of upsetting the coherence of the division of roles between national review bodies and the European Court, making up the system of collective enforcement under the Convention.”

Even assuming, for the sake of argument, that Article 13 was applicable, however questionable this might be, the Court rejected the complaint on the merits. Th e reasoning is of interest as the Court expressly refrained from indicating what standard (minimal or optimal) should apply for the review:

“Comparable issues have previously been examined in the context of co-operation between States inside and outside the Convention territory, notably in the plenary Drozd and Janousek v. France and Spain judgment of 26 June 1992 (Series A no. 240) and the Iribarne Pérez v. France judgment of 24 October 1995 (Series A no. 325-B). Both cases concerned complaints about the enforcement in a Contracting State of a judgment by a court of a non-Contracting State (in Andorra – before joining the Council of Europe) reached in proceedings claimed to be at variance with due process. Th e Court attached decisive weight to whether the impugned conviction was the result of a ‘fl agrant denial of justice’ (see Drozd and Janousek, §110; and Iribarne Pérez, §31; see also Pellegrini v. Italy, no. 30882/96, ECHR 2001-VIII, even though no express mention was made of the said criterion in that judgment). However, the Court does not deem it necessary for the purposes of its examination of the present case to determine the general issue concerning what standard should apply where the enforcing State as well as the State whose court gave the contested decision is a Contracting Party to the Convention and where the subject-matter is one of substance (i.e., here, the freedom of expression) rather than procedure.”

Being mindful of the fact that the State from which the decision emanated and that in which it was enforced were both High Contracting Parties, the Court confi ned itself to recognising that, in this case, the review carried out by the Swedish courts was satisfactory for the purposes of Article 13 of the Convention:

“In the particular circumstances it suffi ces to note that the Swedish courts found that the requested enforcement (in respect of the award of compensation and costs made in the Norwegian judgment) was neither prevented by Swedish public order or any other obstacles under Swedish law. Th e Court, bearing in mind its fi ndings above as to whether the applicant had an arguable claim, does not fi nd that there were any compelling reasons against enforcement. Th at being so, the Court is clearly satisfi ed that the Swedish courts reviewed the substance of the applicant’s complaint against the requested enforcement of

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 13 Dean Spielmann

the Norwegian judgment, to a suffi cient degree to provide him an eff ective remedy for the purposes of Article 13 of the Convention.”

It is noteworthy that, in reaching this conclusion, the Court transposed to Article 13 a line of reasoning traditionally adopted in the context of Article 6, thus considering the enforcement procedure to warrant autonomous consideration and confi rming the requirement of an eff ective remedy. Using the same reasoning, the Court did not hesitate to reject the complaint under Article 10 of the Convention as well:

“… the Court sees no reason to doubt that the interference with the applicant’s Article 10 rights by the Swedish authorities’ enforcement of the Norwegian judgment was ‘prescribed by law’ and pursued legitimate aims, namely ‘the protection of the reputation or rights of others’ and ‘maintaining the authority of the judiciary’. Moreover, bearing in mind its reasoning and conclusions above in relation to Article 13, the Court fi nds that the interference resulting from the decision to enforce the judgment was clearly ‘necessary’ within the meaning of the second paragraph of Article 10.”

Apart from the requirements relating to respect for the right to a fair trial and to an eff ective remedy, the enforcement of foreign judicial decisions thus also raises questions that go to the merits and engage other substantive provisions of the Convention.43 What then can be said about the refusal to recognise and enforce foreign judicial decisions?

II. EMBRYONIC CASE-LAW CONCERNING THE OBLIGATION OF RECOGNITION AND ENFORCEMENT

Th ere is a rather embryonic body of case-law concerning the obligation to recognise and enforce foreign judicial decisions.44 Refusal to recognise and enforce such decisions may disregard the requirements of a fair hearing (1). But such refusal may also run counter to other fundamental rights guaranteed by the Convention (2).

43 Compare, as regards the application of the Hague Convention on the civil aspects of international child abduction, of 25 October 1980, the recent Grand Chamber judgment in Neulinger and Shuruk v. Switzerland (no. 41615/07, 6 July 2010), concerning the enforcement of a Swiss court order for the return of a child unlawfully removed by its mother from Israel. Th e Court decided in that judgment that the order was not in the child’s interest and that its enforcement would be in breach of Article 8 of the Convention (this case did not, of course, concern a foreign order). 44 See P. Kinsch, “Le droit international privé au risque de la hiérarchie des normes…”, op. cit., Annuaire de droit européen, 2007, pp. 958 et seq.

14 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

A. RIGHT TO A FAIR HEARING AND OBLIGATION OF RECOGNITION AND ENFORCEMENT

In its McDonald v. France decision of 29 April 200845, the Court for the fi rst time extended the Hornsby v. Greece46 case-law to the enforcement of foreign decisions. Th e Court acknowledged that the refusal to authorise the enforcement of a divorce decree from a US court represented an interference with the applicant’s right to a fair hearing. However, before bringing proceedings in the US courts with the intention of seeking the enforcement in France of the foreign decision, the applicant could have appealed against the judgment of the French court in which he himself had initially chosen to fi le his petition for divorce. It was for this reason that the Court found the application manifestly ill-founded in the following terms:

“La Cour reconnaît que le refus d’accorder l’exequatur des jugements du tribunal américain a représenté une ingérence dans le droit au procès équitable du requérant. Elle rappelle toutefois qu’en règle générale, nul ne saurait se plaindre d’une situation qu’il a lui-même pu contribuer à créer par sa propre inaction (Freimanis et Lidums c. Lettonie, (déc.), no 73443/01, 30 janvier 2003 et Hussin c. Belgique, (déc.), no 70807/01, 6 mai 2004). Examinant les faits de l’espèce et les arguments des parties, la Cour observe que le requérant lui-même admet avoir laissé passer le délai pour faire appel. Après avoir été débouté de sa demande en divorce en France, il a saisi le juge américain d’une demande similaire après un court séjour en Floride et, suite au jugement américain, a cessé de verser sa contribution aux charges du mariage à son épouse alors que cette question n’avait pas été tranchée par le juge américain qui l’avait renvoyée au juge français. La Cour constate qu’avant de former une action devant les juridictions américaines pour ensuite solliciter l’exequatur en France de la décision étrangère, il appartenait au requérant d’interjeter appel du jugement du tribunal de grande instance de Marseille du 3 décembre 1997 qu’il avait lui-même initialement choisi de saisir de sa demande en divorce. Il ne saurait dès lors être fait grief aux autorités françaises d’avoir refusé l’exécution d’une décision qui leur est apparue comme ayant pour but de faire échec, du fait de l’inaction du requérant, aux règles de procédure applicables”.

Th e fact that the Court declared the application inadmissible is immaterial. In this author’s view, the McDonald decision, which has been discussed in specialised literature for some time47, has far-reaching implications. Patrick Kinsch has observed

45 McDonald v. France, no. 18648/04 (dec.), 29 April 2008; R.C.D.I.P., 2008, 830, note by Kinsch; J.D.I., 2009, 193, note by Marchadier. 46 Hornsby v. Greece, 19 March 1997, Reports of Judgments and Decisions 1997-II. 47 See, in particular, F. Marchadier, Les objectifs généraux…, op. cit., esp. pp. 371–372, no. 275, discussing the obligation to recognise foreign judgments de plano; P. Kinsch, “Th e Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments”, Essays in Memory of Peter E. Nygh, op. cit., pp. 197–228; by the same author, “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 94: “Le refus de la reconnaissance d’un jugement étranger en tant qu’ingérence dans des droits garantis”. Also, F. Marchadier, “La protection européenne des situations constituées à l’étranger”, Dalloz-Sirey, 2007, 2700.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 15 Dean Spielmann

– quite rightly – that this decision was innovative, making it possible from now on to attach the right to the recognition or enforcement of foreign decisions directly to the right to a fair hearing. Th e very respect that is due to foreign decisions, regardless of any substantive rights that may be involved, is thus supposed to suffi ce as the basis for the right to their international enforcement.48 Moreover, it was the fi rst time that a refusal to recognise a foreign decision had been regarded as representing an interference in the right to a fair hearing (the question having expressly been left open in the Sylvester v. Austria (no. 2) decision of 9 October 2003).49 Such interference is assessed here in the enforcement phase, which is thus covered by the fair hearing guarantees. For Fabien Marchadier, Article 6 of the Convention concerns all the stages of the trial, including the enforcement of the judgment, and no distinction should be made according to the origin of the judgment.50

48 “[La décision] a innové (…) sur ce point, en permettant désormais de rattacher le droit à la reconnaissance ou à l’exequatur des jugements étrangers directement au droit au procès équitable. Ainsi, c’est le respect dû aux jugements étrangers en tant que tel, et indépendamment des droits substantiels éventuellement impliqués, qui est censé suffi re pour fonder le droit à leur exécution internationale”; P. Kinsch, R.C.D.I.P., 2008, p. 839. As to the purely procedural approach to the question of a possible obligation to recognise foreign judgments, see also P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., pp. 95–96, no. 62. 49 “[La Cour a accepté] pour la première fois (la question avait été expressément laissée ouverte par une décision Sylvester c/ Autriche (n° 2) du 9 octobre 2003, n° 54640/00) de considérer le refus de la reconnaissance d’un jugement étranger comme représentant une ingérence dans le droit au procès équitable”; P. Kinsch, R.C.D.I.P., 2008, pp. 838–839. Th e issue has also been raised in a recent case concerning the non-enforcement (and non-recognition) of a judgment of the High Court of England and Wales awarding the applicants substantial damages for damage caused to their reputation by the publication of a newspaper article in London. See Achilleas Constantinou and Others v. Cyprus (dec.), no. 3888/06, 17 September 2009 (see also below, note 68). In its decision of 17 September 2009, the Court, however, rejected the complaint, which was not in fact communicated to the respondent Government, fi nding that it could not act as a court of “fourth instance”: “With regard fi rst to the applicants’ complaints under Article 6 of the Convention concerning the fairness of the proceedings the Court notes the following. In so far as the applicants are complaining about the Supreme Court’s judgment holding that the High Court’s judgment could not be enforced, the Court reiterates that it is not its task to act as a court of appeal or as a court of fourth instance, against the decisions of the domestic courts. It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, §28, ECHR 1999-I). In the present case the applicants are in essence requesting the Court to review the fi ndings of the domestic courts, and in particular of the Supreme Court, concerning the enforcement of the judgment of the High Court in Cyprus. Th e Court considers that both the District Court and the Supreme Court gave suffi cient and thorough reasons for their conclusions in this respect. Th ere is no indication of arbitrariness or unfairness. Th is complaint is therefore manifestly ill-founded within the meaning of Article 35 §§3 and 4 of the Convention.” 50 “l’article 6 de la Convention concerne toutes les phases du procès, y compris l’exécution du jugement. Et, à cet égard, aucune distinction ne doit être opérée selon l’origine du jugement”; F. Marchadier, J.D.I., 2008, p. 196.

16 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

A very recent judgment of the European Court of Human Rights, delivered on 3 May 201151, concerning an unjustifi ed refusal to recognise the adoption of an adult by his clergyman uncle, has confi rmed the case-law to the eff ect that the Article 6 guarantees extend to the enforcement of foreign judgments. Relying on Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1, the applicant complained that his adoption in the United States of America had not been recognised in Greece. It is noteworthy that the adoption had been declared fi nal and legally enforceable in Greece, but, following proceedings brought by other family members challenging the recognition of the adoption, the Court of Cassation, in its plenary formation, took the view that adoption by a monk was contrary to Greek public policy (ordre public), basing its decision on canon-law texts from the seventh and ninth centuries. In its judgment, the European Court of Human Rights found that the Greek courts should not have interpreted the notion of public policy arbitrarily and disproportionately. Bearing in mind the texts on which the Court of Cassation had relied in refusing to recognise the adoption and the Court’s own fi ndings in this connection under Article 8 of the Convention – which will be referred to again below – the Court held that the proportionality principle had not been respected under Article 6 §1 of the Convention.52 However, in another case, Vrbica v. Croatia, 1 April 201053, the Court had chosen a diff erent approach, rather than examining the Article 6 complaint in terms of the enforcement of a decision. In that judgment the Court had considered whether the Croatian courts had restricted the applicant’s right of access to a court.54

51 Negrepontis-Giannisis v. Greece, no. 56759/08, 3 May 2011. 52 §§90–91. 53 Vrbica v. Croatia, no. 32540/05, 1 April 2010. 54 In the case of Hussin v. Belgium ((dec.), no. 70807/01, 6 May 2004), the applicants had also argued that the refusal to authorise the enforcement of decisions obtained in Germany had, as such, constituted a violation of the rights guaranteed by Article 6 §1 of the Convention and, in particular, the right of access to a court and the right to a fair hearing. Th e complaint was rejected on the basis of the following reasoning: “La Cour rappelle qu’elle a pour seule tâche, conformément à l’article 19 de la Convention, d’assurer le respect des engagements résultant de la Convention pour les Parties contractantes. En particulier, elle n’est pas compétente pour examiner une requête relative à des erreurs de fait ou de droit prétendument commises par une juridiction interne, ni pour substituer sa propre appréciation à celle des juridictions nationales, sauf si et dans la mesure où ces erreurs lui semblent susceptibles d’avoir entraîné une atteinte aux droits et libertés garantis par la Convention (cf., par exemple, García Ruiz c. Espagne [GC], no 30544/96, §§28–29 CEDH 1999-I). En l’espèce, la Cour n’estime pas être compétente pour statuer sur l’interprétation de la Convention de Bruxelles du 27 septembre 1968. Elle note, par contre, que les requérantes ont bénéfi cié d’une procédure contradictoire devant les juridictions de première instance, comme devant la Cour de cassation. Elles ont pu présenter tous les arguments qu’elles jugeaient pertinents pour la défense de leur cause et ceux-ci ont été eff ectivement examinés par les juges saisis. Par conséquent, la Cour estime que, prise dans son ensemble, la procédure suivie a revêtu un caractère équitable”. It should be noted that the Court also found the exequatur proceedings to have been completed within a reasonable time.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 17 Dean Spielmann

Th e case concerned certain shortcomings of the Croatian authorities as regards the enforcement of a decision given in Montenegro. Th e specifi c feature of that case – distinguishing it from McDonald v. France55 – was that the decision in question had been recognised by the Croatian authorities. For purely formal reasons, the enforcement proceedings had been delayed and had ultimately become time-barred. Using the reasoning it had adopted in fi nding a violation of Article 1 of Protocol No. 1 – to be discussed below – the Court took the view that the applicant had not been able to foresee that the institution of the proceedings for recognition of a foreign judgment would not interrupt the running of the statutory limitation period.56 Th e Court thus found a violation of Article 6 §1 of the Convention on the ground that the applicant’s right of access to a court had been breached.57 By placing itself on the terrain of access to a court, the Court thus regarded the refusal to enforce foreign judicial decisions as an autonomous question, in terms of Article 6 §1.58

55 See above. Th e case of Vrbica v. Croatia can also be distinguished in this respect from that of Achilleas Constantinou v. Cyprus, cited at note 49 above and note 68 below. However, in Constantinou the Court did not rule on the issue of the obligation of recognition and enforcement. 56 Th e reasoning reads as follows: “71. In order to satisfy itself that the very essence of the applicant’s ‘right to a tribunal’ was not impaired by declaring the enforcement inadmissible, the Court must examine whether the view of the domestic courts that the institution of the proceedings for recognition of a foreign judgment by the applicant did not interrupt the running of the ten-year statutory limitation period, and the resultant sanction for failing to respect that time-limit, infringed the proportionality principle (see, mutatis mutandis, Levages Prestations Services v. France, 23 October 1996, §42, Reports of Judgments and Decisions 1996-V, and Osu v. Italy, no. 36534/97, §35, 11 July 2002). 72. In this connection the Court refers to its above fi ndings in respect of the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention, according to which the applicant could have reasonably expected that instituting proceedings for recognition of a foreign judgment would interrupt the running of the statutory limitation period and that the judgment of the Koprivnica Municipal Court of 28 September 2004 to the contrary was not in line with the established case- law of the Supreme Court (see paragraphs 54–56 above). In these circumstances, the refusal of the domestic courts to allow the enforcement of the recognised foreign judgment of 15 October 1991 rendered in the applicant’s favour infringed the proportionality principle and thus impaired the very essence of his right of access to a court.” 57 See, however, the concurring opinions of Judges Spielmann and Malinverni, who took the view that there had been a violation of Article 6 not because the applicant had been deprived of his right of access to a court, but because, both by displaying excessive formalism and by interpreting the relevant statutory provisions arbitrarily, the judicial authorities had deprived him of the fair hearing to which he was entitled (see §15 of Judge Malinverni’s opinion and §2 of Judge Spielmann’s opinion). For these two judges, therefore, it was not a matter of access to justice. 58 In the K. v. Italy judgment, cited by P. Kinsch (“Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 95, no. 63, note 209), concerning the length of proceedings for the recovery of maintenance based on a Polish decision, the Court found a violation of Article 6 of the Convention. (K. v. Italy, no. 38805/97, ECHR 2004-VIII). See also the judgment in Wagner and J.M.W.L. v. Luxembourg (no. 76240/01, ECHR 2007-VII (extracts), see below), where the Court found, in a case concerning a refusal to enforce a Peruvian adoption order, a violation of Article 6 of the Convention, on account of the domestic court’s failure to examine a ground of appeal raised under the Convention. In the Court’s view, the question of the incompatibility of the decision at fi rst instance with Article 8 of the Convention – in particular from the aspect of its conformity to international public policy – had been among the main pleas put forward by the applicants and

18 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

B. REQUIREMENT OF RECOGNITION AND ENFORCEMENT ARISING FROM SUBSTANTIVE CONVENTION RIGHTS

Th e recognition and enforcement of foreign judicial decisions are required, where appropriate, on the basis of substantive Convention rights.59 Th is approach, which appears rather innovative60, has been supported by a certain number of private

had thus required a specifi c and explicit response. Th e Court of Appeal had failed to respond to the ground of appeal alleging that public policy specifi cally required, on the basis of Article 8 of the Convention, that the Peruvian adoption decision be enforced. Th e Court of Cassation had, moreover, upheld that decision reached by the tribunals of fact, in spite of having previously held that the Convention had direct eff ects in the Luxembourg legal order. In those circumstances, the Court considered that the applicants had not been given an eff ective hearing by the Luxembourg courts, which had thus failed to guarantee their right to a fair hearing. As P. Kinsch notes, examining the question of the refusal to recognise a foreign judgment as an interference with the right to a fair hearing (“Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 95, no. 63), “…l’instance en exequatur est une instance devant la justice de l’Etat requis, à laquelle doivent s’appliquer les mêmes garanties qu’aux autres procédures devant les mêmes tribunaux.” 59 Already in the case of Hussin v. Belgium (Hussin v. Belgium (dec.), no. 70807/01, 6 May 2004), concerning the withdrawal by the Belgian courts of an authorisation, initially granted on the basis of the Brussels Convention of 27 September 1968, to enforce two decisions of German courts concerning the establishment of the parent-child relationship between the second applicant and her biological father and the related maintenance obligation, the applicants had complained of a violation of Articles 6, 8 and 14 of the Convention, together with Article 1 of Protocol No. 1. Concerning the complaint under Article 8 and Article 1 of Protocol No. 1 the Court found as follows: “La Cour reconnaît que le refus d’accorder l’exequatur des jugements du tribunal de district de Siegburg a représenté une ingérence dans le droit au respect de la vie privée et familiale des requérantes, ainsi qu’une atteinte à leur droit au respect de leurs biens. Elle rappelle toutefois qu’en règle, nul ne saurait se plaindre d’une situation qu’il a lui-même pu contribuer à créer (Freimanis et Lidums c. Lettonie, décision du 30 janvier 2003). Examinant les faits de l’espèce, la Cour observe que le refus d’accorder l’exequatur et les préjudices qui en sont résultés proviendraient de ce que, initialement, les requérantes ne se seraient pas adressées aux juridictions compétentes et n’auraient dès lors pas pu obtenir l’exécution des décisions prononcées. Il ne saurait être fait grief aux autorités belges d’avoir refusé l’exécution de décisions qui leur sont apparues comme n’ayant pas été prises dans le respect des règles de compétence applicables”. On this case see P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., pp. 98 et seq., and “Recognition in the Forum of a Status Acquire d Abroad – Private International Law Rules and European Human Rights Law”, in K. Boele-Woelki, T. Einhorn, D. Girsberger et S. Symeonides (eds.), Convergence and Divergence in Private International Law, Liber Amicorum Kurt Siehr, Eleven International Publishing, 2010, pp. 259 et seq., esp. pp. 261 et seq. and “Le droit international privé au risque de la hiérarchie des normes…”, op. cit., Annuaire de droit européen, 2007, pp. 957 et seq., at p. 961. On the question of the “situation created by the applicants”, about which they were not entitled to complain, compare in the context of Article 6 §1 of the Convention McDonald v. France (no. 18648/04 (dec.), 29 April 2008; R.C.D.I.P., 2008, 830, note Kinsch; J.D.I., 2009, 193, note Marchadier). 60 See P. Kinsch, “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 96, no. 64, referring to A. Bucher (“La famille en droit international privé”, Academy of International Law, Collected Courses, vol. 283 (2000), pp. 9, 96–115), “auteur d’une proposition de reformulation radicale du droit de la reconnaissance et de l’exécution des jugements étrangers en

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 19 Dean Spielmann international law commentators. However, as Patrick Kinsch judiciously noted in his Hague Academy course, the question should rather be addressed in a nuanced manner.61 Why? First of all, a refusal to recognise and enforce, as has been shown in the fi rst part of this article, may be called for, at least in cases where there has been a “fl agrant denial of justice” under Article 6, or possibly under Article 13. A requirement of recognition and enforcement, as may be imposed by a substantive right, is therefore capable of coming into confl ict with Articles 6 or 13 of the Convention – or even other substantive rights – which, for their part, could justify a refusal. Any interference with a substantive right arising from a refusal may then prove justifi ed, provided such interference is not disproportionate.62 In three cases the Court has found such refusal to be contrary to the Convention. Th e fi rst of these was Wagner v. Luxembourg, judgment of 28 June 2007.63 Th is case concerned a refusal to authorise the enforcement of a Peruvian full adoption order. Th e Court took the view that the refusal constituted a violation of the applicants’ right to respect for their family life (Article 8 of the Convention), fi nding as follows:

“132. Th e Court considers that the decision refusing enforcement fails to take account of the social reality of the situation. Accordingly, since the Luxembourg courts did not formally acknowledge the legal existence of the family ties created by the Peruvian full adoption, those ties do not produce their eff ects in full in Luxembourg. Th e applicants

matière familiale, fondée non plus sur les concepts traditionnels du droit international privé, mais directement sur le droit, garanti par l’article 8 de la Convention européenne des droits de l’homme, au respect de la vie privée et familiale.” 61 “Il convient, plutôt, d’approcher la question de manière nuancée”; in “Droits de l’homme, droits fondamentaux et droit international privé”, op. cit., p. 101, no. 68. 62 P. Kinsch, op. cit. and loc. cit. cites a decision in which the Court agreed that to subject the enforcement of a monetary award by a foreign court to formal authorisation (exequatur) was not in breach of the Convention. Dumitrascu v. Romania and Turkey (dec.), no. 43007/02, 9 June 2005. See also P. Kinsch’s reference to substantive grounds for refusal stemming simply from private international law: “ … l’approche procédurale [de la question de l’éventuelle obligation de reconnaître des jugements étrangers] tend à obscurcir les justifi cations d’ordre substantiel que le droit international privé de tel ou tel Etat peut présenter à l’appui du refus de la reconnaissance de certains jugements étrangers”. (op. cit., p. 95, no. 62). In a recent article P. Kinsch cites a case pending before the Court concerning the refusal by the Swiss authorities to recognise a Mexican adoption order on account of the Mexican courts’ lack of jurisdiction given that the parents resided in Switzerland. See Michel v. Switzerland, no. 3235/09. See P. Kinsch, “Recognition in the Forum of a Status Acquired Abroad …”, Liber Amicorum Kurt Siehr, op. cit., p. 8, note 25. 63 Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, ECHR 2007-VII (extracts), R.C.D.I.P., 2007, 807, note by Kinsch; J.D.I., 2008, note d’Avout; Dalloz-Sirey, 2007, 2700, note by Marchadier, G.P., 28 March 2008, 31, note by Niboyet and A.J.D.A., 2007, 1920; P. Kinsch, “La condamnation du Luxembourg pour non-reconnaissance d’une adoption péruvienne et ses eff ets sur le droit (international) privé luxembourgeois”, Pasicrisie luxembourgeoise, vol. 33 (doctrine), pp. 225 et seq.; by the same author, “Recognition in the Forum of a Status Acquired Abroad – Private International Law Rules and European Human Rights Law”, Liber Amicorum Kurt Siehr, op. cit., pp. 259 et seq., esp. pp. 263 et seq. See also the conclusions of T. Marzal Yetano, “Th e Constitutionalisation of Party Autonomy in Private Family Law”, Journal of Private International Law, 2010, pp. 155 et seq.

20 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

encounter obstacles in their daily life and the child is not aff orded legal protection making it possible for her to be fully integrated into the adoptive family.

133. Bearing in mind that the best interests of the child are paramount in such a case (see, mutatis mutandis, Maire, cited above, §77), the Court considers that the Luxembourg courts could not reasonably disregard the legal status validly created abroad and corresponding to a family life within the meaning of Article 8 of the Convention. However, the national authorities refused to recognise that situation, making the Luxembourg confl ict rules take precedence over the social reality and the situation of the persons concerned in order to apply the limits which Luxembourg law places on full adoption.” In that judgment the Court also found that there had been a violation of Article 14 of the Convention in conjunction with Article 8.64 In a second case, the requirement of enforcement arising from substantive Convention rights was further asserted in the Vrbica v. Croatia judgment of 1 April 2010.65 As mentioned above, the enforcement of a decision in this case had, for purely formal reasons, been delayed and had then become time-barred.66 Th e Court found that the interference in issue, namely the Croatian court’s decision that the enforcement was time-barred, was incompatible with the principle of lawfulness and thus breached Article 1 of Protocol No. 1, given that the interpretation of the relevant domestic provisions was not foreseeable by the applicant, who could legitimately have expected that the procedure for the recognition of a foreign judgment would suspend the running of the limitation period:

64 Th e Court noted that the consequence of the refusal to order enforcement was that the child J.M. suff ered on a daily basis a diff erence in treatment by comparison with a child whose full adoption was recognised in Luxembourg. Whilst the child’s ties with her family of origin had been severed, no full and entire substitute tie existed with her adoptive mother. Th e child was therefore in a legal vacuum, which had not been remedied by the fact that simple adoption had been granted in the meantime. Not having acquired Luxembourg nationality, J.M. did not have the advantage of, for example, Community preference. In addition, for more than ten years she had had to be regularly granted leave to remain in Luxembourg and to obtain a visa in order to visit certain countries, in particular Switzerland. As to Mrs Wagner, she in turn suff ered, on a daily basis, the obstacles experienced by her child, since she was obliged, inter alia, to go through all the administrative procedures resulting from the fact that the child had not obtained Luxembourg nationality. Th e Court did not fi nd any ground to justify such discrimination. Th at conclusion was particularly valid in that, before the facts in issue, other Peruvian children adopted by unmarried mothers had automatically obtained a full adoption judgment in Luxembourg. Because of her status as a child adopted by an unmarried mother of Luxembourg nationality who had not obtained recognition in that country of the family ties created by the foreign judgment, J.M. was penalised in her daily existence. Accordingly, the Court found that there had been a violation of Article 14 of the Convention in conjunction with Article 8. 65 Vrbica v. Croatia, no. 32540/05, 1 April 2010. 66 See above.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 21 Dean Spielmann

“55. What is more, leaving aside the domestic law considerations, the Court fi nds untenable the view of the domestic courts that instituting proceedings for recognition of a foreign judgment does not interrupt the running of a statutory limitation period. If this view were to be accepted, it would lead to a situation where a judgment creditor could lose the right to enforce a foreign judgment owing to possible procrastination in the proceedings for its recognition, that is to say, for reasons beyond his or her control. Th at situation would seriously jeopardise the principle of legal certainty and would be irreconcilable with the principle of the rule of law.

56. Th e foregoing considerations are suffi cient for the Court to conclude that the impugned interference in the form of the Koprivnica Municipal Court’s judgment of 8 June 2004 was incompatible with the principle of lawfulness and therefore contravened Article 1 of Protocol No. 1 to the Convention, because the manner in which that court interpreted and applied the relevant domestic law, in particular section 388 of the Obligations Act, was not foreseeable for the applicant, who could have reasonably expected that instituting proceedings for recognition of a foreign judgment would interrupt the running of the statutory limitation period (see, for example and mutatis mutandis, Nacaryan and Deryan, cited above, §§51–60, and Fokas v. Turkey, no. 31206/02, §§42–44, 29 September 2009).”67

Lastly, in the recent case of Negrepontis-Giannisis v. Greece68, the Court found that a refusal to recognise adoption in Greece constituted interference with Mr Negrepontis-Giannisis’ right to respect for his private and family life. For the Court, the main question concerned the necessity of such interference in a democratic society. Th e Court addressed that question as follows:

“71. La Cour attache beaucoup d’importance à la nature des règles sur lesquelles s’est fondée la formation plénière de la Cour de cassation pour déclarer que l’adoption par un moine s’opposait à l’ordre public: le 6ème canon apostolique, le 3ème canon du Septième concile œcuménique, le 11ème canon du concile prime-second, le 3ème canon fondamental

67 Compare Achilleas Constantinou and Others v. Cyprus ((dec.), no. 3888/06, 17 September 2009, concerning a failure to enforce a judgment of the High Court of England and Wales awarding the applicants substantial damages for damage caused to their reputation by a newspaper article in London. In addition to the complaint under Article 6 of Convention (see note 49 above), the applicant had also invoked substantive rights (Articles 8, 13, 14 and Article 1 of Protocol No. 1). In its decision of 17 September 2009 the Court, however, rejected these complaints: “With regard to the applicants’ complaints under Articles 8 and 1 of Protocol No. 1 of the Convention, the Court considers that no issue arises under these provisions from the moment that the judgment of the High Court was not recognised by the domestic courts for the purposes of enforcement in Cyprus. Moreover, the Court notes that the applicants’ complaint under Article 14 of the Convention lacks any substantiation. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§3 and 4 of the Convention.” 68 Negrepontis-Giannisis v. Greece, no. 56759/08, 3 May 2011.

22 Intersentia Recognition and Enforcement of Foreign Judicial Decisions

du 4ème concile œcuménique de Chalcidone, les canons apostoliques 6, 81 et 83 et le 45ème canon du concile quinisexte. Comme le soutient le requérant, ces règles ne permettent pas que les moines assument des ‘soins séculiers’ et à compter de leur tonsure, ils sont considérés comme des défunts et ils ne peuvent pas adopter.

72. La Cour note que ces règles sont toutes de nature ecclésiastique et datent des septième et neuvième siècles. La formation plénière de la Cour de cassation a fait application de ces règles, alors que l’article 3 de la loi 1250/1982 abrogeant l’article 1364 de l’ancien code civil grec qui interdisait aux moines de se marier, autorise désormais de manière expresse leur droit au mariage. Dans les travaux préparatoires de cette loi, il était mentionné que certains empêchements au mariage, dont l’interdiction du mariage de moines, ne poursuivaient aucune nécessité sociale et ne pouvaient s’appliquer dans l’ordre juridique. La Cout note, en outre, qu’en l’espèce l’adoption est intervenue postérieurement à l’entrée en vigueur de cette loi.

…

74. La Cour rappelle aussi que dans une aff aire d’adoption à l’étranger mais avec des faits diff érents de ceux de l’espèce, elle a conclu que les juges nationaux ne pouvaient raisonnablement passer outre au statut juridique créé valablement à l’étranger et correspondant à une vie familiale au sens de l’article 8 de la Convention, ni refuser la reconnaissance des liens familiaux qui préexistaient de facto et se dispenser d’un examen concret de la situation (Wagner et J.M.W.L. c. Luxembourg, no 76240/01, §§133 et 135, 28 juin 2007)”.

Th e Court also observed that in the case of Mr Negrepontis-Giannisis, the adoption order had been obtained in 1984, when he had already come of age, and had remained valid for 24 years, and that the adoptive father had expressed his wish to have a legitimate son who would inherit his property. Accordingly, the Court was of the view that the refusal to give eff ect in Greece to the adoption order in respect of Mr Negrepontis-Giannisis had not met any pressing social need and had not been proportionate to the aim pursued. Th ere had therefore been a breach of Article 8.69 Lastly, the Court reiterated that a diff erence in treatment – such as the diff erence in the treatment of Mr Negrepontis-Giannisis, as an adopted child, compared with a biological child – was discriminatory if it had no objective and reasonable justifi cation.70 It observed that, since 1982, monks had been allowed to marry and found a family and that the law laying down that rule had been enacted before the applicant’s adoption (in 1984). Th erefore, a biological child born to Mr Negrepontis at the time the applicant was adopted could not have been deprived of his or her rights of descent. In view of this unjustifi ed diff erence in treatment, there had been a

69 §§75–76. 70 §81.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 23 Dean Spielmann violation of Article 8 taken in conjunction with Article 14.71 Th e Court further took the view that the decision of the Greek courts, which had resulted in the applicant’s being deprived of his status as heir, amounted to interference with his right to the peaceful enjoyment of his possessions in violation of Article 1 of Protocol No. 1.72

CONCLUSION

It can be seen from the case-law of the European Court of Human Rights that the review of the enforcement of foreign judicial decisions must be carried out in accordance with the requirements of the right to a fair hearing, even though it is not quite clear from the case-law whether the review should apply an optimal standard or merely a minimal standard, namely the “fl agrant denial of justice” test. Such review is mandatory, at least if the decision to be enforced emanates from the court of a third State. Th e European Court does not hesitate to substitute its own review for that of the courts of the requested State if theirs has been defi cient. Th e recognition and enforcement procedure must itself be satisfactory in relation to the requirements of a fair hearing and the right to an eff ective remedy. It is thus to be regarded as an autonomous question. It should be added that recognition and enforcement may prove to be incompatible with other substantive fundamental rights. By contrast, a refusal to recognise and enforce a foreign judicial decision may on occasion, in the absence of justifi cation, impair a person’s right to a fair hearing. Refusal may also infringe substantive fundamental rights guaranteed by the Convention. It can therefore be foreseen that, in certain exceptional cases, the Court may in the future have to proceed with a balancing of interests in order to ascertain whether the Convention requires the authorities to refuse enforcement or, on the contrary, prohibits such refusal.

71 §84–85. 72 §104.

24 Intersentia FOR WHOM THE ALARM BELLS RING? Developments in asylum seekers’ rights in Europe

Ledi Bianku*

I. INTRODUCTION – INCREASING CONCERNS ABOUT THE ASYLUM SYSTEM

I fi rst asked this question, in relation to applications submitted before the European Court of Human Rights under Articles 2, 3, and 13 to the Convention and which were covered by the eff ects of the Dublin II Regulation1, sometime in the spring of 2009 in presence of my fellow judges, in the format of the Judicial Refl ection Group.2 Th e increasing number of applications dealing with this issue before the Court, the ever more dramatic situation in the EU Member States with outside borders and in the frontier Dublin II Member States3, and notably, in Greece, Malta, Italy and Spain, and the complicated legal issues pertaining to these situations were some of the reasons that let me to raise this issue with my colleagues. Th e following events, especially in 2010 and 2011 both inside and outside the Court reinforced the reasons for asking this question again and further refl ecting on the way a judge may act in response to these legal and practical problems. Th e fact is that it would have been very problematic for the European Court of Human Rights to overlook the situation in practice. Indeed, the practical situation gave rise to some 1000 applications before the Strasbourg Court during 2010. Th e increasing number of asylum seekers over the period from 2007 to 20094, due to various factors, from the geographical position to the cumbersome procedures for determination of

* Judge of the European Court of Human Rights. 1 Th e full title of this act is: “Council Regulation No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.” 2 Judicial Refl ection Group is an informal gathering among judges of the Court to discuss specifi c issues of jurisprudence and doctrinal developments in areas of interest to the work of the Court. 3 Th is term expression will be used throughout this Article as including all States towards which the Dublin II Regulation does apply. 4 See UNHCR “Observations on Greece as a country of asylum”, December 2009. See as well Frontex data in www.frontex.europa.eu/ and especially on the trends see Frontex Press Pack of May 2011.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 25 Ledi Bianku their status by the Hellenic authorities, created an alarming situation. It was and still remains clear, on one hand, that most of the people crossing to Greece do not intend to stay there, especially given the conditions due to an economic crisis. Th ey did not enter Greece as such, but EU. Furthermore it was and still is clear, on the other hand, that the Hellenic authorities are now faced with the objective impossibility of dealing swift ly with their asylum applications and sheltering them in decent conditions in the meantime. From the legal point of view, the situation was not easy either. Most of the asylum seekers left Greece and were seeking asylum in other EU member states, whereas on the basis of Chapter III of the Dublin II Regulation, Greece, as the fi rst country of entry would be the State responsible for dealing with their applications.5 Th us, the responsibility of diff erent States of the EU was at stake, as it related to the implementation of the Common European Asylum System6 and especially of the Dublin II Regulation. Th is article does not intend to analyze the EU asylum policy as such7, but only the impact of its operation in practice from the perspective of the protection of

According to diff erent data, in 2010 almost 90% of asylum seekers in EU entered through Greece (see paragraph 87 of the ECJ judgment of 21.12.2011). 5 In this Article both terms “requesting/requested – Member State” used in Articles 17–21 of the Dublin II Regulation, as well as the term “responsible State” used by the ECJ in its judgement of 21 December 2011 (see the following footnote) will be used. 6 Besides the Dublin II Regulation the relevant EU legislation composing the CEAS consists of: Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18); Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualifi cation and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12, and corrigendum, OJ 2005 L 204, p. 24); Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13, and corrigendum, OJ 2006 L 236, p. 36) and Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass infl ux of displaced persons and on measures promoting a balance of eff orts between Member States in receiving such persons and bearing the consequences thereof (OJ 2001 L 212, p. 12). See also paragraphs 6 and following of the Judgement of the ECJ (Grand Chamber) in the Joined Cases C-411/10 and C-493/10, N. S. (C-411/10) v Secretary of State for the Home Department and M. E. (C-493/10), A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform. 7 See on the CEAS among many others Elspeth Guild “Th e Europeanisation of Europe’s Asylum Policy” at doi:10.1093/ijrl/eel018, available online at www.ijrl.oxfordjournals.org, Koen Lenaerts, “Th e Contribution Of Th e European Court Of Justice To Th e Area Of Freedom, Security And Justice”, in ICLQ vol. 59, April 2010 pp 255–301, A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, Maryellen Fullerton, Global Studies Law Review, Vol. 10, No. 1. See for a recent and complete analysis “Putting solidarity to the test: assessing Europe’s response to the asylum crisis in Greece” Research Paper No. 231, Paul McDonough and Evangelia (Lilian) Tsourdi, January 2012, UNHCR, Policy Development and Evaluation Service.

26 Intersentia For Whom the Alarm Bells Ring? fundamental rights by the two Courts in Strasbourg and in Luxembourg, especially in case of massive asylum fl ows in individual Dublin II Member States.8

II. WHEN BELLS RANG IN STRASBOURG

As introduced above, the situation in Strasbourg gained special attention when the number of applications before the Court reached several hundred and most of them needed a Rule 39 determination. In fact, most of the applicants before the European Court of Human Rights sought to have it applied to prevent them being sent back both to their country of origin and to Greece. Whilst applying interim measures on the basis of Rule 39 of the Rules of the Court has been a long established practice in situations where the country of destination was not a Party to the Convention, the situation becomes much more complex when the country of fi nal or even transit destination is a State Party to the Convention. Whereas the scope, application and eff ects of Rule 39 of the Rules of the Court are not the focus of our concern as such and have already been dealt with by the doctrine9, in the particular circumstances of removal from one Member State to another Member State to the Convention, an additional question before the Court further complicated the determination of a Rule 39 request. Th at question was that an application under Rule 39 could only be made once the applicant had been transferred from the fi rst to the second State Party. Indeed, the traditional jurisprudence of the Court, in relation to Rule 39 on interim measures in removal cases, has been applied principally to cases where the applicants were to be removed to a country outside the jurisdiction of the Convention and consequently of the Court. In cases like the ones overburdening the Court’s docket, the applicants requested not to be removed to Greece under Rule 39. Th ese requests were based on fears that Greece, although a State Party to the Convention and Member State of the EU, would not be able to ensure respect for the Rule 39 measure once the applicants were on its territory. Two reasons were given to support these allegations: the asylum procedures in Greece and the detention and living conditions of the asylum seekers while their asylum requests were being considered. Under the logic of the CEAS the presumption was that the rights of the applicants/ asylum seekers would be protected to the same degree once they were removed to the transit State – in this case Greece. It is interesting to recall that the Court has already had an opportunity to deal with this question, fi rst in relation to the Dublin

8 See in this perspective the early warnings of Dr. Christian Filzwieser in “Th e Dublin Regulation vs. the European Convention of Human Rights – A Non-Issue or a Precarious Legal Balancing Act?” 9 See among many others N. Vajić, “Interim measures and the Mamatkulov judgement of the European Court of Human Rights”, in Liber Amicorum Lucius Cafl isch, Martinus Nijhoff , 2007.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 27 Ledi Bianku

Convention10, in the case of T.I. v. UK and then in relation to the Dublin II Regulation, in the case of K.R.S. v. U.K. In both these cases, the general principles were rightly set out, and the principle of presumption of protection of human rights by the requested State continued to prevail. In T.I. v. U.K.11 the applicant, a Sri Lankan national, arrived in Germany where he claimed asylum unsuccessfully. Th en, through Italy, he arrived in the United Kingdom, where he submitted a new asylum claim. On the basis of the then Dublin Convention, the United Kingdom government refused to examine the substance of the applicant’s asylum request and asked Germany to accept responsibility for its examination. Th e British authorities considered that Germany was a safe third country and that the German authorities were under a legal obligation to look at any new material placed before them. Dismissing the application as inadmissible, the Court seized the opportunity of that case to clarify its position as to the application of the presumption of a Convention compliant attitude in the transit State and of the responsibility of the sending State in this regard. Th e Court stated:

“… Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fi elds of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the fi eld of activity covered by such attribution (see e.g. Waite and Kennedy v. Germany, judgment of 18 February 1999, Reports 1999, §67).”

Th e Court off ers a very interesting formulation in this regard by saying:

“His [applicant’s] removal to Germany is however one link in a possible chain of events which might result in his return to Sri Lanka where it is alleged that he would face the real risk of such treatment.

In K.R.S. v. the United Kingdom12, the applicant, an Iranian national, travelled through Greece to the United Kingdom where he claimed asylum. Finding out that the applicant entered EU borders through Greece, the Hellenic authorities were asked to accept responsibility regarding the applicant asylum claim. Despite the positive answer of the Hellenic authorities to take responsibility, the President of the Fourth

10 Full title “Th e Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities”, 15 June 1990. Especially see Articles 4 to 8. 11 Inadmissibility decision of 7 March 2000 (application no. 43844/98). 12 Inadmissibility decision on 2 December 2008 (application no. 32733/08).

28 Intersentia For Whom the Alarm Bells Ring?

Section apparently in view of the UNHCR recommendations in their report of 15 April 2008, decided to apply Rule 39 in the applicant’s case. At the end the Court declared the application inadmissible reiterating the principles formulated in T.I. v. U.K. in relation to the Dublin Regulation as well. Th e decision underlines that:

“Th e Court fi nds that this ruling must apply with equal force to the Dublin Regulation, created within the framework of the “third pillar” of the European Union. Returning an asylum seeker to another European Union Member State, Norway or Iceland according to the criteria set out in the Dublin Regulation, as is proposed in the present case, is the implementation of a legal obligation on the State in question which fl ows from its participation in the asylum regime created by that Regulation. Th e Court observes, though, that the asylum regime so created protects fundamental rights, as regards both the substantive guarantees off ered and the mechanisms controlling their observance.”

Th e reiteration of the applicable principles and the concerns expressed by several international organisations on the situation of asylum seekers in Greece were not suffi cient in that case to overturn the principle of the presumption that Greece would abide by the Convention standards and, as a consequence, the Court declared the application inadmissible. Noting that Greece is bound by the Dublin Regulation, by Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards for the reception of asylum seekers and that Greece has taken legislative measures regarding the asylum seekers the Court argued:

“… that Greece, as a Contracting State, has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defi ned therein, including those guaranteed by Article 3. In concrete terms, Greece is required to make the right of any returnee to lodge an application with this Court under Article 34 of the Convention (and request interim measures under Rule 39 of the Rules of Court) both practical and eff ective. In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees including the applicant. On that account, the applicant’s complaints under Articles 3 and 13 of the Convention arising out of his possible expulsion to Iran should be the subject of a Rule 39 application lodged with the Court against Greece following his return there, and not against the United Kingdom.”

Th us, the presumption that Greece, as a State Party to the Convention and EU Member State, would abide by its commitments prevailed again over the concerns that this presumption might not work in practice. Th e rapid deterioration of the situation on the ground, as assessed by the specialized international organizations and media, but as could also be deducted from the increasing number of new applications and the nature of the claims before the Court, the latter had to carefully consider the legal and practical issues linked to this question. Th is concrete possibility was off ered with the application 30696/09

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 29 Ledi Bianku in the case of M.S.S. v. Belgium and Greece.13 In view of the importance of the issue but also in order to clarify its position, the application was relinquished to the Grand Chamber by a Chamber of Section II of the Court.14 Th e applicant in this case is an Afghan national who left Kabul early in 2008 and, travelling via Iran and Turkey, entered the European Union through Greece, where his fi ngerprints were taken on 7 December 2008 in Mytilene. He was detained for a week and, when released, was issued with an order to leave the country. He did not apply for asylum in Greece. On 10 February 2009 the applicant arrived in Belgium, where he presented himself to the authorities with no identity documents and applied for asylum. Th e examination of the applicant’s fi ngerprints, on 10 February 2009, showed he was a “Eurodac Hit” who had entered the EU through Greece. Th e Belgian authorities asked the Greek authorities to take over the asylum application. As the Greek authorities failed to respond within the two-month period provided in the Dublin II Regulation15, the Belgian authorities considered this to be a tacit agreement and, on the basis of the Aliens Act, the Belgian Aliens Offi ce ordered the applicant to leave the country. Th ey claimed that, according to the Dublin II Regulation, Belgium was not responsible for examining the asylum application and there was no reason to suspect that the Greek authorities would fail to honour their obligations in asylum matters under EU law and the Geneva Convention on refugee status. Th e Belgian authorities argued that they were not obliged to apply the sovereignty or humanitarian clauses provided in the Regulation. Th e request for a stay of the removal order was dismissed on procedural grounds, and in June 2009 the applicant was removed to Greece, where he was again detained in appalling conditions for about 3 days and then released without any form of assistance. It is interesting to note in the M.S.S. v. Belgium and Greece case that initially the requests of the applicant’s lawyer for an interim measure, against Belgium for failure to stay the removal to Greece, in accordance with Rule 39 were dismissed by the Court.16 It seems the presumption that the Greek authorities would honour their commitments brought the Court to this conclusion, at least initially. In fact aft er the delay in the reply by the Hellenic authorities, the Court indicated a Rule 39 order against Greece not to expel the applicant until the determination of the merits of the case by the Court.17

13 For a complete analysis of this judgment See as well Gina Clayton “Asylum Seekers in Europe: M.S.S. v Belgium and Greece” in Human Rights Law Review 2011:4. 14 Decision of 10 March 2010. 15 Article 18 §1. 16 On 12 June 2009 the Court refused to apply Rule 39 but informed the Greek Government that its decision was based on its confi dence that Greece would honour its obligations under the Convention and comply with EU legislation on asylum. 17 When released from detention on 18 June 2009 the applicant was given an asylum applicant’s card (“pink card”). Having no means of subsistence, the applicant went to live in a park in central Athens together with other Afghan asylum seekers. Being informed on the applicant’s situation

30 Intersentia For Whom the Alarm Bells Ring?

Beside the issue of the responsibility of the requesting Member State in the case of a problematic removal under the Convention from the requested18 Member State towards a third non Convention country, a second issue, that of the receiving conditions of the asylum seekers and asylum procedures in diff erent countries of the Convention emerged much more palpably in this case. Of course the red thread in both these issues is the Common European Asylum System, its operation and the obligation of EU Member States under EU law on one side and under the Convention on the other. In these conditions the answer to the question “For whom the alarm bells ring” does not seem to be an easy one. It is interesting to note in the judgment that, although the claims of the applicant were directed fi rst against Belgium and then against Greece, the analysis of the Court deals fi rst with the situation in Greece and the claims against that State and then with the claims against Belgium.19 An a priori analysis of the responsibility of Belgium under Articles 3 and 13 of the Convention for a measure regularly taken under the Dublin II Regulation might not have enabled the Court to expose the problems relating to the transfer to Greece, if the conditions in that country were not taken into consideration in the fi rst place and in a due and careful manner. My impression is that this approach proved to be fundamental in better understanding the circumstances of the case, the responsibilities of both Belgium and Greece, and the impact the Dublin II Regulation operation might have in practice. Th is approach allowed the Court to better assess and understand the sequence in the case. Indeed, several elements appear to have been fundamental for the Court to have a clear picture of the functioning of the CEAS and the potential risks for the applicant under the Convention. Firstly, of course, it had to take into account the transit Member State, in this case Greece, and all the circumstances in that country, starting from the general situation, especially in view of the number of asylum seekers in Greece. Secondly, the allegations of the applicant in M.S.S., as most of the allegations in relation to Article 3, have to be considered against the general background of the detention and living conditions of other asylum seekers in that country. Th irdly, the accuracy and credibility of the asylum procedures in the transit State was a key element for the Court’s conclusion in M.S.S. v. Belgium and Greece, assessed in the light of the credibility of the safeguards off ered by the transit State in

the Court sent a second letter to the Greek authorities asking to confi rm his situation especially concerning two aspects: a) the applicant’s deportation; b) the means to be put at the applicant’s disposal for his subsistence. Th e Greek authorities did not reply within the deadline given by the Court. Th ereaft er Rule 39 was applied against Greece on 2 July 2009. 18 Id, see Articles 3, and 17 – 21. 19 See paragraph 204 of the judgment saying: “In the circumstances of the case the Court fi nds it appropriate to proceed by fi rst examining the applicant’s complaints against Greece and then his complaints against Belgium.”

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 31 Ledi Bianku general as well as in the particular case of the applicant. Fourthly, which is the fi nal destination State in case the asylum claim was to succeed. A contextual analysis of all these elements seems to have been decisive for the Strasbourg Court in reaching its decision in M.S.S. v. Belgium and Greece, that Greece, given the situation of massive fl ows it was facing and with all the asylum system defi ciencies it was experiencing, would not be able to secure the substantial and procedural rights of the applicant under Articles 3 and 13 of the Convention. In these conditions, I would single out two elements. First, it is obvious that the earlier jurisprudence of the Strasbourg Court on all these issues in relation to both Belgium and Greece, but also in relation to the situation in Afghanistan in expulsion cases to that country, was extremely important for the Court to reach its position. In several judgements this Court had found that the conditions in which asylum seekers were being kept in Greece,20 as well as the asylum procedures in Belgium were problematic under the Convention.21 Th e second element, I would single out as important for the judicial examination by the Strasbourg Court in the M.S.S. v. Belgium and Greece case, is the reference to the reports and data produced and drawn up by international organisations on the situation of asylum seekers in Greece and on the asylum procedures in Greece.22 Furthermore, the participation and the interventions at the hearing, for the fi rst time in the history of the Court, of the Council of Europe Commissioner for Human Rights and of the representative of the UNHCR Offi ce allowed the Court to have a much more comprehensive picture of the situation it was called upon to assess. As it is known, the Court did fi nd a violation in relation to all the allegations of the applicant in M.S.S., both against Belgium and against Greece. With its fi ndings in this judgment, the Strasbourg Court clarifi ed fi rst, that the presumption that the standards of the Convention regarding Article 3 and 13 and of the applicable EU Directives as to the reception conditions of asylum seekers would be respected, might not always work in practice. Th is leads to the conclusion that the automaticity principle enshrined in the Dublin II Regulation would have to be considered very carefully by the Member States. Th us, if the principle of the Dublin II Regulation – the automatic transfer – was applied without taking due account of the circumstances in the requested Member State, the implementation of the Dublin II Regulation in this regard would be in violation of the Convention. Put diff erently, the M.S.S. alarm

20 See the judgments of the ECtHR in S.D. v. Greece, no. 53541/07, 11 June 2009, Tabesh v. Greece, no. 8256/07, 26 November 2009, and A.A. v. Greece, no. 12186/08, §§57 to 65, 22 July 2010. 21 See for instance Čonka v. Belgium, no. 51564/99, ECHR 2002-I, but also Quraishi v. Belgium (application no. 6130/08, decision of 12 May 2009). 22 See paragraph 349 of the judgement saying that: Th e Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. Th e letter, which states that a copy was also being sent to the Aliens Offi ce, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above).

32 Intersentia For Whom the Alarm Bells Ring? bells case requires an adjustment of the application of the Dublin transfers in line with the requirements of the European Convention on Human Rights. Th e impact of M.S.S. could be highlighted fi rst of all from a more general perspective, both under general international law and under the Convention law – that States, when implementing their national or international obligations and policies, should have due regard to the context in which their actions are being taken and the eff ects, not only the immediate ones, vis-à-vis the European Convention for Human Rights.23 Whereas in previous cases, this has mainly taken the form of an obiter dictum, in M.S.S. v. Belgium and Greece, having regard to the circumstances of the case and the general situation in Greece, it took the form of a ratio decidendi. In the M.S.S. judgement, it seems that the ECHR gave a specifi c emphasis to the discretionary power of the Member States already provided for in Article 3 §2 of the Dublin II regulation, the sovereignty clause. It would otherwise have been more problematic to proceed with a Bosphorus analysis.24 Th en the ECtHR moved on to fi nd that the failure to exercise this discretion aff orded by EU law in a manner that would bring the Belgium authorities actions in conformity with the Convention constituted a violation of the latter. Given the existence of such discretion and of any prior control by the EU institutions and especially of the ECJ, it seems this was the most evident approach the ECtHR could take. Th e message the Strasbourg Court delivers in M.S.S. concerns both the procedures and conditions for applying and possibly obtaining asylum in a Dublin II Member State and the reception conditions of an asylum seeker in a particular Dublin II Member State. In relation to the fi rst aspect, interestingly the Court does not proceed with the traditional approach – assessing the risks in Afghanistan if the applicant were to be returned there in order to conclude whether there would be a violation

23 What in the T.I. v. U.K. inadmissibility decision was included as an obiter in saying that the action of the fi rst State might be “one link in a possible chain of events which might result” in the violation of other international obligations, has been already included in “Th e Articles on State Responsibility elaborated by the ILC” Article 16 of which entitled “Aid or assistance in the commission of an internationally wrongful act” says: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.” See also mutatis mutandis, §§53 of Stephens I v. Malta, in which the Court says in relation to European Arrest Warrant: “by reason of its omission or its having taken action which has e direct consequence on the individual found in another territory, a Contracting State may, in … particular circumstances, be held responsible for acts in breach of the Convention occurring outside its territory. Th e Requesting State ’s responsibility is without prejudice to the responsibility of the Requested State, whether under general international law, under the Convention or otherwise. Th us, any liability under the Convention is or may be incurred by both states in so far as they are both Contracting States.” 24 Th e well known judgement of the Grand Chamber of 30.06.2005 in the case of Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland (Application no. 45036/98).

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 33 Ledi Bianku of Article 3 of the Convention.25 For the Court, it seems suffi cient to establish that the Greek asylum procedures were not capable of securing the applicant a serious and individual consideration of his fears for not being returned to Afghanistan.26 Furthermore, in relation to Belgium, the Court concluded that the impossibility for the applicant to argue that his removal to Greece would expose him to a violation of his Convention rights under Article 3 and 13, because of the Belgian authorities’ presumption that Greece, as an EU Member State, would abide by these standards, constituted a violation of the applicant’s rights under Article 3 and 13 by Belgium. In relation to the second aspect – the conditions of reception – concerns were expressed already in the M.S.S. judgment.27 Two elements seem to have played a role for the Court in reaching this conclusion. Th e fi rst is the importance of the EU Directive on reception conditions which was transposed into Greek law28 and thus created a legal obligation for Greece.29 Although it does not appear in the judgement, another element seems to have infl uenced the Court in this regard. Th is is the intrinsic link between the reception conditions of the asylum seekers in Greece and the asylum procedures in this country. Were the asylum procedures swift er, regardless of their outcome, the number of asylum seekers awaiting a determination would not be the same, the possibilities to accommodate them would be more reasonable, and the time spent in such appalling conditions would be shorter30, thus possibly not crossing the threshold of Article 3 of the Convention.31

25 See the concurring opinion of Judge Villiger who seems to opt for the alternative reasoning. 26 In paragraph 298 of the judgement the Court says: “Th is does not mean that in the present case the Court must rule on whether there would be a violation of those provisions if the applicant were returned. It is in the fi rst place for the Greek authorities, who have responsibility for asylum matters, themselves to examine the applicant’s request and the documents produced by him and assess the risks to which he would be exposed in Afghanistan. Th e Court’s primary concern is whether eff ective guarantees exist in the present case to protect the applicant against arbitrary removal directly or indirectly back to his country of origin.” 27 See partly separate opinion of Judge Sajó to the M.S.S. judgement (pages 100–109) in relation to the fact whether the asylum seekers should be considered as a vulnerable group. 28 Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18) quoted also in footnote 5. See especially the references in paragraphs 84 and 343 of the M.S.S. judgment. 29 One might argue whether this meant that the Court shall adopt this as a standard for the purposes of article 3 of the Convention. Th e notion of human dignity inherent in the Directive (see especially considerandum 5–6) and in the Convention under Article 3 suggest that this might be the case (see especially Budina v. Russia, dec., no. 45603/05, ECHR 2009, O’Rourke v. UK, dec., ECHR 2001). See also paragraphs 7–9 of Lord Bingham opinion in the judgment of the House of Lords Regina v. Secretary of State for the Home Department (Appellant) ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent) (Conjoined Appeals) on 3 November 2005 [2005] UKHL 66. 30 For example on 19 August 2010 the Associated Press reported the hunger strike of 6 Iranian asylum seekers in Greece because they are waiting for the determination of their applications for asylum for 9 years. 31 See paragraph 9 of the Opinion of Lord Bingham cited above.

34 Intersentia For Whom the Alarm Bells Ring?

III. WHEN BELLS RANG IN LUXEMBOURG

While the Strasbourg Court was considering and ruling on M.S.S. v. Belgium and Greece, two requests for preliminary rulings under Article 267 TFEU were lodged with the ECJ on 18 August and 15 October 2010 by the Court of Appeal (Civil Division) of England and Wales and by the High Court of Ireland, in relation to cases with circumstances very similar to M.S.S. v. Belgium and Greece. Th e fi rst request32 concerned an Afghan national N.S. who, like M.S.S. entered the EU through Greece where he was detained for four days and then ordered to leave the territory. Th ereaft er, N.S. made his way to the U.K. where he submitted an asylum claim. Th e Secretary of State for Home Aff airs requested Greece to take responsibility for N.S. on the basis of Article 17 §2 of Dublin II Regulation. Aft er 2 months of silence from the Hellenic authorities, on the basis of Article 18 §7 of the Dublin II Regulation, it was considered that Greece had accepted to take responsibility for the asylum claim of N.S. and took measures to proceed with the removal of N.S. to Greece. N.S. requested a judicial review, alleging that the removal to Greece would put him in conditions contrary to his rights under the Convention. Aft er the refusal of the appeal by the High Court, the Court of Appeal of England and Wales decided to put seven preliminary questions to the ECJ. Th e second request33 stemmed from the case of fi ve applicants of Afghani, Iranian and Algerian origin, who in the same way as M.S.S. and N.S. had entered Greece, where they did not fi le an asylum request, and aft er being released from detention there, reached Ireland where they requested asylum. Th e Eurodac system confi rmed that all of them did enter through Greece and, on the basis of the Dublin II Regulation, that Greece should be responsible for their claims, but all of them resisted returning to Greece, because of the asylum procedures and the asylum seekers’ conditions there. Th e Irish High Court decided then to submit two questions for a preliminary ruling to the ECJ. Th e importance of the ruling for the CEAS was such that, at the hearing of 28 June 2011 in Luxembourg, 13 states and 4 international organisations34 acted as interveners before the ECJ. On 22 September 2011 the Advocate General Trstenjak delivered her Opinion in relation to these cases. From the outset of her Opinion she states:

“6. In answering the questions referred, regard must also be had to the judgment of the European Court of Human Rights in M.S.S. v. Belgium and Greece – which was delivered

32 Case C-411/10, N. S. v Secretary of State for the Home Department. 33 Case C-493/10, M. E., A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform. 34 Th e four international organisations were Amnesty International Ltd, the AIRE Centre (Advice on Individual Rights in Europe), United Nations High Commissioner for Refugees, and Equality and Human Rights Commission.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 35 Ledi Bianku

aft er the order for reference had been made – in which the European Court of Human Rights considered the transfer of an Afghan asylum seeker from Belgium to Greece to be a violation by Belgium of Article 3 and Article 13 of the ECHR.”

Th is statement was already a clear sign of the approach taken by the AG Trstenjak in the following paragraphs of her Opinion. Two conclusions are fundamental, to my mind, in the Opinion of the AG. First, the AG concludes that respect for fundamental rights under EU law might indeed require the use of this exception by Member States where there is a risk that the asylum seeker’s fundamental rights under EU law would be violated.35 Second it seems that the ECHR, as interpreted by the Strasbourg Court, infl uences the operation and interpretation of the presumption of the compliance by the requested State with the EU fundamental rights. Paragraph 141 of the Opinion is noteworthy in this regard:

“In the light of this development in the European Court of Human Rights’ case-law, it would appear that the referring court is no longer required primarily to address the question under what circumstances the transfer of asylum seekers to Greece could, despite the European Court of Human Rights’ decision in K.R.S. v. United Kingdom, lead to a fi nding of a violation of that asylum seeker’s rights as enshrined in the Charter of Fundamental Rights, but rather the question whether, having regard to the European Court of Human Rights’ judgment in M.S.S. v. Belgium and Greece, a transfer of asylum seekers to Greece can actually still be found to be compatible with the Charter.”

Does this sentence mean that the fi nding of a violation against a Member State in Strasbourg simply reverses the quality of the presumption? It would be diffi cult, as I read it, to say no. Indeed, the following paragraphs, 142 – 148 of AG Trstenjak’s Opinion support this view. Th e much awaited judgment of the ECJ in relation to these cases was delivered on 21 December 201136, exactly eleven months aft er M.S.S. v. Belgium and Greece. Th e Court confi rms not only that recourse to the exception provided for in Article 3 §2 of the Dublin II Regulation shall be considered as an action in the context of implementation of EU law but also that the conclusive presumption that the requested Member State will respect the asylum seeker’s fundamental rights is incompatible with the duty to interpret

35 See especially paragraphs 130 – 132 of the Opinion of AG Trstenjak of 22.09.2011 in reply to the second and third question referred by the Court of Appeal of England and Wales. 36 Judgment of the Grand Chamber in the In Joined Cases C-411/10 and C-493/10, N. S. (C-411/10) v Secretary of State for the Home Department and M. E. (C-493/10), A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, on references for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom) and the High Court (Ireland), by decisions of 12 July and 11 October 2010, lodged at the Court on 18 August and 15 October 2010.

36 Intersentia For Whom the Alarm Bells Ring? the provisions of secondary EU law in a manner compatible with EU fundamental rights.37 Th e ECJ makes clear that although the philosophy of the CEAS is that:

“…it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR”38 and continues:

“It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights.”39

Th e conclusion of the ECJ is to be found in paragraphs 105–108 of the judgement where the Court affi rms that EU law precludes the application of a conclusive presumption that a Member State possibly responsible under Article 3 §1 of the Dublin II Regulation abides by EU fundamental rights, and that in these circumstances other Member States shall not remove the asylum seekers to the fi rst State but must use the sovereignty clause under Article 3 §2 of the Dublin II Regulation. In relation to the second point, namely the infl uence of the ECHR as interpreted by the Strasbourg Court, the position of the ECJ seems to be slightly less straightforward than the position of the AG. Th e ECJ confi rms the value of the M.S.S. v. Belgium and Greece judgment of the Strasbourg Court and seems to adopt its reasoning. In the same way as the Strasbourg Court, the ECJ makes clear that where the Member States cannot be unaware of the systemic defi ciencies in the asylum procedure and reception conditions of the fi rst responsible Member State, their authorities may not transfer an asylum seeker to that State.40 But the ECJ does not seem to use such unadorned terms as the AG, that aft er the fi nding of a violation in Strasbourg, as in the M.S.S.

37 In paragraph 77 of the judgment ECJ states that: “According to settled case-law, the Member States must not only interpret their national law in a manner consistent with European Union law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in confl ict with the fundamental rights protected by the European Union legal order or with the other general principles of European Union law (see, to that eff ect, Case C-101/01 Lindqvist [2003] ECR I-12971, paragraph 87, and Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I-5305, paragraph 28).” And then on paragraph 99 ECJ concludes: “It follows from all of the foregoing considerations that, as stated by the Advocate General in paragraph 131 of her Opinion, an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights.” 38 Paragraph 80 of the ECJ judgment. 39 Paragraph 81 of the ECJ judgment. 40 See paragraph 94 of the ECJ judgment. Compare with the ECtHR judgment in M.S.S. v. Belgium and Greece when the responsibility of Belgium is considered, especially paragraphs 347–359 in

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 37 Ledi Bianku v. Belgium and Greece case, a removal to Greece is automatically incompatible with the Charter. Th e ECJ prefers to conclude in a more autonomous way, still taking into account the factual assessment made in Strasbourg, that Member States cannot remove asylum seekers to other Member States where they cannot be unaware of the situation of asylum seekers there. Whereas the Strasbourg Court fi nds Belgium responsible owing to the discretion that the Belgian authorities have on the basis of Article 3 §2 of Dublin II Regulation, thus avoiding a Bosphorus type analysis in this case41, the Luxembourg Court replies to the preliminary questions before it on the basis of fundamental rights of the EU. Th us, in a way, the frame is completed at European level: an asylum seeker cannot be removed under the Convention and EU law to a Member State where it is known that the asylum procedures and reception conditions do not comply with the requirements set by both these systems.

IV. AS A CONCLUSION – FOR WHOM DO THE BELLS RING NOW?

Th e 2011 developments in both Courts in Europe have contributed, to a remarkable extent, to the understanding of what is meant by safe State for the purposes of removal of asylum seekers. In this regard, the presumption that a Member State is safe is rebuttable. One might even go further and ask whether it could be sustained that in a legal system governed by the rule of law there exist any non rebuttable presumption especially when fundamental rights are at stake? Th ree questions can still be asked as to the future functioning of the Dublin system in a way that is compatible with Convention rights and EU fundamental rights. Th e fi rst question that could be asked relates to the subjects responsible for examining whether the presumption of compliance of the requested Member State with fundamental freedoms is rebuttable or not. Th is question stems from the Partly Dissenting Opinion of Judge Bratza in the M.S.S. judgment42 as well as from the second question of the Court of Appeal (England & Wales) and the fi rst question of the Irish High Court to the ECJ, in relation to Case C-411/10 and Case C-493/1043 respectively. Th e point is whether a violation must be found fi rst in Strasbourg or in Luxembourg in order for Member States and then other EU institutions to adapt their

relation to the asylum procedures in Greece and 366–367 in relation to the reception conditions in Greece. 41 See paragraphs 338–340 of the M.S.S. judgment. 42 See pages 110 and following at the M.S.S. v. Belgium and Greece. 43 Find the questions as asked by the respective national courts in paragraphs 50/2 and 53/1 of the ECJ judgment and summarised by the ECJ in paragraph 70 as follows: “the referring courts ask, in essence, whether the Member State which should transfer the asylum seeker to the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible is obliged to assess the compliance, by that Member State, with the fundamental rights of the European Union, Directives 2003/9, 2004/83 and 2005/85 and with Regulation No 343/2003.”

38 Intersentia For Whom the Alarm Bells Ring? approach and to start applying the sovereignty clause under the Dublin II Regulation? If at a given time, any of the two European Courts gives clearance as to the situation in a given country in terms of asylum procedures and/or conditions, i.e. similar to a post-K.R.S. and pre-M.S.S. situation, should the Member States still continue to consider the presumption of compliance as rebuttable? Or to put it otherwise, shall the fi nding of a violation of Article 3 in the M.S.S. judgement in relation to Belgium by the Strasbourg Court and the response of the ECJ in its N.S. judgement that the presumption of compatibility of Member States is rebuttable be applied only to the situation in Greece or much more widely? Does this interpretation have a temporary character, i.e. only for as long as the situation in Greece remains, or is this principle applicable also when it is certain that all Member States do comply with Articles 3 and 13 of the Convention and with EU fundamental rights. Th us, the question is whether the scrutiny at national level will always be required aft er these two judgements or only when there is abundant information indicating that the situation of the asylum seekers in a given country is problematic? I accept that the answer can be found in the judgements of both Courts. Both the European Court of Human Rights and the European Court of Justice accept that, where the domestic procedures do not allow for the possibility of rebutting of the presumption of compliance, there would be a violation of the Convention and of the EU fundamental rights. In Strasbourg, the answer is quite clear, the asylum procedures in Belgium, in the case of Dublin transfers, did not allow the applicant to argue that his removal to Greece would violate the Convention.44 Th e Luxembourg Court holds a similar position.45 In my opinion, this approach is compatible with the principle of subsidiarity, inherent in the Convention and EU legal systems. But, if the national authorities of the requesting State remain responsible under the rebuttable presumption principle to continuously and carefully assess every asylum claim even when they are not the primarily responsible State under the Dublin II Regulation, and independently from any decision or judgment at European level46, what would then be the fate of the Dublin II Regulation and, more generally, of the CEAS logic? Does the principle of the

44 See paragraph 359 of the M.S.S. judgment concerning the risk faced in Greece because of the asylum procedures there and paragraph 366 because of the reception conditions. See also, and more importantly, the assessment of the Court in relation to the violation of Article 13 taken together with Article 3 by Belgium (paragraphs 385–397 of the judgment). 45 See paragraphs 98 and 101–103 of the ECJ judgment where procedural criteria such as length and possibility to submit evidence as mentioned and Article 36 of Directive 2005/85 is referred to. 46 See for example the argument used by the Belgian Government in Strasbourg that the Strasbourg Court did not apply itself a Rule 39 measure in the case of M.S.S (§355 of the judgment). Th is logic, together with the one that the States were following Strasbourg approach in K.R.S. was also supported by the third intervening States in M.S.S., Th e Netherlands and the U.K. See also the UK Government argument before the ECJ in the N.S. and others case when it was argued that an obligation to exercise the right to assume responsibility for the examination may arise only under extraordinary circumstances, namely where the presumption that the responsible Member State will act in accordance with humans rights and EU law vis-à-vis a certain category of asylum seekers has been clearly rebutted and the asylum seeker comes under that category.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 39 Ledi Bianku rebuttable presumption mean that the automatic nature of transfers of asylum seekers to the State primarily responsible is null and void? For whom does the bell ring? Th e second question relates to the substance of the analysis at national or at European level. Reading paragraph 82 of the ECJ judgment, one might ask what would be the nature of violations of fundamental rights by a Member State that would not be such as to aff ect the obligations of Member States under the Dublin II Regulation.47 In subsequent paragraphs of the judgment, using the same logic as the Strasbourg Court in M.S.S. v. Belgium and Greece, the ECJ makes clear that the mere ratifi cation of the 1951 Geneva Convention and of the European Convention on Human Rights does not suffi ce for a country to be considered “safe” and refers in this regard to Article 36 of the Directive 2005/85, and this, according to the ECJ, applies both to Member States and third countries.48 But still the question remains whether all violations of the European Convention on Human Rights have the same consequences in this regard? And how should paragraphs 79 and 83–85 of the ECJ judgment referring to the raison d’être of the EU, of the area of freedom, security and justice and of the CEAS be understood in this regard? Paragraph 86 seems to provide the answer by stating:

“…if there are substantial grounds for believing that there are systemic fl aws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.”

Th e third question which helps to answer the previous two pertains to the sources of information which would make the national and supranational actors aware of any systemic shortcoming in the asylum systems of any of the Member States. Who is responsible for providing such information in a continuous and credible way? Regarding the assessment of the situation in Greece and the reliability of the presumption of safe country notion in that case, although both Courts make reference to the work and functioning of the EU institutions49, the reference to

47 Th e ECJ asserts in paragraph 84 of the that: “Nevertheless, it cannot be concluded from the above that any infringement of a fundamental right by the Member State responsible will aff ect the obligations of the other Member States to comply with the provisions of Regulation No 343/2003.” 48 See paragraphs 102–103 of the ECJ judgment. Compare with paragraph 353 of the M.S.S. judgement where the Strasbourg Court says: “the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves suffi cient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, §147, ECHR 2008-…).” 49 See paragraph 350 of the M.S.S. judgment of the Strasbourg Court referring to the reform the Dublin system was undergoing and to the Commission’s proposals in this regard, as well as

40 Intersentia For Whom the Alarm Bells Ring? the other sources seems to carry critical weight.50 First in Strasbourg and then in Luxembourg, the information and interventions provided by international organisations, especially the UNHCR and other specialised organisations and NGOs, seem indeed to have played an important role. Th e question is whether, in the absence of such information, the Member States and then the European Courts would be in a position to properly assess the situation in the fi eld? Are the bells ringing for the Member States or the European Commission or other services at EU level that should closely follow developments of the situation in the fi eld and alert the Member States to the Dublin II Regulation accordingly? What relations should be established with specialised agencies operating in the fi eld and what forms of procedural access should be off ered to them? What procedural safeguards should be aff orded to the individual applicants as well? Th e principle, established by both European Courts in the M.S.S. and N.S. leading judgements respectively, that the presumption of compliance by Member States with the Convention and EU fundamental rights standards is rebuttable, creates the basic preconditions for the CEAS to operate in a manner compatible with these standards. Th e bells will continue to ring for all national and international bodies that must remain aware of the problems that might exist in practice. Th e primary purpose of the Common European Asylum System is to establish common asylum standards and, without common responsibility, eff orts and solidarity, this will be diffi cult to achieve.51

paragraph 92 of the N.S. judgment of the Luxembourg Court regarding the meetings of the Council of the European Union (JHA especially) where all Member States are present and accordingly should be aware of the developments in fi eld. 50 In paragraph 349 of the M.S.S. judgement the Strasbourg Court says: “Th e Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. Th e letter, which states that a copy was also being sent to the Aliens Offi ce, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above).” 51 For a step in this direction see: “Discussion paper – Informal Justice and Home Aff airs Ministers’ Meeting, Copenhagen, 26–27 January 2012, “A common framework for genuine and practical solidarity towards Member States facing particular pressures due to mixed migration fl ows”. See also the concerns expressed lastly by the UNHCR High Commissioner Antonio Guterrez in his intervention at the EPC: “Today’s displacement challenges – Asylum and migration in Europe, one year aft er the ‘Arab Spring’“, 20 March 2012.”

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 41 THE RIGHT TO LEGAL ASSISTANCE FREE OF CHARGE IN THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Panayotis Voyatzis*

I. INTRODUCTORY REMARKS

Th e regulation of the right to legal aid appears to be a rather complicated issue, especially when implemented by an international jurisdiction, such as that of the European Court of Human Rights (“ECtHR” or “the Court”). Th e main reason is that the award of legal aid in the course of criminal or civil proceedings imposes a fi nancial burden on each Contracting state that an international court cannot ignore when assessing a relevant issue. Cases involving the award of legal aid cannot be solely decided on legal premises. Both legal and fi nancial questions come into play in order to defi ne the conditions under which the right to free legal assistance should be granted.1 Th ese questions pertain to a variety of moral, political and social- justice bases from which the responsibility of states to provide free legal assistance to indigent litigants may derive. In fact, the guarantee of legal aid is undoubtedly an element of the notion of fair trial, the latter being at the same time closely intertwined

* Legal secretary, Registry of the European Court of Human Rights. Views expressed in this article are strictly personal. 1 J. Flood & A. Whyte observe that “legal aid has always had a troubled history. Th ose intimately involved with it have deeply ambivalent attitudes towards law and justice for the poor”. (“What’s wrong with legal aid? Lessons from outside the UK”, Civil Justice Quarterly, 2006, 25 (Jan), 80–98, 80. In the seminal case Airey v. Ireland (9 October 1979, Series A no. 32) the Court pertinently grasped the fi nancial aspect of the right to free legal assistance in the context of civil proceedings as an illustration of the constant interplay between civil and socioeconomic rights: “Th e Court is aware that the further realisation of social and economic rights is largely dependent on the situation – notably fi nancial – reigning in the State in question. On the other hand, the Convention must be interpreted in the light of present-day conditions (…) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals (…). Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. Th e Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the fi eld covered by the Convention.” (Airey, §26).

42 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights with the provision of welfare services by the State. Th is fact probably explains the signifi cant variation of the provisions regarding eligibility for legal aid, in particular insofar as civil proceedings are concerned, between Council of Europe member states. Multiple tests may be applied by the states, based on the applicant’s fi nancial means, the prospect of the judicial remedy’s success or both.2 In the context of the European Convention on Human Rights (“the Convention”), the Court does not overlook this binary nature of free legal assistance, as a procedural safeguard and a social welfare right. On the one hand, it acknowledges the importance of access to a lawyer in all stages of criminal proceedings.3 In this respect, it has been held that a lawyer may function as a “watchdog of procedural regularity” in the interest of both the public good and his client.4 On the other hand, the Court has repeatedly stressed that, in the course of criminal proceedings, “the decision to allow an accused to defend himself or herself in person or to assign him or her a lawyer does still fall within the margin of appreciation of the Contracting States, which are better placed than the Court to choose the appropriate means by which to enable their judicial system to guarantee the rights of the defence”.5 In fact, the Court has ruled that the Convention does not specify the manner of exercising the right to defend oneself in person or through legal assistance. It is up to the member states to decide on the means of ensuring eff ective legal assistance in their judicial systems. In this respect, the Court has noted that its task is only to ascertain whether the method the impugned states have chosen is consistent with the requirements of a fair trial.6 In the following lines we briefl y introduce some refl ections on the ways the right to legal aid is implemented by the Court in criminal and civil proceedings. While this right is explicitly granted only with regard to criminal proceedings, the Court has also developed through its case-law the provision of legal assistance, under specifi c circumstances, in order to ensure a fair hearing in the context of civil proceedings. Th is paper shows that, despite the aforementioned diff erence in enunciating the

2 J. Flood & A. Whyte, supra, p. 86. Th e authors state that “(…) at the supportive end of the spectrum some jurisdictions apply income tests, excluding assets, e.g. France, Greece and Italy. Others take both income and capital into account when determining eligibility, e.g. (…) Eire, and Sweden. In addition, the applicant’s motives may be taken into account in deciding whether to award legal aid, e.g. Germany will exclude applicants if they are found to be acting ‘spitefully’.” 3 See ECtHR, John Murray v. the United Kingdom, 8 February 1996, §66, Reports of Judgments and Decisions 1996-I. 4 ECtHR, Ensslin, Baader and Raspe v. FRG, nos 7572/76, 7586/76 and 7587/76, 14 DR 64 at 114 (1978). 5 ECtHR, Correia de Matos v. Portugal (dec.), no. 48188/99, ECHR 2001-XII. 6 See ECtHR, Quaranta v. Switzerland, 24 May 1991, §30, Series A no. 205, and Sakhnovskiy v. Russia [GC], no. 21272/03, §95, 2 November 2010. See also Salduz v. Turkey [GC], no. 36391/02, §51, 27 November 2008, ECHR 2008. Moreover, as regards “civil rights”, see Ashingdane v. the United Kingdom, 28 May 1985, §57, Series A no. 93: “the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals.”

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 43 Panayotis Voyatzis right, the Court has set comparable criteria in order to examine the applicant’s eligibility for legal aid both in criminal and in civil proceedings. Lastly, the current negative climate in European fi nancial and economic aff airs allows us to make some concluding comments on new ways of eff ective participation in justice that could enhance the right to free legal assistance.

II. FREE LEGAL ASSISTANCE IN CRIMINAL CASES

As regards criminal proceedings, Article 6 §3 (c) of the Convention provides that everyone charged with a criminal off ence has the right to defend himself in person or through legal assistance of his own choosing or, if he has not suffi cient means to pay for legal assistance, to be given it free when the interests of justice so require. Th is guarantee is an off spring of the general principle of equality of arms. In the context of criminal proceedings the applicant should be placed in a position to defend his case “in such a way that he is not at disadvantage vis-à-vis the prosecution”.7 It is true that the requirement of equality of arms, in the sense of striking a “fair balance” between the parties, applies in principle to both criminal and civil cases. Nonetheless, the Court allows less latitude for deviations from that requirement in criminal cases.8 Since the Convention’s goal is to protect not theoretical but practical and eff ective rights9, it is essential to the notion of fair trial that a litigant is aff orded the opportunity to defend his case eff ectively before the court, namely to enjoy equality of arms towards his opponent.

A. FREE LEGAL ASSISTANCE OF HIS OWN CHOOSING?

Early on the Court dealt with the question whether the right of choice contained in the fi rst part of Article 6 §3 (c) of the Convention extends to those who do not have suffi cient means to aff ord legal assistance. In Pakelli v. Germany10, the Court underlined the diff erence in the wording of Article 6 §3 (c) in the English and French texts before considering that the term “legal assistance” in the second part of Article 6 §3 (c) means legal assistance “of his own choosing”11:

7 X v FRG, no. 10098/82, 8 EHRR 225 (1984). 8 See ECtHR, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§32–33, Series A no. 274. 9 ECtHR, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §121, 4 February 2005, ECHR 2005-I; Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, §180, 26 July 2011; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §175, 23 February 2012. 10 ECtHR, Pakelli v. Germany, 25 April 1983, Series A no. 64. 11 See J.-A. Epp & D. O’Brien, “Defending the right to choose: legally aided defendants and choice of legal representative”, European Human Rights Law review 2001, 4, pp. 409–420, 413.

44 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights

“To link the corresponding phrases together, the English text employs on each occasion the disjunctive ‘or’; the French text, on the other hand, utilises the equivalent –’ou’- only between the phrases enouncing the fi rst and the second right; thereaft er, it uses the conjunctive ‘et’. In the Court’s view, having regard to the object and purpose of the paragraph, which is designed to ensure eff ective protection of the rights of the defence, the French text is to be preferred as more reliable”.12

It has been stressed that the Court’s position in Pakelli challenged a legal culture according to which it is traditionally the function of the court to provide counselling to those charged with criminal off ences as long as the defendant’s inability to pay deprives him of the possibility to choose his legal assistance.13 Nonetheless, in its subsequent case-law the Court nuanced the principle formulated in Pakelli by stressing that, while the choice of counsel is ultimately for the state, the wishes of the defendant must not be ignored by judicial authorities.14 Th us, in Croissant v. Germany15 it held that the applicant’s right to be defended by a counsel of his own choosing was not absolute and could be subject to limitations when the interests of justice required so:

“(…) notwithstanding the importance of a relationship of confi dence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes; (…) However, they can override those wishes when there are relevant and suffi cient grounds for holding that this is necessary in the interests of justice.”16

Article 6§3 (c) lays down explicitly the conditions which must be satisfi ed so as to grant a criminal defendant the right to free legal assistance. Th ese criteria are twofold: Firstly, the defendant must lack “suffi cient means to pay for legal assistance”. Secondly, the “interests of justice” must require it.

12 Pakelli, cited above, §31. 13 J.-A. Epp & D. O’Brien, supra note 11, p. 414. Th e authors refer, among others, to the United States of America. Th e 6th Amendment of the American Constitution provides that: “In all criminal prosecutions, the accused shall have the assistance of Counsel for his defence”. While the Supreme Court has ruled that the aforementioned provision encompasses the right to choice of legal assistance, it has nevertheless nuanced its scope in the case of indigent applicants. In particular, in Morris v. Slappy it considered that “the essential aim of the Amendment is to guarantee an eff ective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers” (461 U.S. 1 (1983). 14 D.J. Harris, M. O’Boyle & C. Warbrick, Law of the European Convention on Human Rights, Oxford University Press, Second edition, 2009, p. 319. 15 ECtHR, Croissant v. Germany, n° 13611/88, 25 September 1992, A237-B. 16 Croissant, cited above, §29. See also the more recent judgment Lagerblom v. Sweden, no. 26891/95, §54, 14 January 2003.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 45 Panayotis Voyatzis

B. THE DEFENDANT’S FINANCIAL SITUATION

As regards the defendant’s fi nancial situation, no defi nition of the term “suffi cient means” can be found in the case-law. Th e Court will take into account the particular circumstances of each case when assessing whether the applicant’s lack of fi nancial resources justifi es the granting of free legal assistance. While the applicant bears the burden of proving his indigence17, the Court does not require the establishment of lack of suffi cient means beyond all doubt. Th us, in Pakelli the Court relied on “some indications” that the applicant lacked the means to pay his lawyer.18 In particular, it stated that he had spent two years in custody in the Federal Republic of Germany before returning to Turkey while the appeal on points of law was still pending before the German courts. Moreover, the applicant had submitted a statement of means and certifi cates from the competent Turkish authorities which were based on the declaration of assets and income he had made for tax purposes. As the Court held, it derived from these documents that the applicant was engaged in business on a small scale and that his fi nancial situation was modest.19 A particular issue that the Court has occasionally come across pertains to the compatibility with Article 6 §3 (c) of the obligation imposed by the State upon the applicant to reimburse the fees paid to the appointed counsel aft er the end of the proceedings. Th is question is crucial when examined in the context of a procedural right, which functions as a gateway allowing the applicant to vindicate before the domestic courts substantive rights guaranteed by the Convention. As it has been argued, “the possibility that an accused might have to repay the cost of legal aid could (…) cause him to defend himself in person rather than apply for legal aid in a case which legal representation would be in the interests of a fair trial and hence of the object and purpose of the Convention”.20 In other words, the potential retroactive reimbursement to the state of the incurred cost of legal aid may have a “chilling eff ect” on the complainant’s intention to seek free legal assistance and therefore to undermine his procedural rights in cases where his personal liberty is at stake. In Luedicke, Belkacem and Koç v. Germany21, the Court left open the question whether Article 6 §3 (c) does prohibit the State to require the accused to reimburse the fees of their court-appointed counsel if they were fi nally convicted. Th is position was confi rmed in Croissant v. Germany, where the Court left open the question whether the above mentioned practice was compatible with Article 6 §3 (c). In the Court’s

17 D.J. Harris, M. O’Boyle & C. Warbrick, supra note 14, p. 317. See, in this respect, ECtHR, Ognyan Asenov v. Bulgaria, no. 38157/04, §47, 17 February 2011: “(…) it is not contrary to the Convention that the burden of proving a lack of suffi cient means should be borne by the person who pleads it.” 18 Pakelli, cited above, §34. 19 Ibid. 20 D.J. Harris, M. O’Boyle & C. Warbrick, supra, p. 317. 21 ECtHR, Luedicke, Belkacem and Koç v. Germany, 28 November 1978, Series A no. 29.

46 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights view, such a system would not be compatible with Article 6 if it adversely aff ected the fairness of the proceedings.22 Nonetheless, in the context of this particular case it was established that the German authorities had the standard practice of remitting the greater part of the costs where they were high.23 In a more recent case, the Court again took the view that the possibility that an accused might be obliged to repay the cost of legal aid at the end of the proceedings is not in principle contrary to Article 6 §3 (c) of the Convention. It then went on to examine whether the question of costs did adversely aff ect the fairness of the criminal proceedings against him.24 Th e Court found no violation of Article 6 §§1 and 3 (c) of the Convention. It observed that there was no indication that the possibility of being ordered to bear the costs of his defence in the event of his conviction inhibited the applicant from asking the trial court to appoint counsel for him. In particular, the Court stressed that, irrespective of whether the applicant had suffi cient means during the proceedings, he had benefi ted from a proper defence appointed by the domestic court. As to the question whether it was compatible with Article 6 §3 (c) for the State to seek reimbursement of the fees paid to the counsel appointed for the applicant aft er the end of the proceedings, the Court underlined that there was no indication that the authorities had taken any steps to enforce the court order requiring the applicant to pay the costs of the criminal proceedings against him, including the fees of his court-appointed counsel. Furthermore, the Court observed that it lacked an adequate basis on which to conclude that throughout that time the applicant remained unable to reimburse the relatively modest fees of his counsel, because the former had not produced evidence which could give a full picture of his overall fi nancial situation (assets, liabilities and income), at the time when the costs order against him became fi nal or aft erwards.25

22 See also on this issue, ECtHR, P.W. v. Denmark (dec.), no. 38986/97, 15 June 1999; Schrieder v. Denmark (dec.), no. 32085/96, 6 April 2000, and Dmitrijevs v. Latvia (dec.), no. 62390/00, 7 November 2002. 23 Croissant, cited above, §§35–37. Earlier on, the former Commission had found that such a situation was not incompatible with Article 6 §3 (c), unless the defendant’s means were insuffi cient. It reasoned that the existence of a qualifying condition in that provision implied that the term “free” in this context was not incompatible with a mere temporary exemption from costs, operating only as long as the accused did not have suffi cient means to pay them. Th e phrase “has not suffi cient means to pay” did not, in the Commission’s view, refer solely to the moment when the authorities decide whether to provide free legal assistance, but was relevant also at the time when it is being decided whether and to what extent the convicted individual has to pay the costs of the proceedings (see X. v. Germany, no. 9365/81, Commission decision of 6 May 1982, Decisions and Reports (DR) 28, p. 229; P. v. Switzerland, no. 9419/81, Commission decision of 4 July 1983, DR 33, p. 156; and K. v. Germany, no. 11626/86, Commission decision of 6 May 1986, unreported). 24 ECtHR, Ognyan Asenov v. Bulgaria, no. 38157/04, §44, 17 February 2011. 25 Ibid., §§44–48.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 47 Panayotis Voyatzis

C. THE INTERESTS OF JUSTICE

Th e second condition, namely the “interests of justice” aims at guaranteeing that the applicant will not be entitled to free legal aid in all cases of impecuniosity. As the payment of legal fees imposes a substantial fi nancial burden on the State, it is reasonable to impose this obligation on the latter only when the public interest in the proper administration of justice requires an appropriate representation of the defendant. Th roughout its case-law the Court has developed several sub-criteria for determining whether the interests of justice require in a given case that the applicants be granted legal aid before the domestic courts. Th ese are the seriousness of the off ence, the severity of the possible sentence, the complexity of the case and the personal circumstances of the defendant.26 As to the seriousness of the off ence and the severity of the possible sentence, the Court has repeatedly emphasized that when the applicants face a risk of being deprived of their liberty, the interests of justice will normally require the granting of legal aid.27 In contrast, when the case before the competent domestic courts concerns the imposition of tax surcharges and, thus, the applicant’s personal liberty is not at stake, in principle the Court will not consider that the sub-criteria of “seriousness and severity” are fulfi lled.28 According to the “complexity” sub-criterion, the more complex factual or legal issues a case raises, the more likely it is that the granting of free legal aid will be

26 See ECtHR, Quaranta v. Switzerland, 24 May 1991, §§32–36, Series A no. 205. Th e Court will judge whether the interests of justice call for the granting of legal aid by considering the facts of the case as a whole. Moreover, circumstances that materialize aft er the competent authority had taken its decision in this regard may be relevant for the Court. Th us, in Granger v. the United Kingdom (28 March 1990, §§44 and 47, Series A no. 174), the Government alleged that legal aid was not required to be granted, because there was no reasonable prospect of success of the applicant’s appeal. Th e Court replied that the question as to whether the interests of justice required the granting of legal aid must be assessed in the light of the case as a whole, which included circumstances relevant to the time the appeal was heard (see H. Murray & M.-J. Beloff, “Th e Green Paper on legal aid and international human rights law”, European Human Rights Law Review, 1996, 1, pp. 5–17, 9). Furthermore, it is noteworthy that when examining a case under Article 6 §3 (c), the Court does not require that the denial of legal aid has caused actual prejudice to the accused. Th e Strasbourg court examines whether, in the particular circumstances of each case, the granting of legal aid would provide better assistance to the defendant (see Artico v. Italy, n° 6694/74, §35, 13 May 1980). 27 ECtHR, Benham v. the United Kingdom, 10 June 1996, Reports of Judgments and Decisions 1996-III, §61, and Padalov v. Bulgaria, no. 54784/00, §43, 10 August 2006. 28 See ECtHR, Barsom and Varli v. Sweden (dec.), nos 40766/06 and 40831/06, 4 January 2008. Th e case involved the imposition of tax surcharges of rather signifi cant amounts on the two applicants (EUR 11,500 and around EUR 15,600 respectively). Nonetheless, the Court observed that the applicants never faced a risk of being deprived of their liberty and that they were able to pay these sums to the Tax Authority. See also, in this respect, ECtHR, Gutfreund v. France, no. 45681/99, §39, ECHR 2003-VII. In contrast, in Pham Hoang v. France (25 September 1992, §40, Series A no. 243), the Court acknowledged that “the proceedings were clearly fraught with consequences for the applicant, who had been acquitted at fi rst instance but found guilty on appeal of unlawfully importing prohibited goods and sentenced to pay large sums to the customs authorities.”

48 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights deemed necessary. Th at was the case, for example, when the applicant aimed at persuading the Court of Cassation to depart from its established case-law in the fi eld under consideration.29 In addition, when a wide range of measures is available to the criminal court, the participation of a lawyer in the proceedings has been considered to create the best conditions for the accused’s defence.30 On the contrary, in a case related to the imposition of tax surcharges the Court pinpointed that the contentious issues before the national courts primarily concerned the assessment of the evidence and that no complex legal questions were to be argued. Furthermore, the assessment relating to the tax surcharges was relatively straightforward in that the issue to be determined was fi rstly whether the applicants had submitted incorrect or incomplete information in their tax returns to the Tax Authority and, in the affi rmative, whether there were any grounds for remission.31 Th e last criterion, namely the applicant’s personal circumstances, involves the Court’s assessment on the capacity of the accused to defend the case himself.32 It is clear that this condition is closely linked to the complexity criterion: the more complicated the issues to be examined by the domestic courts, the more substantial the contribution of the accused should be when defending the case himself. Consequently, when applying this criterion, the Court will take into account the applicant’s personality, education and social background and assess them with regard to the diffi culty of the case at hand. In this vein, in Quaranta the Court acknowledged that the questions raised in this case “which [were] complicated in themselves, were even more so for [the applicant] on account of his personal situation: a young adult of foreign origin from an underprivileged background, he had no real occupational training and had a long criminal record. He had taken drugs since 1975, almost daily since 1983, and, at the material time, was living with his family on social security benefi t”.33 In Pham Hoang, having stated that the contentious issues were complex, the Court underscored that the applicant lacked “the legal training essential to enable him to present and develop the appropriate arguments on such complex issues himself”.34 On the contrary, in Barsom and Varli, the Court noted that both applicants had been living in Sweden for almost thirty years and were businessmen who owned and were in charge of running a restaurant. In these circumstances, the Court found

29 Pham Hoang, cited above, §40. 30 Quaranta, cited above, §34. Th e competent criminal court had both to rule on the possibility of activating the suspended sentence and to decide on a new sentence. 31 Barsom and Varli, cited above. 32 D.J. Harris, M. O’Boyle & C. Warbrick, supra note 14, p. 318. 33 Quaranta, cited above, §§35–36. 34 Pham Hoang, cited above, §40. See also See also ECtHR, Biba v. Greece, no. 33170/96, §28, 26 September 2000, and Twalib v. Greece, 9 June 1998, §53, Reports of Judgments and Decisions 1998-IV. In the latter, the Court observed that the applicant was of foreign origin and unfamiliar with the Greek language and legal system, that he was unable to indicate any grounds of appeal in his written notice of appeal and that this failure resulted in his appeal being declared inadmissible.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 49 Panayotis Voyatzis it highly unlikely that they would not be able to present their case related to tax surcharges, without legal assistance, before the national court.35 Moreover, the Court took into account that, even if the applicants might have had certain diffi culties, the domestic courts had an obligation under the relevant law to ensure that the circumstances of each case were clarifi ed to the extent that its character required and, where necessary, to give directions to the parties to supplement the case fi le with the requisite information.36

III. FREE LEGAL ASSISTANCE IN CIVIL CASES

As it has already been mentioned, Article 6 of the Convention remains silent insofar as free legal assistance in civil cases is concerned. Nonetheless, in the leading case Airey v. Ireland the Court considered that the obligation to provide legal aid in civil proceedings could derive under specifi c conditions from the right of eff ective access to the court:

“(…) Article 6 para. 1 (art. 6–1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an eff ective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case”.37

A. THE SPECIFICITY OF LEGAL AID IN CIVIL PROCEEDINGS

Th e Court has repeatedly considered that there is no obligation under the Convention to make legal aid available for all disputes in civil proceedings as there is a clear distinction between the wording of Article 6 §3 (c) and of Article 6 §1, the latter making no reference to the award of legal assistance.38 Furthermore, the Court pinpoints the free choice of means that the Contracting states enjoy in guaranteeing litigants the right to eff ective legal assistance in the course of civil proceedings. In

35 Barsom and Varli, cited above. See also ECtHR, Güney v. Sweden v. (dec.), n° 40768/06, 17 June 2008. 36 Barsom and Varli, cited above. 37 ECtHR, Airey v. Ireland, 9 October 1979, §26, Series A no. 32. See also see also Aerts v. Belgium, no. 25357/94, 30 July 1998, §§57–60, Reports of Judgments and Decisions 1998-V, and Gnahoré v. France, no. 40031/98, 19 September 2000, §38, ECHR 2000-IX. 38 See, among other authorities, ECtHR, Del Sol v. France, no. 46800/99, §20, 26 February 2002, ECHR 2002-II; Santambrogio v. Italy, no. 61945/00, §49, 21 September 2004, and Agromodel OOD v. Bulgaria, no. 68334/01, §22, 24 September 2009.

50 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights this context, the institution of a legal aid scheme constitutes one of those means but there may be others, such as for example simplifying the applicable procedure.39 However, the right of access to the court can be impaired to the extent that a litigant may be denied the opportunity to present his or her case eff ectively before the court and enjoy equality of arms vis-à-vis the opposing side due to the lack of eff ective legal assistance.40 Consequently, as with criminal proceedings, the provision of free legal assistance in civil cases aims ultimately at guaranteeing the equal procedural status of the applicant and the opposing party. Nonetheless, in the case of civil proceedings the Court acknowledges more openly and systematically than in criminal cases the fi nancial burden that the setting up of a legal aid scheme entails for the state. Th us, it is constantly underlined by the relevant case-law that it is not incumbent on the State to seek to ensure total equality of arms between the assisted person and the opposing party through the use of public funds, as long as each side is aff orded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.41 A confi rmation of this principle in the case-law is the restrictive approach regarding of the granting of legal aid to legal persons. For example, in Granos Organicos Nacionales S.A. v. Germany, the Court considered that the refusal of the domestic civil courts to grant a Peruvian company legal aid was not contrary to Article 6 §1 of the Convention. In this respect, the Court noted that the German courts had observed that “if the applicant company was to be put on a par with a domestic legal person, legal aid had to be denied because the non-litigation of the applicant company’s case did not run counter to the general interest. Moreover, a legal entity retained its right to exist under the legal order only if it was able to pursue its objectives by virtue of its own strength and merits”. Th e Court concluded that these constituted relevant grounds for the refusal of legal aid to the applicant company.42 When confronted with the question whether the refusal of legal aid in civil proceedings has impaired the right of access to the court, the Court will apply the traditional scheme of the proportionality test to the impugned measure. It will recall that the right of access to the court is not absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate.43 In this vein, the Court has admitted that it may be acceptable to impose conditions on the grant of

39 Airey, cited above, §26, and McVicar v. the United Kingdom, no. 46311/99, §48, 7 May 2002, ECHR 2002-III. 40 See, among other authorities, ECtHR, De Haes and Gijsels v. Belgium, 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 238, §53, and Steel and Morris v. the United Kingdom, no. 68416/01, §62, 15 February 2005, ECHR 2005-II. 41 ECtHR, Marangos v. Cyprus, no. 12846/05, §36, 4 December 2008. 42 ECtHR, Granos Organicos Nacionales S.A. v. Germany, no. 19508/07, §§48 and 50, 22 March 2012. 43 Ashingdane, cited above, §57; Brualla Gómez de la Torre v. Spain, 19 December 1997, §33, Reports of Judgments and Decisions 1997-VIII.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 51 Panayotis Voyatzis legal aid based, among others, on the fi nancial situation of the litigant or his prospects of success in the proceedings.44 Th e Court’s reference to the fi nancial situation of the litigant refl ects the more general position of the case-law on the issue of payment of fees to civil courts. Th us, it has been repeatedly held that the requirement to pay fees to civil courts in connection with claims they are called upon to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 §1 of the Convention. However, the amount of such fees is always assessed in the light of the particular circumstances of a given case, including, among others, the applicant’s ability to pay them.45 It is noteworthy that, in the context of criminal proceedings, the element of the applicant’s fi nancial eligibility is one of the two conditions explicitly provided by Article 6 §3 (c) which should be met in order for the latter to be entitled to free legal assistance. In civil proceedings, the applicant’s fi nancial situation appears in the case-law as one of the factors that may be assessed by the Court when examining whether the restriction imposed upon the right of access to the court impaired the very essence of the latter.46

B. THREE BASIC CRITERIA FOR THE ASSESSMENT OF THE NEED TO PROVIDE LEGAL AID

Th e Court has developed three essential criteria in order to determine whether the provision of legal aid was necessary in the course of civil proceedings. Th ese coincide with the conditions in the light of which the Court assesses whether the “interests of justice” require the granting of free legal aid in criminal proceedings: a) the importance of what is at stake for the applicant in the proceedings, b) the complexity of the relevant law and procedure and (c) the applicant’s capacity to represent him or herself eff ectively.47 Th e Court introduced from the outset the aforementioned criteria in Airey where it held for the fi rst time that the right to free legal aid in civil proceedings may be a condition for the realisation of the right of access to the court. In that case, an indigent woman was refused legal aid for initiating proceedings

44 Steel and Morris, cited above, §§60–62. See also ECtHR, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §61, Series A no. 316-B; Kreuz v. Poland, no. 28249/95, §62, ECHR 2001-VI; Wieczorek v. Poland, no. 18176/05, §37, 8 December 2009, and Alkan v. Turkey, no. 17725/07, §24, 7 February 2012. 45 Tolstoy Miloslavsky, cited above, §63 et seq.; ECtHR, Weissman and Others v. Romania, no. 63945/00, §35 and 37, ECHR 2006-VII (extracts); Iorga v. Romania, no. 4227/02, §39 and 42, 25 January 2007. 46 See, for example Airey, cited above, §27: “Th e applicant was unable to fi nd a solicitor willing to act on her behalf in judicial separation proceedings. Th e Commission inferred that the reason why the solicitors she consulted were not prepared to act was that she would have been unable to meet the costs involved. Th e Government question this opinion but the Court fi nds it plausible and has been presented with no evidence which could invalidate it.” 47 Airey, cited above, §26; McVicar, cited above, §§48–49; P., C. and S. v. the United Kingdom, no. 56547/00, §§90–91, ECHR 2002-VI, and Steel and Morris, cited above, §61.

52 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights before the High Court for an order of judicial separation. Th e Court acknowledged the importance of the issue at stake for the applicant: the case raised serious family issues. It was also complex. It concerned complicated points of law and proof of cruelty by the applicant’s husband required the testimony of expert witnesses. Furthermore, the applicant was of a modest background and the emotional nature of the proceedings would not be considered compatible with the degree of objectivity required by advocacy in the course of judicial proceedings.48 In its subsequent case-law, the Court elaborated on the elements fi rst identifi ed in Airey. As far as the importance of the case’s subject-matter is concerned, the Court appears to consider that there is a sort of hierarchy of civil rights.49 Certain categories of civil proceedings can be excluded from the award of legal aid under Article 6 §1, due to the fact that either their nature or the repercussions on the applicant’s situation are not so important as to require free legal assistance. Th is approach is consistent with the above-mentioned Court’s general position, namely that due to the limited resources of most legal aid schemes, it is reasonable for the State to set conditions regarding the obligation to provide legal assistance.50 One of these conditions is the possibility for the State to select categories of cases that qualify for legal aid. In this respect, in its earlier case-law the Court had ruled, for example, that, due to their general nature, defamation proceedings did not in principle require free legal assistance.51 In the Court’s view, the general nature of a defamation action, brought to protect an individual’s reputation, was to be distinguished from an application for judicial separation, as it was the case in Airey, which regulates the legal relationship between two individuals and may have very serious consequences for any children of the family.52 Nonetheless, in Steel and Morris the Court held that the fi nancial consequences of the defamation proceedings against the applicants could have been severe for them.53

48 Airey, cited above, §24. See K. Reid, A Practitioner’s Guide to the European Convention on Human Rights, Th omson, Sweet & Maxwell, 2nd edition, 2004, p. 130. 49 S. Shipman, “Defamation and legal aid in the European Court of Human Rights”, Civil Justice Quarterly, 2005, 24(Jan), pp. 23–30, 27. 50 See ECtHR Del Sol, cited above, §23: “(…) it is obvious that a legal aid system can only operate if machinery is in place to enable a selection to be made of those cases qualifying for it.” 51 See McVicar, cited above, §61, and Munro v. the United Kingdom (dec.), n° 10594/83, 14 July 1987, DR 52, p. 158. 52 Steel and Morris, cited above, §63. 53 Ibid. In this important case, the applicants were the defendants in the notorious libel case brought against McDonald’s Restaurants LtD. Th ey were a part-time bar-worker and an unemployed postman and were refused legal aid and so they represented themselves throughout the trial and appeal, with only some help from volunteer lawyers. Th ey lacked the necessary resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses. Th e factual case which the applicants had had to prove had been highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses. Th roughout the proceedings McDonald’s were represented by counsels experienced in defamation law. Th e trial

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 53 Panayotis Voyatzis

As for criminal proceedings, the criterion of the complexity of the case is closely intertwined with the ability of the applicant to represent himself eff ectively. Th e McVicar and Steel and Morris cases, both pertaining to defamation proceedings, deserve to be mentioned in this respect. In the former, the Court concluded that the applicant’s ineligibility for legal aid had not prevented him from defending himself eff ectively before the High Court. It accepted that the law of defamation was not particularly complex.54 Furthermore, whilst the burden of proof required, as in the Airey case, the calling of witnesses and expert evidence, the applicant was a well-educated and experienced journalist who was capable of formulating cogent arguments. Moreover, contrary to the Airey case, the applicant’s emotional involvement was not incompatible with the degree of objectivity required by advocacy in court.55 In Steel and Morris the Court focused on the singularity of the case so far as its complexity was concerned. It considered that the proceedings faced by the applicants were of a quite diff erent scale. Th e case was not legally straightforward. Extensive legal and procedural issues had to be resolved before the trial judge was in a position to rule on the main issue. In the Court’s view, in an action of this complexity, neither the sporadic help given by volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and the law of libel. Th e Court observed in this respect that the very length of the proceedings was, to a certain extent, a testament to the applicants’ lack of skill and experience. Based on these elements, it concluded that the denial of legal aid had deprived the applicants of the opportunity to present their case eff ectively before the court and contributed to an unacceptable inequality of arms vis-à-vis McDonald’s.56 Lastly, it should be noted that the mere granting of legal aid in the context of civil proceedings does not in itself absolve the Government of its responsibilities with regard to Article 6 §1 of the Convention. Additionally, the Government must ensure that citizens who are entitled to legal aid will be provided with eff ective representation in judicial proceedings so that their interests are properly represented. Th us, in Bertuzzi v. France, notwithstanding the granting of legal aid to the applicant, the Court found a violation of Article 6 §1 of the Convention because three lawyers in turn declined to act on his behalf due to their personal connections with the lawyer that the applicant was suing. Th e Court observed that the decision to grant

lasted for 313 court days and was the longest trial in English legal history. On appeal the Court of Appeal rejected the majority of the applicants’ submissions as to general grounds of law and unfairness, but accepted some of the challenges to the trial judge’s fi ndings as to the content of the leafl et. Th e damages awarded by the trial judge were reduced from a total of GBP 60,000 to a total of GBP 40,000. Leave to appeal to the House of Lords was refused. 54 McVicar, cited above, §55. 55 McVicar, cited above, §§53 and 61. 56 Steel and Morris, cited above, §§66–69.

54 Intersentia Th e Right to Legal Assistance Free of Charge in the Case- Law of the European Court of Human Rights the applicant legal aid “remained a dead letter” and on being advised of the lawyers’ withdrawal, the relevant authorities should have arranged for a replacement “who would provide the applicant with proper assistance”.57

IV. CONCLUSION

Th e Court has frequently observed with reference to the right of access to the court that: “the fi nal decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfi ed that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”.58 Th rough its case-law the Court has indeed actively protected the very essence of the right to free legal assistance both in civil and in criminal proceedings. So far as the former are concerned, an expansive interpretation of Article 6 §1 has extended its scope much further than it could have been anticipated by the Convention’s founding fathers.59 It would thus be no exaggeration to observe that the guarantee of free legal assistance is one of the most prominent judge-made constructions resulting from an extensive interpretation of the right to a fair trial. As regards the latter, based on the letter of Article 6 §3 (c), the Court has developed an important case-law resulting in the consolidation of the right to legal aid in the context of criminal proceedings. Th e Court’s president, Sir Nicolas Bratza has recently observed that: “Human rights, the rule of law and justice seem to be slipping down the political agenda in the current economic climate”.60 Furthermore, it has also been stated with regard to free legal assistance that: “the worth, functions and limits of the legal aid scheme are intimately connected to the structures and values of the society within which it operates”.61 If the current economic and social conditions in Europe are not conducive to an evolutive approach of the human rights law, what could the consequences be for the implementation by the ECtHR of the right to legal aid in the future? For instance, the increased infl ux of migrants fl ooding into Europe creates new challenges for the eff ective application of legal aid schemes. New questions arise in this context. For example, to what extent should the guarantee of legal aid be enshrined for non- European citizens residing unlawfully in the territory of an ECHR member state? In

57 ECtHR, Bertuzzi v. France, n° 36378/97, §§27–30, 13 February 2003. 58 See, among many others, ECtHR, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, §72, Reports of Judgments and Decisions 1998-IV. 59 See C. Rozakis, “Th e right to a fair trial in civil cases”, Judicial Studies Institute Journal, 2004, pp. 96–106, 97. 60 Th e Guardian, “Politicians told to stop ‘exaggerated criticism’ of human rights court”, 27.1.2012. See also, N. Bratza, “Th e relationship between the UK courts and Strasbourg”, European Human Rights Law Review, 2011, no. 5, pp. 505–512. 61 R. Young & D. Wall, “Criminal Justice, Legal Aid, and the Defence of Liberty”, in Young and Wall (eds), Access to Criminal Justice, London, Blackstone, 1996, p. 10.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 55 Panayotis Voyatzis

2009, the Court took up this question; it examined the case of a Congolese national, unlawfully resident in Belgian territory, who was refused legal aid by the Belgian civil courts in order to bring an action contesting her husband’s claim that he was the father of her child. Th e Court acknowledged the importance of legal assistance in this case. It accepted that the lack of residence permit should not stand in the way of access to justice in order to settle serious issues of family law.62 If legal aid is primarily directed at those who are socially excluded and, amid Europe’s current economic crisis, problems of unemployment, immigration, and indigence continue to increase, the Court may have an important role to play in guaranteeing the eff ectiveness of legal aid schemes. Undoubtedly, its role is cumbersome, as it has on the one hand to ensure the respect of the right of access to the courts, whose decisions may have a defi nitive impact on litigants’ substantive rights. On the other hand, the Court cannot ignore the fi nancial repercussions of its judgments on States’ budgets in this respect. Against this background, novel questions pertaining to the right to free legal assistance may emerge in the future, underpinning the existing link, according to Airey, between civil and socioeconomic rights: For example, to what extent is a State, when setting up legal aid schemes, bound to take into account a broad range of issues – related to education, welfare and legal services – in order to provide a systemic response to the ills of social exclusion which also aff ect the eff ective access of indigent citizens to justice?63 Could the defi ciencies of state-funded legal aid justify the national authorities seeking assistance beyond their own capabilities? In particular, if a state no longer possesses the necessary fi nancial resources to provide eff ective legal assistance, could it have recourse to alternative schemes that represent a mix of market and charity driven modes of legal aid?64 It remains to be seen if and how the Court will deal with these issues in the future. Th e achievement of substantive, and not only formal, equality in judicial proceedings for vulnerable groups could become in the future the natural corollary of the Court’s expansionist case-law in the fi eld of the right to free legal assistance. Th rough the development of positive obligations incumbent on the State, the Court may pursue the implementation of policies adapted to the specifi c needs of unemployed, indigent or migrant people in order to achieve their eff ective “equal” access to justice.

62 ECtHR, Anakomba Yula v. Belgium, no. 45413/07, 10 March 2009. 63 See J. Flood & A. White, supra note 1, p. 96. 64 Ibid., pp. 92–93. Th e authors refer in particular to legal expenses insurance, legal advice centres, pro bono work, self-help services and the simplifi cation of judicial and quasi-judicial proceedings.

56 Intersentia THE EUROPEAN ARREST WARRANT AND HUMAN RIGHTS IN THE CONTEXT OF THE REPUBLIC OF CYPRUS

Theodora A. Christou*

I. INTRODUCTION

Th e traditional areas of focus for the EU are those concerning the internal and external markets. Just over a decade ago this competence was extended to cover the area of freedom, security and justice (AFSJ), including fundamental rights. Th e creation of this new area will be the starting point of this paper. Th e drive behind this area’s development has been a principle taken from the internal market, the principle of mutual recognition. Th is principle is best exemplifi ed by the Framework Decision on the European Arrest Warrant (EAWFD),1 which the EU has used as a blueprint for subsequent mutual recognition measures in criminal matters. Th e second part of this paper will set out the key features of the EAWFD, the positives and its critics’ key concerns. Th e implementation of the EAWFD by the Republic of Cyprus (Cyprus) will further highlight the issues which it raises, as well as Cyprus’s optimistic Europhile attitude. Human rights, or rather the absence of explicit human rights in the EAWFD has been at the centre of most critique and will form

* LLB, LLM, called to the Bar at Lincoln’s Inn (2001); PhD Candidate and tutor of Criminal Law at Queen Mary, University of London (www.law.qmul.ac.uk/research/students/53282.html); Course convenor of the Forced Migration and Human Rights unit on the MSc Refugee Studies at London South Bank University; Elected Member of the Executive of the Bar Human Rights Committee of England and Wales (www.barhumanrights.org.uk), Legal Consultant at the AIRE Centre (www.airecentre.org); Research Fellow (2001–07) at the British Institute of International and Comparative Law and continues as ad-hoc consultant (www.biicl.org); Awarded the Peter Duff y Human Rights Award by Lincoln’s Inn; Nominated for the Reebok Human Rights Award, John Humphreys Freedom Award and IBA Human Rights Award. 1 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between MS, OJ, L 190, 18/07/2002 P. 0001 – 0020 as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, OJ 2009 L 81 of 2009–03–26, p. 24–36.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 57 Th eodora A. Christou the focus of the third part of this paper, including the positioning of the relevant human rights in Cyprus and the EU’s recent endeavours to balance security and liberty.

II. THE EU AND CRIMINAL JUSTICE

Th e concept is relatively new with reference to its creation fi rst mentioned in the 1992 Maastricht Treaty; however it was not until the 1997 Treaty of Amsterdam that its creation became an objective for the EU. Th e AFSJ covers a broad and diverse range of areas including asylum, immigration, civil procedure, police cooperation, drug traffi cking, counter terrorism, fundamental rights and criminal matters. Our focus will be on these fi nal two areas.2 In October 1999 the European Council met in Tampere to “set out policy guidelines and practical objectives”3 for an AFSJ. At this point a democratic defi cit existed. Under the third pillar; the European Parliament did not have equal co- legislator powers and the Court of Justice of the EU (CJEU) also had a “limited role”.4 With the collapse of the EU pillars under the Lisbon Treaty, the CJEU now has full jurisdiction over all measures including those dealing with criminal matters.5 Th e ordinary EU legislative process of qualifi ed majority voting now applies in the Council and the European Parliament has co-decision. Th e criminal justice systems of MS have diff erent legal heritages as well as being at diff erent stages of development. A decision was required on how these systems could work seamlessly together. An obvious option was to harmonize the criminal justice systems of MS. Given the high level of importance given by MS to their sovereignty and the resistance to handing further power over to the EU, this was not a popular choice. Th e alternative was to shelve harmonisation plans, leaving the substantive criminal law of MS untouched and instead to focus attention on mutual recognition of decisions from each others’ legal systems.6 Th e acceptance of this principle marked the start of the blossoming relationship between mutual recognition and the development of judicial cooperation in criminal matters. Within a year the principle of mutual recognition was declared by the

2 An indicative list of the diff erent measures passed in this area can be found in, K.Lenaerts, “Th e Contribution of the European Court of Justice to the Area of Freedom, Security and Justice”, ICLQ Vol. 59, April 2010, 255–301. 3 Commission’s Assessment of Tampere Report (COM (2004) 401, 2.6.2004). 4 Article 35 EU Treaty (introduced by the Amsterdam Treaty). Cyprus had not made such a declaration until March 2010. OJ 6.3.2010 (2010/C 56/05). 5 Article 10 of Protocol 36 Lisbon Treaty provides a transitional period of 5 years where MS can continue to withhold the authority for their courts to refer to the CJEU. 6 Cardiff European Council, 15 And 16 June 1998, Presidency Conclusions, SN150/1/98 REV 1 EN.

58 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus

Tampere Council as the “cornerstone of judicial cooperation” in criminal matters7 and is considered “the motor of European integration in criminal matters”.8

A. MUTUAL RECOGNITION

At the EU level, the principle of mutual recognition itself stems from the internal market, emanating from two cases of the CJEU, one concerning whiskey and the other Cassis de Dijon.9 In both these cases, the CJEU held that products imported from one MS should be accepted by other MS as if they had been lawfully produced according to its own standards. MS were therefore obliged to accept the standards in the exporting state. It added that free movement of goods and mutual recognition of national standards did not require harmonization. Th is statement is mirrored in a decision of the same court almost 30 years later in the cases of Gözütok and Brügge,10 Van Esbroeck11 and Advocaten voor de Wereld which states that the EAWFD “does not seek to harmonise the criminal off ences in question in respect of their constituent elements or the penalties which they attract”.12 Its appropriateness for the criminal law sphere has been questioned by academics, practitioners and authorities. Mutual Recognition regimes normally set conditions to assure States that application of a foreign State’s orders, decisions and certifi cations are compatible with their own.13 Th ere does not appear to be any conditions placed on Mutual Recognition with the absence in criminal justice of real benchmarks for minimum standards; rather presumptions are made as to the safety of decisions based solely on the fact that all MS are signatories to the ECHR and as members of the EU have an allegiance to common values and principles. Th e use of mutual recognition instead of the more invasive alternatives of harmonization and approximation has not meant that MS retain full sovereignty. It requires the executing State to internalise, unmodifi ed, the issuing State’s decision. In some instances it may require the recognition of a decision which goes against

7 See the 2004 European Council Hague Programme (2005/C 53/01, 2005). Th e European Commission Communication in 2005 to the Council and Parliament, stressed the need for access to justice to be guaranteed and recommended setting minimum procedural safeguards (COM (2005) 184, 2005). 8 V. Mitsilegas, “Th e Th ird Wave of Th ird Pillar Law: Which Direction for EU Criminal Justice?”, Queen Mary School of Law Legal Studies Research Paper No. 33/2009; European Law Review, Vol. 34, No. 4, 2009 at p. 537. See also V. Mitsilegas, “Th e Constitutional Implications of Mutual Recognition in Criminal Matters in the EU”, 43 C.M.L. Rev. 2006 1277. 9 Cassis de Dijon, C-120/78, CJEU [1979] ECR 649. 10 Joined cases C-187/01 and C-385/01, Judgment CJEU, 11 February 2003. 11 Van Esbroeck. C-436/04, CJEU, 2005. 12 Advocaten voor de Wereld, C-303/05, Judgment CJEU, 3 May 2007 §52. 13 K. Nicolaides and G. Schaff er, “Transnational Mutual Recognition Regimes: Governance Without Global Government”, Law and Contemporary Problems, Vol. 68:263, 2005.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 59 Th eodora A. Christou the grain of its own decisions.14 Mutual recognition leads to a “horizontal transfer of sovereignty”.15 One example that “another little piece of their national sovereignty”16 was transferred through the implementation of the EAWFD are the constitutional amendments that have been required. Finally the concept of free movement of an individual subject to an EAW is turned on its head. Th e original concept aims to facilitate the enjoyment of free movement to the advantage of an individual, enabling EU citizens to exercise Treaty rights across Europe. Th e notion of free movement in the context of criminal matters seeks to facilitate free movement of an individual for the benefi t of MS, with the counter eff ect of restricting the liberty and free movement of that individual.17 Despite these shortcomings and concerns, MS have embraced the principle of mutual recognition. Th e case law of the Cyprus Courts in relation to the European Arrest Warrant (EAW) reinforce their acceptance of the principle and the trust they have in the systems of their fellow MS. Th e Supreme Court and the District Courts almost always make reference to the principle, as well as the aims of the AFSJ and the spirit of the EAW.18

III. A SUCCESS STORY?

Th e EAWFD was adopted to counter terrorism and other serious organized crimes. Th e terror attacks against the US in September 2001 created the sense of urgency required for MS to agree and adopt the text in record time. It is the fl agship mutual recognition measure heralded as a success because of both the unanimous implementation and the frequency it is used by all MS.19 It has also been used as the blueprint for other mutual recognition measures in the area. Th e EAW is defi ned in Article 1 as a “judicial decision issued by a MS with a view to the arrest and surrender by another MS of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention

14 Arts 1(1) and (2) (Council, 2002/584/JHA). 15 K. Nicholaides, “Mutual Recognition of Regulatory Regimes: Some Lessons and Prospects”, Jean Monnet Paper, 1997. 16 J. Apap and S. Carrera, “Judicial Cooperation in Criminal Matters, European Arrest Warrant, A Good Testing Ground for Mutual Recognition in the Enlarged EU?” CEPS Policy Brief No. 46, February 2004, p.4. 17 See amongst others, V. Mitsilegas, EU Criminal Law, 2009, p. 118 and S. Peers, “Mutual Recognition and Criminal Law in the EU: Has the Council got it Wrong?”, Common Market Law Review, Vol 41, 2004, pp.5–36. 18 See: Koko Ioannou (2011) District Court of Nicosia, No. 5/2011; George Odysseus (2009) iB AAΔ 1369; Panayiotis Philippou (2009) 1A AAΔ 693; Kyriacos C. Pegasus (2009) 1A AAΔ 519; Rifat Hadjiametovic (2009) 1A AAΔ 473; Ksenia Chervenko (2008), District Court of Famagusta No. 3/2008. 19 Th e European Commission considers it a success; see 2002/584/JHA.

60 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus order”. It continues to state that MS shall execute an EAW “on the basis of the principle of mutual recognition”. Th e EAWFD replaces extradition between EU MS, simplifying what was previously a complex matrix of diff erent rules applicable between diff erent States.20 Th ere is also a move away from traditional extradition terminology in favour of words such as surrender (to indicate the act of extraditing a person to an EU MS). Th e MS concerned are known as the issuing state (the MS requesting the surrender of the individual) and the executing state (the MS surrendering the individual). Some commentators do not regard the change of name to be a refl ection of a change of substance or the creation of a new system of international cooperation21, the European Court of Human Rights (ECtHR) has also to date considered them to be the same. It is evident that the EU considers the EAWFD as more than a re-branding exercise. In Advocaten voor de Wereld, Advocate-General Colmar states that the EAW is not extradition, “[i]t is clear that both concepts serve the same purpose of surrendering an individual who has been accused or convicted of an off ence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end”.22 Th e EAWFD speeds up what was previously a long process by setting short time frames and reducing the formalities to an absolute minimum. It moves the entire process from the political realm of MS and places the procedure into the sole hands of the judicial authorities, representing a “judicialisation” of the process.23 Th e “dialogue is no longer between sovereign states, but between independent judges”.24 It provides for a single central authority in each MS, a common request form, abolition of double criminality for the 32 listed off ences25 and turns the presumption in favour of surrender with only exceptional circumstances where it can be refused. Th e abolition of dual criminality has raised concerns; their defi nition and scope are a subject for the issuing MS, equating to broad categories rather than off ences. Th e recent surrender of Gary Robb by the UK to Cyprus illustrates this point in practice.

20 For an overview of extradition agreements leading up to the EAWFD see B. Bapuly, “Th e European Arrest Warrant under Constitutional Attack”, 3 Vienna Online J. on Int’l Const. L. 4 2009. Th ere is also an overview of the thwarted attempts to improve effi ciency in M. Plachta, “European Arrest Warrant: Revolution in Extradition?”, European Journal of Crime, Criminal Law and Criminal Justice (2003), Volume 11, Issue 2. 21 See Plachta ibid n. 20. 22 C-303/05 supra n. 12 §41. See also M. Fichera, “Th e European Arrest Warrant and the Sovereign State: A Marriage of Convinience?”, European Law Journal, Vol. 15, No. 1, January 2009, pp. 70– 97 at p. 84–87; J. Komarek, “European Constitutionalism and the European arrest Warrant: In search of limits of “contrapunctual principles””, CMLR 44: 9–40, 2007; O. Pollivino, “EAW and Constitutional Principles of the MS”, German Law Journal, Vol. 09 No. 10, 2008 at p. 1321; A. Sanger, ‘Force of Circumstance: Th e European Arrest Warrant and Human Rights”, Democracy and Security, 6: 1, 17–51, 2010 at p.43. 23 Bapuly supra n. 20, p. 14; and Plachta supra n. 20, p. 187–8. 24 Fichera, supra n. 22, p. 78. 25 Article 2.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 61 Th eodora A. Christou

Whilst the UK has no equivalent off ence to the Cyprus off ence for which Robb was wanted, this was not a bar to his surrender under the EAW. Th e reason for this was that the Cyprus off ence relating to dealings with property in the territory of Cyprus under illegal Turkish military occupation fell within the ‘fraud’ category of off ences. Fraud is one of the listed 32 off ences in the EAWFD and so dual criminality was not required.

A. CONSTITUTIONAL CHALLENGES

Th e concept of European citizenship sees the exclusion of the fi ercely guarded exception for a state’s own nationals.26Th e obligation to surrender ones own nationals caused diffi culties for MS whose Constitutions prohibited this and led to both Constitutional challenges and Constitutional amendments. Cyprus was one of the MS where a Constitutional prohibition on the extradition of its own nationals existed.27 In the case of Kostantinou28 the Supreme Court whilst recognizing the confl ict between the Constitution and EU law, was bound to refuse the surrender of Mr Konstantinou, a dual Cypriot/British national. Th is case led to Constitutional amendments with Art.1129 permitting the surrender of nationals for acts committed aft er accession (1 May 2004).30 Th e Cyprus authorities give two reasons for setting this date, both of which the experts dismiss;31 fi rstly that if it was before accession it would violate the principle of non-retroactivity of criminal law, this would be true for substantive law but not for procedural law. Secondly that only in exceptional cases will an EAW be for crimes before 1 May 2004. In reality there are many cases on SIS32 where the person has been wanted for some time but yet to be found, the existence of an off ence may not come to light until years later or an arrest may be requested aft er a long investigation. Whilst the Constitutional amendment has made EU law supreme, there is still a contradiction between the declaration of EU supremacy and other Constitutional provisions.

B. GROUNDS FOR REFUSAL

Th e reduced formalities, together with the exhaustive and limited list of grounds for refusal to surrender a requested person are the most obvious illustrations of mutual

26 Plachta, supra n. 20, p. 187. 27 Article 11 (2) (6) Constitution of the Republic of Cyprus. 28 Attorney-General v Konstantinou, (2005) 1B AAΔ 1356. 29 Articles 1, 140, 169 and 179 of the Cyprus Constitution were also amended, Offi cial Gazette No 4090 of 2006. 30 Th is is in violation of Article 32 EAWFD which states that the date cannot be later than 7 August 2007. 31 Evaluation report on the fourth round of mutual evaluations “the practical application of the European arrest warrant and corresponding surrender procedures between member states” Report on Cyprus, 14135/2/07 REV2 COPEN 141, 13 November 2007. 32 Th e Schengen Information System.

62 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus recognition. Under the EAWFD there are 3 mandatory grounds for non-execution33 and a further 7 optional grounds34 all of a procedural nature. It is interesting to note that these grounds have not been consistently implemented by MS. Many of the optional grounds for refusal have been implemented as mandatory grounds and are considered by some MS as discretionary; the CJEU in Case C-306/09 IB described them as optional.35 Th e political exception as a ground of refusal meant that States could refuse to extradite an individual if the request was politically motivated. Its omission from the EAWFD is welcomed by some commentators;36 however the logic is questionable and largely reliant on the political sympathies of the requested MS or the EU as a whole. Article 5(1) addressed the issue of trials in absentia, this has been deleted and the EAWFD amended to include an additional optional ground Article 4a.37 Th is new ground applies only to the recognition and execution of decisions rendered in the absence of the person concerned at the trial as from 28 March 2011.38 Th us Article 5(1) applies to decisions before this date.39 Th e availability of the “opportunity to apply for a retrial” found under Article 4a still falls below ECHR standards, which requires the entitlement to a retrial with a fresh determination on the facts and law.40 Th e amended provision is also the subject of a preliminary reference and may be amended again.41

C. IMPLEMENTATION BY CYPRUS OF THE EAWFD

Th e EAWFD was implemented in Cyprus by Law No. 133(I) of 2004 on the European Arrest Warrant and the Surrender Procedures. Cyprus has implemented all 3 mandatory grounds and all seven optional grounds. Th e implementation report42 highlighted the implementation of the requirement

33 EAWFD, MS must refuse to surrender an individual if: an amnesty exists; on the basis of ne bis in idem; or if they cannot be held criminally responsible in the executing state because of his age. 34 EAWFD Article 4. 35 C-306/09, Reference for a preliminary ruling under Article 35 EU from the Cour constitutionnelle (Belgium), in the proceedings concerning the execution of a European arrest warrant issued against I.B., Judgment CJEU 21 October 2010 §39 (in French “des motifs facultatifs prévus”). 36 J. Wouters and F. Naert, “Of Arrest Warrants, Terrorist Off ences and Extradition Deals: An Appraisal of the EU’s Main Criminal Law Measures Against Terrorism Aft er ‘11 September’”, CMLR, Vol. 41, 2004, pp. 909–935, p. 922. 37 Council Framework Decision 2009/299/JHA of 26 February 2009 thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. 38 C-306/09 supra n. 35 §15. 39 C-306/09 supra n. 35 §61. 40 See: Sejdovic v Italy, Application no. 56581/00, GC Judgment 1 March 2006. 41 Case 399/11 Melloni. 42 Commission 6815/05 ADD 1 COPEN 42.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 63 Th eodora A. Christou for dual criminality as mandatory beyond the 32 listed off ences.43 Article 4(3) EAWFD requires a distinction between part 1 (where the executing judicial authority has decided not to prosecute), and Article 4(3) part 2 (where it has decided to halt prosecution) which are optional for 16 MS including Cyprus. Th e experts44 point out that the optional nature of the second part is not in line with the jurisprudence of the CJEU45 to the extent that where a MS has decided to halt proceedings once the accused has fulfi lled certain legal obligations, refusal to execute an EAW should be mandatory. Where the MS may undertake to execute a custodial sentence,46 it has been transposed as a mandatory ground for nationals by 7 States including Cyprus and optional by 11 MS including Cyprus for residents or persons staying in Cyprus.47 In addition to the grounds set out in the EAWFD, Cyprus introduced additional grounds for refusal to surrender including where the person is requested in connection with an “activity for freedom”. Both implementation reports have been critical of this addition and amending law is pending before the Cyprus Parliament. However the recent historical events in Cyprus may explain why it was regarded necessary. In the 1950s, in the fi ght for independence from the British Empire, those campaigning for freedom and in particular EOKA48 were considered by the UK as terrorists.49 Th e process for issuing and executing EAWs in Cyprus is set out in detail in the Mutual evaluation report. Th e Central Authority (CA) is the Ministry of Justice and Public Order50 and other key actors include the police force, the Law Offi ce of the Republic of Cyprus and District Judges. Th e Attorney-General performs a double

43 Article 4(1). 44 Supra n.31. the “experts” were nominated by Member States with substantial practical knowledge of the European Arrest Warrant. Th e experts charged with undertaking the evaluation of Cyprus were: Ms Ana Bucar Brglez (Ministry of Justice, Slovenia), Mr Georgios Papageorgiou (Judge, Greece )and Dr. Peter Seda (Prosecutor, Austria). Two observers were also present: Mr Lampros Patsavellas (Eurojust) and Ms Claudia Gualtieri (Commission), together with the General Secretariat of the Council. 45 Joined Cases Gozutok (C-187/01) and Brugge (C-385/01), 11 February 2003. 46 Article 4(6). 47 Th e other optional grounds under Article 4 are: (2) if the person is being prosecuted for the same act in the executing MS; (4) statute-barred in the executing State and falls within its jurisdiction under its own criminal law; (5) the requested person has been “fi nally judged” for the same acts in a third country; (7) (a) the off ences are regarded by the executing MS as having been committed on its territory or (b) was committed outside the territory of the issuing MS and the law of the executing MS “does not allow prosecution for the same off ences when committed outside its territory.” 48 Εθνική Οργάνωσις Κυπρίων Αγωνιστών, (National Organisation of Cypriot Fighters). 49 For further information about the struggle for independence and the human rights implications see, Simpson, AW Brian, Human Rights and the End of Empire: Britain and the Genesis of the European Convention, 2001. 50 Th e competence of the Central Authorities of other MS has been questioned before the Cyprus Courts. However in all circumstances it has been held that it is up to the Issuing Member State to designate their Central Authority and it is suffi cient for the EAW is issued by the competent authority. See Eva Andersson (2008) 1B AAΔ 1092; Igor Ovakimyan (2005) 1B AAΔ 1119.

64 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus check whereby the police fi rst present the case and then present a draft of the EAW for a decision and approval by the Attorney General (AG). Th is ensures that procedural mistakes/omissions in issued EAWs are avoided and that proportionality is respected unlike in some other MS. Such a process will however appear cumbersome to many of the larger MS. Whilst this double check has not caused problems, the experts in the mutual evaluation found it to be unnecessary. Additionally the AG is not a judicial authority, although the experts accepted that it shares characteristics and that their involvement is before the judicial decision. However it is not clear how compatible it is that the AG could be a barrier to the request ever reaching a judge. All incoming EAWs are transmitted to the CA and not to the District Judge. Having faxed a copy to the AG, the CA will check the EAW for compliance with formal requirements but also substantial issues such as the description of the case. If it is not satisfi ed it will request further information or request for it to be reissued. Once satisfi ed it will issue the certifi cate required under Section 16.1 of the implementing law. Th e CA is not a judicial authority, and the certifi cation is no guarantee that the EAW will not be challenged before the courts. Th is role of the CA is criticized by the experts in the mutual evaluation. Th ey regard the role as going beyond the purely administrative role envisaged by the EAWFD and not in line with the objective of Article 7(2) for all decisions relating to the execution of an EAW to be taken by a judicial authority. It also adds an additional technical layer to the EAW procedure. Whilst MS were free to organize their domestic procedures, this had to be in the spirit of the FD which the Cyprus law was not. Th e requirement of Section 16(2) for the issuance of a domestic arrest warrant, would appear counter to the principle of mutual recognition. Th is is clearly not in line with the spirit of the EAWFD or with the principle of mutual recognition. Both require the execution of an EAW as if it were issued by the issuing states own authorities. Th e EAW implementing law and the Code of criminal procedure require a “judicial warrant”. Th e experts in their mutual report felt that there is no need for legislative amendment, in writing it is not per se in violation of the EAWFD, Cyprus law was capable of being interpreted in accordance with EU law and the Pupino51 requirement to interpret national law in compliance with EU law. Th e basis of the arrest was considered by the Cypriot Supreme Court in the case of Scattergood.52 Th e appellant argued that the basis of his arrest was the EAW law and not the Criminal Procedure Law under which the domestic arrest warrant was issued. Th e Court, not surprisingly found that there was no confl ict with the EAW implementing law, the Criminal Procedure Law or Article 11 of the Constitution.

51 C-105/03, Judgment CJEU, 16 June 2005. 52 David Scattergood (2005) 1A AAΔ 142. See also Dabas v High Court of Madrid where the UK has a similar requirement (issuance of a certifi cate), but was read in compliance of EU law to mean that it was not mandatory and certainly not fatal. Th e Court held that such a requirement would be inconsistent with the EAWFD and “inconsistent with the trust and respect assumed to exist between judicial authorities.”

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 65 Th eodora A. Christou

Once arrested on the basis of the domestic arrest warrant an individual must be bought before a judge within 24 hours.53 A decision will also be made whether to detain on remand or release pending the hearing. As to the role of the judge, whilst the letter of the law54 allows for active participation by judges, the reality is that they play a limited role. Th ey do not transmit the EAW nor deal with requests for further information unless substantial modifi cations or their authorising signature are required. If further information is required during the phase when the EAW request is being considered by the judge, the judge will indicate this to the police offi cer who will inform the CA. Th is is a feature shared with England and Wales where the transmitting and requests for further information are not carried out by the judge but by either the CPS or SOCA. Th e reluctance of judges may in part be explained by the common law heritage that judges should “be moved” by the parties which is diff erent to the inquisitorial role played by judges in civil law countries. Arguments against increased participation for judges include the strain it would put on their time. Interestingly at the time of the report all EAWs were dealt with by 3 lawyers as one of several tasks. Th e experts in the mutual evaluation recommended that the judges role in practice is increased to fall in line with the spirit of the EAWFD and mutual recognition which aim to promote judicial cooperation. As of March 2010, Cyprus extended jurisdiction to the CJEU in criminal matters. Th is means that the Supreme Court can make preliminary references to the Court. Th is is a useful tool to clarify aspects of the implementing laws which appear to be confl icting with the EAWFD – such as requirement for domestic warrant and the role of the CA in executing an EAW. In the meantime the Cyprus courts have dealt with a number of interesting points. In Ioannou55 they determined that the EAWFD permitted the use of a single EAW to request an individual for both prosecution and to serve a sentence for diff erent off ences. In Andersson,56 Ovakimyan,57Hadziahmetovic58 and Odysseos59 the Cyprus courts held that the competent body to issue an EAW was to be recognised as such by the issuing MS.

IV. HUMAN RIGHTS AND THE EAW PROCESS

Th e positioning of fundamental rights within the EAW system is not explicit but rather implied. Pérignon and Daucé, believe that the EAWFD contributes to the

53 Section 17 EAW Cyprus Law. 54 Sections 8.1 and 8.5. 55 Koko Ioannou (20011) District Court of Nicosia 5/2011. 56 Eva Karina Andersson (2008) 1B AAΔ 1092. 57 Igor Ovakimyan (2005) 1B AAΔ 1119. 58 Rifat Hadjiametovic (2009) 1A AAΔ 473. 59 George Odyseos (2009) 1B AAΔ 1369.

66 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus protection of human rights since it was draft ed with regard to compliance with human rights obligations and also through the inclusion of specifi c provisions which restate these rights.60 Th ese specifi c rights-based provisions focus on the obligations of the executing MS, they include the right to be informed that an EAW has been issued against them,61 the right to be assisted by counsel and an interpreter,62 if consenting to the surrender, they must be informed of the consequences in particular on the specialty rule63 and time spent in detention on remand during the EAW proceedings are to be deducted from any term of imprisonment.64

A. A HUMAN RIGHTS GROUND?

Whilst the above grounds address specifi c human rights concerns, the elephant in the room, is the absence of a free-standing human rights ground refl ecting the dubious positioning of human rights and the true priorities of MS to date. Th e mandatory grounds of refusal do not include those which raise obligations under the ECHR existing jurisprudence. Th ese include the bar to extradition when there is a real risk of torture or other Article 3 prohibited treatment. Human rights are referred to in Recitals 12 and 13 and Article 1(3) of the EAWFD, however none of the provisions provide a specifi c human rights ground to be considered when executing an EAW request. Recital 12 refers us to the text of Article 6 EC Treaty, the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR) as general principles to be respected. In addition to the non-specifi city of the human rights ‘protection’ the main problem diff erentiating what is seen on paper and what occurs in practice is the fact that the legal force of Recitals in EU law has not been defi nitively clarifi ed.65 Th e recitals seem to be baseless reassurances that in the global scheme of things, fundamental rights are protected. So whilst Recital 13 sets out guarantees against the surrender of an individual “to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”, the legal force of such pronouncements in Recitals is not clear. Article 1(3) lacks force and almost certainly was not meant to have the force of a ground to refuse implementation of an EAW. Two points to note are, fi rstly Article 1(3) does not guarantee human rights as such, but instead prevents the EAWFD

60 I. Pérignon and C. Daucé, “Th e European Arrest Warrant: a growing success story”, ERA Forum (2007) 8:203–214 at p. 212–3. 61 Article 11(1). 62 Article 11(2). 63 Article 13(2). 64 Article 26. 65 T. Klimas and J. Vaiciukaite, “Th e Law of Recitals in European Community Legislation”, ILSA Journal of International and Comparative Law, Vol 15:1, 2008.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 67 Th eodora A. Christou from modifying existing human rights obligations. In this sense it acts as a standstill clause. Secondly it does not provide a ground for refusal to surrender an individual. Pre-empting diffi culties with either their own Constitutions or other international obligations and in recognition of the lacunae left , some MS departed from the strict text of the EAWFD. For example Cyprus explicitly transposed Article 1(3), Recital 12 and Recital 13, introducing a human rights ground for refusal to surrender in their implementing law. In Cyprus the obligations to respect human rights are not only found under the ECHR but also under its own Constitution. Th e case of Obolashvili shows that this ground is not without bite whilst the District Court of Larnaca refused to surrender on the principle of double jeopardy, they also stated that an individual would not be surrendered if their human rights would be violated, in this case the length of time which had passed from the alleged off ence was found unacceptable and was a suffi cient reason for refusing surrender.66 Th e European Commission and other reports have been critical of this inclusion, their reasoning being based on an antithesis to mutual recognition.67 Th e EU authorities are concerned by the diff ering levels of human rights review and protection off ered by some MS when reviewing EAW requests. Th is concern would be understandable had these MS been off ering a lower level of protection, the reality is that they are explicitly taking into account human rights as opposed to accepting presumptions. Th ey state that it is ‘obvious’ that judges should not surrender someone where there is proof that this would lead to a serious violation of rights. In the Advocaten voor de Werald case, Advocate-General Colomer states that Recitals 7,12, 13, 14 and Article 1(3)) illustrate clearly that the EAWFD was adopted with the desire to respect fundamental rights and respect Article 6 of the EU Treaty. To this end “when there are reasons to believe, the basis of objective elements, that the arrest warrant has been issued for the purpose of prosecuting, punishing or prejudicing the position of a person” on the discrimination grounds or would be subjected to the death penalty, torture or other inhuman or degrading treatment, “the surrender of that individual must be refused”.68 At closer inspection it seems that the issue is with the nature of such a ground. Th e EU institutions dismiss an explicit ground as necessary, stating that such a ground is implicit on the basis of the very foundations of the Union and an explicit ground undermines Mutual Recognition. Given the

66 Th is was based on the excessive length of time; Vakhtang Obolashvili (2006) District Court of Larnaca, No. 2/2006. 67 Political orientation debate on issues arising from the Commission’s report of 23 February 2005, based its evaluation of the European Arrest Warrant (“EAW”) and the surrender procedures between MS and subsequent Member State responses, Doc. no 8569/05 COPEN 89, p. 2). See Fichera, supra n. 22, p. 88–89 for an example of a diff ering implementation such as the inclusion of additional requirements, the understanding of the defi nition of “competent judicial authority” and the ‘Italian case.’ 68 C-303/05, Advocate-General Opinion §18. In its decision the CJEU does not go as far as Colomer’s Opinion.

68 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus diff ering practice and the number of cases before the ECtHR against MS, Venneman considers it naïve to assume that the implied protection is suffi cient.69 In its current application mutual trust appears to enforce on judges a blind obedience, based on the presumption that all MS adequately respect fundamental rights to a comparable level. However the diff ering respect for human rights in practice aff ects this mutual trust. Sanger points the fi nger at the newly acceded MS as representing situations where substantial risks exist that an individual will not receive a fair trial.70 Whilst it may be true that the legal systems of some newly acceded EU MS may raise concerns, Sanger fails to note that their legal systems have all recently been evaluated as part of their accession process. Th e legal systems of the older MS have not been evaluated for some time and continue to raise issues before the ECtHR. In that sense they both represent a “journey into the unknown”.71 Th e opportunity to clarify the value of Article 1(3) and the permissibility of a self- standing human rights ground of refusal had been given to the CJEU in a preliminary reference from Belgium. Unfortunately neither the Court nor the Advocate-General felt that it is necessary to answer this question and thus the next opportunity is awaited.72

B. HUMAN RIGHTS OBLIGATIONS

Th e limited grounds for refusing to implement an EAW (and in particular the absence of a human rights ground) request means that there will be instances where MS will be satisfying the mutual recognition requirement but may well be acting counter to their human rights obligations. A long line of judgments from the ECtHR clearly hold that MS have an obligation to not remove/deport/extradite people from their jurisdiction to that of another state if there is a real risk their human rights would be violated. Not only does this obligation exist, but also the result that if the rights of the individual are subsequently violated by the receiving state, the sending state will also be deemed complicit in the violation of rights.73 In the context of the EAW, fundamental rights at the EU level are protected by Article 6 of the EC Treaty74 and the EAWFD. Th e EAWFD simply reverts to Article 6 of the EC Treaty, the Charter of Fundamental Rights (CFR) and the ECHR. All three

69 N. Vennemann, “Th e European Arrest Warrant and its Human Rights Implications”, 63 Zeitschrift für ausländisches öff entliches Recht und Völkerrecht (2003) p. 103–121. 70 Sanger supra n. 22, p. 23. 71 V. Mitsilegas, “Th e constitutional implications of mutual recognition in criminal matters in the EU”, 43 CMLR 2006. pp. 1277–1311. 72 C-306/09 IB. See also: T. Christou and K. Weis, “Th e European Arrest Warrant and Fundamental Rights: An Opportunity for Clarity”, New Journal of European Criminal Law, Vol. 1/1 2010. 73 See Soering v UK, Application No 14038/88, Judgment 19 January 1989; Chahal v UK, Application No 22414/93, Judgment 15 November 1996; Saadi v Italy, Application No 37201/06, Grand Chamber Judgment 28 February 2003. 74 Th is provision has retained its article number under the Lisbon Treaty.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 69 Th eodora A. Christou are clearly complementary and not mutually-exclusive. Th is three layer protection is oft en replicated in other mutual recognition instruments in the fi eld of criminal law. Individual rights and mechanisms arising from the operation of the EAW are not specifi ed in the text of the EAWFD or Article 6 EU Treaty, which merely off er a general statement of commitment to respect human rights. In the context of European criminal law and mutual recognition measures, human rights can be potentially protected at three levels: international, EU, national. With reference to the CFR and ECHR, it is evident that the rights relevant to the implementation of the EAWFD strike at the very heart of an individual’s autonomy and liberty, these rights include, the right to life, the prohibition against torture, cruel and inhuman treatment and the right to liberty; the right to a fair trial in relation to a trial that has already occurred or about to occur and any re-trial in relation to trials in absentia; the right for respect of family and private life and the eff ect that the surrender will have on the family and private life of the individual (and related others); and the availability of an eff ective remedy. Th is list of human rights is not exhaustive; other rights may also come into play depending on the particular circumstances, for example freedom of religion and discrimination. Th e case law of the ECtHR shows that MS continue to violate human rights, which begs the question; how can membership of the ECHR and the numerous EU proclamations of a commitment to human rights create a solid foundation for mutual trust that all MS will respect human rights equally and satisfactorily. Th is question whether the above are a suffi cient basis to displace MS obligations under the ECHR has in part been answered by both the ECtHR and the CJEU. Although these judgments were in the context of the EU asylum acquis, by analogy they can be applicable to mutual recognition measures in criminal matters. In MSS v. Belgium and Greece, the ECtHR held that existence of domestic laws and international treaties are not in themselves suffi cient to ensure adequate protection. States continue to be under an obligation to investigate the circumstances asylum seekers will face upon return. Th e ultimate test is the Osman75 formulation; whether a state knew or ought to have known that conditions of detention in another state would give rise to an Article 3 violation. If the answer is yes, the state may violate Article 3 by sending an individual into those circumstances. In N. S v Secretary of State for the Home Department,76 the CJEU affi rmed the fi ndings of the ECtHR in MSS. As with the EAW FD, the CJEU fi rst observed that the “issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice…based on mutual confi dence and a presumption of

75 Osman v UK, Application No 23452/94, Judgment 28 October 1998. 76 Joined Cases C-411/10 and C-493/10, (C-411/10) N. S v Secretary of State for the Home Department and (C-493/10) ME, ASM, MT, KP, EH v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, Judgment of the Court (Grand Chamber) 21 December 2011.

70 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus compliance, by other Member States, with European Union law and, in particular, fundamental rights.”77 MS are obliged when preparing to send an asylum seeker to another MS to examine the practical reality of asylum procedures beyond nominal signature to EU treaties. It also clarifi ed that a conclusive presumption, could itself be considered as undermining EU safeguards which seek to ensure compliance with human rights. Adding that the presumption an asylum seeker’s rights would be respected in the receiving Member State must be regarded as rebuttable.78 In many ways, in this case, the CJEU joins up many of the dots of a system which was developed without much joined up thinking. It takes into account the diff erent Directives which the asylum acquis is composed of, as well the EU Treaty and the CFR setting out that they are interrelated and that they must be read in compliance with the general principles of the EU and the ECHR. Given the cross-over of applicable principles and issues, it is evident that the principles set out in both MSS and NS in relation to the asylum acquis apply mutatis mutandis to other cross border AFJS matters, including the operation of the EAW system. Given these rulings, the Cyprus courts will need to give increased consideration to allegations that an individual’s rights will be violated upon surrender. A simple declaration on mutual recognition, mutual trust and the spirit of the EAW to justify surrender will not necessarily satisfy either their international, EU or Constitutional obligations.79

C. A FOCUS ON THE HUMAN RIGHTS

Th e following section will focus on the relevant rights which will also provide an opportunity to evaluate the performance of Cyprus.

1. A Fair Trial

Th e right to a fair trial is provided for under Article 6 of the ECHR. To date the ECtHR has maintained that this right does not apply to extradition proceedings and by analogy nor to EAW proceedings in the executing MS.80 Th e position under the EU diff ers. Not only is the scope of the right found under Article 47 of the Charter of Fundamental Rights (CFR) wider, but the guarantees have been explicitly extended to EAW proceedings. Although violations of Article 6 have been found against Cyprus by the ECtHR, these are limited and together with the list of pending cases against

77 Ibid note 76 §83. 78 Ibid note 76 §§99–105. 79 Supra note 18. 80 Although this may be on the verge of changing; on 28 February 2011, the ECtHR communicated a case on the EAW and human rights. EB v the UK, Application no. 63019/10.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 71 Th eodora A. Christou

Cyprus there is no evidence of a systemic or serious problem in terms of guaranteeing a fair trial. In addition, Article 28 of the Constitution safeguards equality before the law, the administration and justice, as well as equal protection and treatment. Article 30 clearly safeguards that no person shall be denied access to the court, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law, and that judgment shall be reasoned and pronounced in public session. One aspect which has been earmarked for reform is the length some proceedings can take. A signifi cant 84% of violations found against Cyprus by the ECtHR have concerned Article 6, 34 related to the length of proceedings with some also fi nding a violation of Article 13 because of a lack of remedy fl owing from the delay.81 In response, a Bill was proposed and enacted. On this basis a sequence of unilateral declarations by the Cypriot government have been accepted by the ECtHR.82

2. Prohibition against Torture

Th e application of Article 3 ECHR is commonly applied in relation to the EAWFD in relation to force used during arrest83 and detention conditions. Both the issuing and executing MS have obligations to ensure that individuals are detained in compliance with Article 3. Th e ECtHR jurisprudence refers to both detention conditions, such as the physical environment and overcrowding,84 as well as prison regimes, such as the use of strip searches.85 Additionally, the executing MS is under an obligation to ensure that they are not surrendering an individual to a real risk of Article 3 prohibited treatment.86 Article 8 of the Cyprus Constitution contains an absolute prohibition of torture or inhuman or degrading punishment or treatment. In terms of ECtHR cases against Cyprus, these are limited. Th e recent case of Onoufriou87 fi nds a violation of Article 3 in relation to the solitary confi nement regime in the Nicosia Central prisons and not of the general conditions. Th e most recent CPT report is from 2006 raises concerns

81 ECtHR statistics on Violation by Article and by Country 1959–2010, 31.12.2010. 82 Law on eff ective remedies for the violation of the right to a hearing within a reasonable time 2009. Th e remedies on off er do not extend to criminal proceedings. 83 Rehbock v Slovenia, Application No 29462/95, Judgment 20 May 1998. 84 See Peers v Greece, Application No 28524/95, Judgment 19 April 2001; Orchowski v Poland, Application No 17885/04, Judgment 22 October 2009. 85 See McFeeley and others v UK, Application No 8317/78, Judgment 15 May 1980; Van der Ven v the Netherlands, Application No 50901/99, Judgment 4 February 2003. 86 Soering v UK, Application No 14038/88, Judgment 7 July 1989. 87 Onoufriou v Cyprus, Application No. 24407/04, Judgment 7 January 2010.

72 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus in relation to overcrowding in the Central prison.88 According to the latest available fi gures the overcrowding levels are running at 147.9% (1.9.2009).89 Cyprus is not alone, with most MS having problems with overcrowding in their prisons. Th e procedural guarantees under Article 5 largely apply to the issuing MS alone, in particular those governing bail.90 Article 5 applies from the moment of arrest, whereupon the individual has the right to be informed promptly of the reasons for his arrest.91 Article 5(4) requires that the lawfulness of any arrest and detention be determined speedily by a ‘court’. Th e lawfulness of detention under Article 5 obliges States to consider alternatives to detention, which is to be used only as a last resort.92 Th e executing MS is arguably under an obligation to ensure that the surrendered person will not be arbitrarily detained. Whilst the lawfulness of an EAW arrest are a matter for the issuing MS, certain procedural guarantees once arrested are also binging on the executing MS. Th e right to liberty and security of person is guaranteed under Article 11 of the Cyprus Constitution and includes set time limits, for example, the maximum time a person can be detained on remand is set at 3 months.

D. REINFORCING TRUST THROUGH HUMAN RIGHTS

Th e reason as to why defence rights need to be additionally protected at the EU level has remained the same. Th e European Commission has recognized that insuffi cient levels of mutual trust exist between MS and that if a State has “any doubts about the consistent and comprehensive compliance with fair trial rights…judges and prosecutors may be unwilling to allow the surrender of someone”.93 If these doubts are not eff ectively dealt with, they risk destabilizing the system of mutual recognition. For genuine mutual trust to exist, as opposed to the current blind trust, judges require additional assurances and evidence that human rights standards are met and in cases where they are not that MS have safeguards and remedies in place. To this end the EU has determined certain rights as requiring priority in order to promote judicial cooperation and protect the principle of mutual recognition. Collectively these are referred to as procedural guarantees.

88 Report to the Government of Cyprus on the visit to Cyprus carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 17 December 2004 CPT/Inf (2008) 17, published 15 April 2008. 89 Capacity is 597 (1.9.2009 – 340 in the prison, 257 in police detention centres), prison population was 883 at 1.9.2009 (Council of Europe Annual Penal Statistics – including 213 pre-trial detainees held in police facilities) (International Centre for Prison Studies – www.prisonstudies.org/). 90 See Letellier v France, Application No 12369/86, Judgment 26 June 1991. 91 Article 5(2). Fox, Campbell and Hartley v UK, Application Nos 12244/86, 12245/86, 12383/86, Judgment 30 August 1989. 92 Jablonski v Poland, Application No 33492/96, Judgment 21 December 2000. 93 Commission Staff Working Document, Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings, COM(2010) 392 fi nal SEC(2010) 908, Brussels 20.7.2010 SEC(2010)907, p.7.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 73 Th eodora A. Christou

1. Stockholm Roadmap

Th e Stockholm Roadmap,94 as it is known, adopted a diff erent mode to that of the unsuccessful 2004 proposal.95 Instead of setting out all the rights in a single measure, each right would be considered in turn (and in accordance with the ‘Roadmap’) and a separate measure adopted for each. Th e rights are similar to those contained in the 2004 proposal, but instead of being considered all at once, they have been broken down into manageable portions which it is hoped are easier for MS to digest and adopt. What follows is a brief overview of these measures.

Measure A: Interpretation and Translation

Th e Directive on the rights to interpretation and translation96 has been adopted and requires MS to implement legislation by July 2013. Th e Directive obliges MS to ensure that a suspected or accused person is provided with interpretation during criminal proceedings. Th e scope begins at police questioning and continues until the conclusion of proceedings.97 In addition individuals are also entitled to translation of essential documents; the aim of both is to ensure that the individual understands the reasons for his arrest and the allegations against him. Th is right is based on Article 6 and the ECtHR jurisprudence which act as minimum standards, however its scope is extended to cover EAW proceedings.98 In Cyprus Section 17.1 of the EAW law provides for the right to an interpreter at fi rst hearing and in practice from arrest. However, during implementation of the Directive, Cyprus will need to also provide for translation of documents. Whilst Section 17.1 provides for the judge to fi rst examine the identity issue, in practice because of the constitutional right they are fi rst informed of right to interpreter and counsel ensuring that the identity issue is properly examined.

94 Resolution of the Council 30 November 2009 on a “Roadmap” for strengthening procedural rights of suspected or accused persons in criminal proceedings, 2009/C295/01, OJ C295/1, 4 December 2009. Th e Roadmap is part of the Stockholm Programme which is the third in line of programmes aft er Tampere (1999–2004) and Hague (2004–2009) which seeks to further the EUs priorities in the AFSJ. 95 Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004) 328 fi nal, Brussels, 28.04.2004. Th is endeavour was blocked by a number of MS, including Cyprus. Reasons for the objections included the EU’s lack of competency, legality and unnecessary doubling up on the existing ECHR obligations. 96 Directive 2010/64/EU of Th e European Parliament and of Th e Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings. 97 Salduz v Turkey, Application no. 36391/02, Grand Chamber Judgment 27 November 2008. 98 According to the ECtHR (Salgado v. Spain, Application No 65964/01, Decision 16 April 2002) extradition proceedings are not within the scope of Article 6 ECHR. Th e EAW whilst branded as diff erent to extradition by the EU, the ECtHR to date has held that Article 6 does not extend to EAW proceedings. (Angora v Spain (2008)).

74 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus

Measure B: Letter of Rights

A Directive99 on the right to information in criminal proceedings was adopted on 26 April 2012 and includes a model “letter of rights”. Th e “letter of rights” should contain practical details on the accused persons’ right to information about their procedural rights and information about the charges. Th e right to information about rights is not explicitly stated in the ECHR but has been implied in the ECtHR’s case- law. Th e rights on which information is to be provided include: the right of access to a lawyer;100 entitlement to legal advice free of charge and the conditions for obtaining it; the right to interpretation and translation; and the right to remain silent. Individuals will also be entitled to the right to information about the case including, reasons for arrest, the charge he is suspected of, the nature of the accusation and the right to access the materials of the case. Whilst these rights already exist either expressly or implied under the ECHR, their implementation is left to MS. Th e diff ering practice across MS in terms of the quality of information provided threatens the operation of mutual trust which requires rights to not only exist but to also appear to apply.101 Th e “Letter of Rights” is to be provided (whether asked for or not) in writing in the language understood by the accused, using simple everyday language (avoiding legal terminology). Two Model “Letter of Rights” are provided as part of the draft Directive, Annex I is for criminal proceedings and Annex II specifi cally for EAW cases. MS are free to draft their own versions and to include additional rights beyond the 4 core rights set out in the models. Cyprus has 2 years to implement the Directive. A “Letter of Rights” will need to be provided in accordance with the provisions. What is crucial is that it is in clear, simple, accessible language and understood by suspect/defendant.

Legal Representation, Legal Aid and Communication

Th e right to legal representation and legal aid were to be addressed by Measure C. However, given the sensitivity of the right to legal aid, it will now be considered separately. Th e right to legal representation has instead been merged with Measure D on the right to communicate with relatives, employers and Consular Authorities. Th e right to notifi cation of family members is covered by Article 8 of the ECHR. Th e 1963 Vienna Convention on Consular Relations provides for the right of an arrested

99 Directive on the right to information in criminal proceedings. 100 Largely following the ECtHR judgment in Salduz supra n.97. 101 T. Spronken, An EU-Wide Letter of Rights, Towards Best Practice, Ius Commune: European and Comparative Law Series, Volume 92, 2010.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 75 Th eodora A. Christou person to have their consulate informed of their detention and to receive visits from consular offi cials.102 A draft Directive on the right to legal representation and communication103 was presented by the European Commission on 8 June 2011. In the Draft , the scope of the ECHR rights have been extended to cover EAW proceedings. Procedural guarantees such as confi dentiality of meetings with a lawyer and the provision of adequate time for meetings with a lawyer, appear to also be adequately covered by the proposed Directive, including. Reinforcing the ECtHR line of authorities, the proposal sets out that the right to a lawyer exists from the fi rst questioning until the conclusion of proceedings. Th is has been made clear in Salduz and also Panovits v Cyprus104 where the ECtHR stressed the importance of legal assistance at the questioning stage given the particular vulnerabilities of suspects during this period. Nevertheless, there has been disagreement amongst MS and in an attempt to achieve consensus changes are likely to occur. On 11 July 2012 MEPs sitting on the Committee on Civil Liberties, Justice and Home Aff airs (LIBE), voted in favour of a draft Directive with only minor changes to the European Commission 2011 draft . Regardless of whether a suspect is under arrest, they must be provided with legal advice as soon as possible and before being questioned by police. Th e right to communicate with their family or employer and their consulate is also retained. Negotiations will now begin with the European Council. In terms of Cyprus, Section 17.1 of the EAW law provides for the right to be assisted by legal counsel as a formal requirement aft er the fi rst hearing (within 24 hours of arrest). In practice individuals are informed of right before the fi rst hearing and are given an opportunity to instruct and meet with a lawyer before hearing. Th e experts in the mutual evaluation report point out that if an individual does not have a lawyer he will be given a list of lawyers who have agreed to be listed and which is approved by the Court. Th e specialization of the lawyer is not listed – the argument being that there are only 1700 lawyers. A lawyer contacted through the list cannot in principle refuse the case. Legal aid is available to all and eligibility is determined by the judge. Th e considerations taken into account are whether the individual can bear the costs without aff ecting the basic needs of themselves and their family.

102 Commission Staff Working Paper, Impact Assessment Accompanying Th e Proposal For A Directive Of Th e European Parliament And Of Th e Council On Th e Rights Of Access To A Lawyer And Of Notifi cation Of Custody To A Th ird Person In Criminal Proceedings, COM(2011) 326 fi nal. 103 Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest COM(2011) 326/3, SEC(2011) 686, SEC(2011) 687. 104 Application No 4268/04, Judgment 11 December 2008.

76 Intersentia Th e European Arrest Warrant and Human Rights in the Context of the Republic of Cyprus

Vulnerable Suspects

Measure E concerns special safeguards for suspected or accused persons who are vulnerable. Work on this measure will follow the conclusion of a study into the issues. However, as has been seen the particular needs of vulnerable individuals have been taken into account when working on the other measures. At this time it is worth noting that the ECtHR in Panovits, stresses the signifi cance of taking into account an individual’s age, level of maturity and intellectual and emotional capacities. Citing T v UK,105 it states that MS must take steps to promote the ability of the individual to understand and participate in the proceedings.

Detention conditions

Th e European Commission has issued a Green Paper on Pre-Trial Detention.106 Th e Green Paper seeks to establish the extent to which detention issues impact on mutual trust, mutual recognition and judicial cooperation and what if any measures are appropriate for the EU to adopt. As set out above, Cyprus has a problem with overcrowding in its prisons and one of the issues covered by the Green Paper is the need to consider alternatives to detention. In terms of the EAW, it should be noted that in Cyprus those in remand are detained in police centres where there is currently no issue of overcrowding.

V. CONCLUSION

Evidently both the principle of mutual recognition and the EAWFD are a success in terms of achieving their objectives. Nevertheless, neither the EU nor the MS can aff ord to rest on their laurels, since the underlying mutual trust is being eroded by the human rights practices of MS. All parties concerned have realised that fl anking measures are required and in particular ones setting minimum defence right standards across the EU. In Cyprus, the EU is commonly regarded as a path to peace and respect for the rule of law throughout the island and this is one reason why Cyprus has embraced the EU, its laws and ideals. In its application of the EAWFD, it has remained fl exible, to the extent of even amending its own Constitution and making EU law supreme. Consideration of its implementation of the EAWFD needs to be framed within the small number of EAWs dealt with by Cyprus (with a population of about 800 000 balanced with 2–3 million tourists a year) which has impacted on the structural

105 T v UK, Application No 24724/94, Grand Chamber Judgment 16 December 1999. 106 Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the fi eld of detention COM(2011)327 fi nal, Brussels, 14.6.2011. Th e Consultation closed on 30.11.11.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 77 Th eodora A. Christou solutions in place; as well as the fact that it is a common law system and in particular the Court’s steadfast position that it is to be “moved by the parties” rather then inquire itself. Th e European Commission evaluation of Cyprus’s implementation regarded it as an overall success with some minor issues which have been set out above. One such issue is the express human rights ground introduced under Article 13(d) of implementing law. Implementation of the EAWFD is thus not absolute but restrained by human rights considerations and others such as the requirement for dual criminality for crimes other then the 32 listed ones (an optional provision which Cyprus chose to transpose). With the extension of CJEU jurisdiction, the Cyprus courts now have the opportunity to clarify these and other issues of interpretation and application. Human rights themselves appear to be adequately protected by the Cyprus Constitution and in respect of Cyprus’s treaty obligations. Th ere is nothing in the case law to indicate any serious or systemic issues. Th e legislator needs to ensure continued implementation of EU laws, in particular those governing procedural guarantees. Th e judges as the guardians of rights within the AFSJ need to continue to strive for the highest attainable standards of human rights protection and note their duty to investigate beyond proclamations and commitments of MS on human rights.

78 Intersentia CASE NOTES AND ANALYSIS

THE RIGHT TO FREEDOM OF THOUGHT AS PROTECTED BY THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Loukis G. Loucaides*

“If everyone is thinking alike, then no one is thinking.” Benjamin Franklin

I. THE LEGAL PROTECTION OF THE RIGHT TO FREEDOM OF THOUGHT

Freedom of thought was enshrined for the fi rst time in the Universal Declaration of Human Rights and was subsequently guaranteed by the European Convention of Human Rights (“Th e Convention”), the International Covenant of Civil Political Rights and in the Constitutions of many liberal and democratic societies.1 Article 9 of the European Convention provides as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Accordingly, it guarantees three separate but related freedoms: fi rst, freedom of thought, second freedom of conscience and third freedom of religion. To a certain extent these three freedoms overlap. What a person believes as a matter of conscience and as a matter of religion is an aspect of his thoughts. Th is article will concentrate on

* Barrister at Law, Gray’s Inn; former Judge of the European Court of Human Rights. 1 Universal Declaration of Human Rights Article 18, International Convention of Civil and Political Rights Article 18.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 79 Loukis G. Loucaides the concept of freedom of thought as a separate and autonomous freedom. Th e exercise of this right inside a person’s mind falls within the forum internum of every individual and the relevant freedom is absolute. A person is free to think whatever he chooses so long as he keeps it to himself. Th is is a common place. What is of particular interest however, is the kind of protection that should be given to this right in order to make its exercise eff ective. In addition, it is important to examine the expression of this right in so far as it comes outside the forum internum and address its protection’s limits.

II. THE SIGNIFICANCE OF THE RIGHT

When one focuses his attention to freedom of thought, he will immediately accept its great signifi cance as the foundation of other freedoms. Th e American judge Benjamin Cardozo rightly included the freedom of thought together with the freedom of expression as “the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations, a pervasive recognition of that truth can be traced in our history, political and legal.”2 Similarly, the European Court of Human Rights emphasised in the case of Kokkinakis v. Greece that “(a)s enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention”.3 In this respect, it suffi ces to recall that without freedom of thought, freedom of speech and expression become empty of any meaningful purpose. For if you cannot think freely, you cannot express any free ideas. In spite of its importance, very little has been written about this freedom and there is not much substantive discussion about it in the case-law of judicial organs including the European Court of Human Rights. Th is may be attributed to the fact that freedom of thought as a general rule may create a problem only when manifested through the expression of ideas or beliefs in which case other safeguarded rights, such as the freedom of expression or the freedom to manifest one’s religion or beliefs come into play and may be invoked and applied instead of freedom of thought. Furthermore, there is no adequate material in the preparatory works of the draft ers of the European Convention regarding the concept of “thought” for the purposes of the Article 9 of the Convention. From a certain intervention, it appears that the draft ers intended by their reference to the freedom of thought to protect the individual “not only from ‘confessions’ imposed for reasons of State but also from those adominable methods of police enquiry or judicial process which rob the suspected or accused person of control of his intellectual faculties and of his conscience.”4

2 Palko v. State of Connecticut, 302 U.S. 319 (1937). 3 A260-A(1993); 17ERR 397. 4 Yannis Kristakis, Th e Protection of Forum Internum Under Article 9 of the ECHR in Th e European Convention of Human Rights A Living Instrument: Essays in honour of Christos L. Rozakis. p. 285

80 Intersentia Th e Right to Freedom of Th ought as Protected by the European Convention on Human Rights

III. THE SCOPE OF FREEDOM OF THOUGHT’S PROTECTION

Th ere is not much to be said as to the possibility of a person to think freely inside his own mind for it is unfeasible to know with certainty what another person is thinking unless his thoughts are expressed. What is however important to defi ne is the kind of protection to be given by the state for the eff ective exercise of this freedom. In this respect, one should try to think of the possible external dangers that may obstruct, hinder or suppress freedom of thought. One obvious danger is the organised or oppressive indoctrination or even propaganda that may be carried out by state organs. A phenomenon met in totalitarian systems of government aiming at manipulating the mind of people with the object of making them to accept a particular political theory, e.g. communism or a certain form of government or policy. In this respect one may argue that such phenomenon cannot possibly exist in democratic societies where there is a pluralistic expression of views. However, even in liberal societies, there can be indoctrination or brainwashing by state organs and or certain organised groups or institutions armed with eff ective infl uential power. Such indoctrination can aim at categories of persons who are depending professionally, economically or otherwise on those using the indoctrination with the obvious danger of undermining their freedom of thought. Religious indoctrination is one example of such a situation. It is useful to quote here the following passage from the judgment of the ECHR in the Kokkinakis v. Greece case.5

“First of all, a distinction has to be made between bearing Christian witness and improper proselytism. Th e former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. Th e latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities off ering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.”

Reference must also be made here to educational institutions which, by means of their teaching or books, may distort various subjects, the more obvious being the history of the country in which they are established preventing thereby students from knowing

at p. 287 where reference is made to the intervention of M. Teitgen, “15th Sitting of the First Session of the Assembly”, CETP, Vol. I, p. 223. Contrary to Mr. Kristakis’s view that this does not add to the safeguards of Articles 3 and 5 of the Convention, the author believes that the objective expressed in the preparatory works is more precisely and clearly served by the freedom of thought and therefore gives more direct and eff ective protection of the individual against the methods mentioned in the intervention than the provisions of Articles 3 and 5. 5 Ibid para. 48.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 81 Loukis G. Loucaides the true facts and freely forming their own views. Such methods of indoctrination or brainwash and other methods of mind control should not be allowed to exist in any state where the right of freedom of thought is guaranteed.6 Destroying public sources of information, including mass media and their manipulation is another danger. Also, censorship, book-burning campaigns (for instance, those taking place in Nazi Germany), anti-intellectualism7, preventing research or the free fl ow of ideas and information form other methods which undermine the eff ective exercise of freedom of thought. Forcing a person to express, disclose or reveal in any way his thoughts accompanied or not by sanctions for any way of thinking is of course another process which would breach the right of freedom of thought. In practice, such expression would also be protected by the right to freedom of expression which encompasses the freedom to speak and not to speak.

IV. THE LIMITATIONS TO FREEDOM OF EXPRESSION

Th ere is a subtle legal point which arises in this context. Freedom of expression is subject to limitations while freedom of thought is, on the basis of the text of the Convention, an absolute right which, taken alone, is not subject to any restrictions. Th e only restrictions allowed in respect of the rights guaranteed by Article 9 of the Convention (which include the right to the freedom of thought) refer to the freedom to manifest one’s religion or beliefs and not to freedom of thought. Th is is understandable when one bears in mind that freedom of thought is basically exercised inside an individual’s mind and cannot, for that matter, be restricted. Yet, once a thought is expressed, the limitations allowed for the freedom of expression may become applicable to freedom of thought.8 It is submitted that a line should be drawn between expressions of thought that can be subject to limitations because they come within the scope of freedom of expression

6 Mind control techniques were experimented by CIA in a project called MKULTRA which was started on the order of CIA director Allen Welsh Dulles on April 13, 1953, largely in response to alleged Soviet, Chinese, and North Korean use of mind control techniques on U.S. prisoners of war in Korea. Th e CIA wanted to use similar methods on their own captives. Th e CIA was also interested in being able to manipulate foreign leaders with such techniques: Advisory Committee on Human Radiation Experiments Final Report. www.eh.doe.gov/ohre/roadmap/achre/chap3_4.html. Retrieved August 24, 2005, Church Committee p 391. 7 An extreme application of that took place in Cambodia under the rule of Pol Pot regime in the 1970s when people were killed for being academics or even for wearing eyeglasses in the Killing Fields. 8 For the problem of confl icts and conciliation of human rights such as Articles 9 and 10, see Françoise Tulkens, Confl icts between fundamental rights: contrasting views on Articles 9 and 10 of the European Convention on Human Rights, Blasphemy, insult and hatred: fi nding answers in a democratic society/Venice Commission. Strasbourg: Council of Europe Publishing, 2010, p. 121– 131.

82 Intersentia Th e Right to Freedom of Th ought as Protected by the European Convention on Human Rights and expressions of thought that should not be subject to such limitations because of the absolute protection given to them by Article 9 of the Convention. To draw such a line would be particularly challenging but could perhaps be focused on whether a particular limitation on the exercise of the right aims at suppressing the thought or the freedom of thought, as such, or whether it regulates the form and eff ects of its expression. Th e former should be excluded. In this respect, attention should be drawn to the fact that when any thought takes the form of a “belief”,9 then its expression automatically becomes subject to limitations. Th is is because paragraph 2 of Article 9 itself includes expressly the manifestation of “beliefs” in the rights that can be subject to limitations. In a case before the European Commission of Human Rights, the Government put forward the following position which remained undisputed:

“Th e term ‘belief’… in Article 9(1) relates to the holding of spiritual or philosophical convictions which have an identifi able formal content. It does not extend to mere ‘opinions’ or deeply held feelings about certain matters.”10 “Belief” is not the same as “opinion”.11

In any event, the limitations on freedom of expression should, because of their very nature, be interpreted and applied strictly12 and the fact that such freedom could in certain circumstances overlap with the absolute right of freedom of thought is an additional reason for applying additional care in interpreting such limitations in a strict manner.

9 For an interchangeable (and confusing) use of the terms “thought” and “belief” for the same matter see the decision of the Commission in the case Salonen v. Finland, Application No 27868/95 in which the wish of the parents to choose the forenames of their children was found according decision to be a “thought” (“taking into consideration the comprehensiveness of the concept of thought, this wish can be deemed as a thought in the sense of Article 9”) yet the complaint of the Applicants for not being allowed to implement their wish was rejected because “the applicants’ wish cannot be considered as a manifestation of a belief in practice in the sense of Article 9 para. 1 (Art. 9–1) of the Convention. Th e desired name has certainly a strong personal motivation. However the Commission does not fi nd that it is a manifestation of any belief in the sense that some coherent view on fundamental problems can be seen as being expressed thereby.” 10 EComHR, Mc Feeley et al v. United Kingdom, App. No. 8317/78 (Decision, 15.5.1980). 11 Campbell and Cosans v. UK Application No 7511/76 §36. 12 Eg Klass v. Germany ECHR Series A, Vol. 28 p. 214. According to the jurisprudence of the organs of the Convention, the limitations on the rights provided in the Convention should be interpreted strictly and narrowly. As observed by the Commission in the Sunday Times case (ECHR Series B, Vol. 28, p. 9) “Strict interpretation in respect of exception clauses in the context of the Convention means “that no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions and these criteria in turn must be understood in such a way that the language is not extended beyond the ordinary meaning.”

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 83 Loukis G. Loucaides

V. M A NIFESTATIONS OF THOUGHTS

Th ere are diffi culties in answering the question of which manifestations of the right to freedom of thought fall within the scope of its protection. In other words, when the thoughts of a person take the form of a particular behaviour or action, is the absolute protection enjoyed by freedom of thought under Article 9 of the Convention still applicable? It is diffi cult to conceive that the concept of freedom of thought safeguarded by the Convention is restricted to the right of any person to think freely in his own mind without, in any way, manifesting or implementing his thoughts. Such protection would have a restricted value. Persons do not think simply in order to keep their thoughts secluded in their mind. Th eir thoughts are, in one way or another, expressed in the forum externum through various forms. If they are expressed in the exercise of their right of freedom of expression, they are merged in that right and, subject to the qualifi cation that I proposed above, they become subject to the regulation applicable to that right. But there are manifestations of thoughts which do not fall within the strict concept of freedom of expression. Th oughts may lead a person to a certain attitude, conduct, behaviour or activity that cannot, strictly speaking, fall within the scope of freedom of “expression” within the meaning of Article 10 of the Convention. Th inking covers all possible subjects and positions and may end up with certain options of conduct or behaviour. Take for example a person who, aft er thinking freely, decides to join a political party, an association, a movement, or he decides to become a contributor to a particular newspaper, buy and read a book and, in general, to participate or avoid participating in any particular event. One cannot speak of freedom of “expression” in respect of this kind of conduct. Is it permissible by the state to interfere and prevent such implementation or manifestation of a person’s thoughts? It is necessary to mention here that although it may not fall within the concept of freedom of expression, the manifestation of a person’s thoughts may come within the ambit of another right (for instance the right to freedom of association or the right to protection of private life), other than freedom of expression, and be subjected to the limitations applicable to such right. But again the solution suggested above should apply, namely maintaining absolute protection in respect of the manifestation of thoughts on the basis of a criterion of non-applicability of such limitations to them which aim at suppressing the thought or the freedom of thought itself rather than at regulating the form and eff ects of its expression. Th is, I think, is the correct approach to give eff ect to both freedom of thought – which is not confi ned simply to the shaping of ideas but includes their implementation in the public’s sphere – and the right to freedom of expression of an idea. In considering this question I came across the Commission’s decision in the case of C. v. the United Kingdom of 15 December 1983, where it was stated:

84 Intersentia Th e Right to Freedom of Th ought as Protected by the European Convention on Human Rights

“Article 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form. However, in protecting this personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief: – for instance by refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure. Th e Commission has so held in Application No. 7050/75 (Arrowsmith v. the United Kingdom, Comm. Report, para. 71, D.R. 19 p. 5), where it stated that ‘ the term “practice” as employed in Art. 9(1) does not cover each act which is motivated or infl uenced by a religion or a belief.”13

It is submitted that this decision was confi ned to manifestations of religious beliefs which are subject to restrictions under the second paragraph of Article 9. Freedom of thought, as such, was not invoked and was not considered by the Commission. Th is was a case where the applicant had refused to pay certain taxes because his religious beliefs prevented him to contribute to tax intended to be applied for military expenditure. Article 9 separates freedom of thought from conscience and religion and provides restrictions for the last two which means that if freedom of thought falls within the concept of conscience or religion, any manifestations of behaviour in the public sphere that are covered by any of the last two concepts, become subject to the relevant restrictions. It is true that the beliefs in the spheres of conscience and religion are the products of thoughts. But that does not aff ect the distinction made by the Article of the three freedoms (thought, conscience and religion) resulting to a diff erent treatment of those thoughts that are covered by conscience and religion.

VI. ABSOLUTE PROTECTION AND RESTRICTIONS

In any event, a similar statement to that adopted in the above decision of the Commission to the eff ect that “in protecting the personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by a thought” (as distinct from a belief) may also be true even though the restrictions allowed by Article 9 are not applicable to the freedom of thought. Th is is so not only because of the possible application of the restrictions of another right in the light of the facts of the particular manifestation but also of the following possible limitations to the scope of manifestations of thought in the forum externum. (a) Even though freedom of thought by itself is absolute in the sense of not being subject to restrictions by the text of the Convention, Article 17 of the Convention

13 Case N° 10358/8 3.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 85 Loukis G. Loucaides which prohibits activities or acts aimed at the destruction of any of the rights and freedoms provided in the Convention may be invoked to set a limit to the manifestation of certain thoughts that undermine the rights of others such as the right to life which may be endangered by, for instance an expression of an incitement to kill.14 (b) A person is free to adopt any thought but it may reasonably be argued that thinking has inherent limits regarding for instance the place and mode of its expression.15 Inherent limitations may also be justifi ed in order to protect potential victims from the psychological impact or physical actions of individuals with mental diffi culties or problems. However, such limitations must be approached with caution and defi ned preferably in an amendment of the Convention and, in any case, be subject to the rule of proportionality. In addition, protection of freedom of thought cannot extend to any activity which is only remotely connected to the freedom of thought. Th ere is a wide spectrum of thoughts converted into action or behaviour that must enjoy absolute protection especially all those that do not fall within the notion of any right which is subject to restrictions. For instance, an intention to vote for a specifi c party is essentially a thought confi ned to the forum internum of a voter and when it is manifested it should enjoy absolute protection.16 Th e same applies to many similar options. But there are also demands that cannot be considered as falling within the concept of freedom of thought. For instance, there is no obligation upon a state to provide that the use of a particular language should be permitted in exercising freedom of thought.17

VII. PROTECTION THROUGH POSITIVE ACTION

Th e question now arises as to whether freedom of thought, like any other human right, must be protected by the State through positive action. As in the case of other human rights, the duties upon a State should go beyond the responsibility of merely refraining from interfering with Article 9 rights – which include freedom of thought – and extend to a duty for positive action on the part of state authorities to ensure that every right safeguarded by Article 9 is an eff ective one. Such positive action in the case of freedom of thought can take the form of legislation prohibiting indoctrination, propaganda, dissemination of false information to the public18 and

14 See para 49 of the Arrowsmith case referred to by the above decision of the Commission. 15 For an analysis of inherent restrictions to rights accepted by the jurisprudence of the ECHR see, among other authorities, the case of Roche v.UK Application No 32555/96. 16 Georgian Labour Party v. Georgia, Application 9103/04, 8/7/2008 §120. 17 See for instance the facts in the case of Inhabitants of Leeuw-St Pierre v. Belgium. 18 See in this respect L. Loucaides “Th e right to information” in Essays on the Developing Law of Human Rights, Martinus Nijhoff Publishers.

86 Intersentia Th e Right to Freedom of Th ought as Protected by the European Convention on Human Rights providing sanctions for behaviour or activities which amount to manifestation of a school of thought. It can be argued that in an ideal democratic society where the political right to elect representatives is of paramount importance, it may also be incumbent on the state organs, the political parties and the candidates for election, to provide the electorate with the necessary information to enable them to exercise eff ectively their right of freedom of thought for the election of any candidate. Generally speaking, it may be said that the prevalence of transparency in the government aff airs is an important and necessary obligation and a condition for the free thinking of the citizens as regards the control of activity of those who govern them for the benefi t of an effi cient democracy. Knowledge is necessary to enable the citizens to participate in public aff airs. It is also a requirement for an eff ective functioning of a democracy. “A popular government”, says Madison, “without popular information or the means to acquire it is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will for ever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”19 Indeed, every person who is ill-informed cannot think freely because, being deprived of all the necessary information, his intellectual process of thinking is barred from developing freely its optimum extent. Th erefore, it cannot be emphasised enough, that a prerequisite to the exercise of freedom of thought, is the eff ective exercise of the right to freedom of information.

19 Th e Complete Madison, 1953, p. 337. Cf. Advisory Opinion No. OC-5/85 of Nov. 1985 Ser. A, No. 5, at 102, reprinted in Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 & 29 of the American Convention on Human Rights) Nov. 13, 1985, 25 I.L.M. 123, 141, where the Inter-American Court of Human Rights has inter alia stated: “… it can be said that a society that is not well informed is not a society that is truly free”. See also Antieau, Modern Constitutional Law, Vol. 1, p.4.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 87 AL-SKEINI AND OTHERS V. THE UNITED KINGDOM (NO. 55721/07) – GRAND CHAMBER JUDGMENT OF 7 JULY 2011

Natasha Bakirci*

On 7 July 2011 the European Court of Human Rights, sitting as a Grand Chamber, delivered its seminal judgment in the case of Al-Skeini and Others v. the United Kingdom. Th e application had been brought against the United Kingdom by six Iraqi nationals who alleged that their relatives had been under UK jurisdiction when they had been killed at the hands of members of the British armed forces in events occurring during the occupation of Iraq between 1 May 2003 and 28 June 2004. Aft er unanimously holding that the UK had exercised jurisdiction under Article 1 of the European Convention on Human Rights (“the Convention”) in respect of all six of the applicants’ relatives, the Court went on to fi nd a violation of the procedural aspect of Article 2 of the Convention – in that there had been a failure to conduct an independent and eff ective investigation into the deaths of the relatives of the fi rst fi ve applicants.

I. FACTS OF THE CASE

Th e factual situation surrounding the death of each applicant’s relative is diff erent, though all occurred during the period of the Coalition Provisional Authority’s (CPA’s) temporary exercise of powers of government in Iraq, when the UK had command of the Multinational (South East) military division, which included the province of Basrah, where all the applicants’ relatives were killed. Th e fi rst applicant’s brother was shot dead by a soldier in command of a British patrol, who the Government maintained did so believing that his life and those of the other soldiers in the patrol were at immediate risk. Th e second applicant’s husband was shot and fatally wounded by a British soldier whilst visiting a relative at his home in Basrah, during a raid by British soldiers on the house.

* Natasha Bakirci, LLB, LLM, Barrister, Judicial Clerk at Dubai International Financial Centre (DIFC) Courts.

88 Intersentia Al-Skeini and Others v. the United Kingdom (no. 55721/07) – Grand Chamber Judgment of 7 July 2011

Th e third applicant’s wife was shot and fatally wounded at the family home by stray bullets from an exchange of machine-gunfi re between a patrol of British soldiers and unidentifi ed gunmen from outside the building. Th e fourth applicant’s brother was shot and fatally injured when driving a minibus near a British military patrol by a British soldier who maintained that he believed that his team was about to be fi red on. Th e fi ft h applicant’s son was allegedly beaten and forced into a river, despite not being able to swim, aft er having been arrested by British soldiers for looting. His dead body was subsequently found in the water. Th e sixth applicant’s son died whilst in the custody of the British army at a British military base three days aft er having been arrested by soldiers.

II. ADMISSIBILITY OF THE APPLICATION

Th e Court, at the outset, considered that the UK Government were estopped from raising a preliminary objection to the eff ect that the deaths of the second and third applicants’ relatives were attributable to the United Nations, and not the UK, as they had occurred aft er 16 October 2003, when the United Nations Security Council had adopted resolution 1511. Paragraph 13 of resolution 1511 had authorised a Multi- National Force to take “all necessary measures to contribute to the maintenance of security and stability in Iraq”. Th erefore, the Government contended that in conducting the operations in which the second and third applicants’ relatives had been shot, the UK troops had not been exercising the sovereign authority of the United Kingdom but, rather, the international authority of the Multi-National Force, acting pursuant to the binding decision of the United Nations Security Council. Th e Court observed that the Government had not raised this argument before the national courts and therefore could not seek to rely on this objection in the context of the present proceedings. As regards the Government’s assertion that as the acts in question had taken place in Southern Iraq (Basrah), they fell squarely outside the UK’s jurisdiction under Article 1 of the Convention (except in the case of the relative of the sixth applicant who had died whilst being detained in a British military prison) – the Court considered that this question was closely linked to the merits of the complaints and therefore joined this preliminary question to the merits. Th e Court similarly decided to join to the merits of the complaint the question of whether the fi ft h and sixth applicants could still claim to be victims of any violations of their rights under Article 2, given that the death of each of their sons had been investigated by the national authorities and compensation paid to the applicants. Lastly, the Court rejected a preliminary objection on the part of the respondent Government that the fi ft h applicant had failed to exhaust domestic remedies, fi nding that the fi ft h applicant was correct in his assessment that he would have had no

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 89 Natasha Bakirci prospects of success had he sought to purse his judicial review application in the domestic courts following the House of Lords’ judgment in the case of Al-Skeini, in which the majority held that the UK had exercised jurisdiction only in respect of the sixth applicant’s son who had died whilst detained in a military prison, an analogy being drawn with the extra-territorial exception to jurisdiction made for embassies under international law.

III. MERITS OF THE APPLICATION – JURISDICTION

Th e Court began its assessment of the merits of the application by recapitulating the general principles relevant to jurisdiction under Article 1 of the Convention. It was observed that the engagement undertaken by a Contracting State under Article 1 is confi ned to “securing” (“reconnaître” in the French text) Convention rights and freedoms to persons within the State’s own “jurisdiction”. Jurisdiction under Article 1 is a threshold criterion, the exercise of which is a necessary condition for a Contracting State to be held responsible for acts or omissions imputable to it giving rise to an allegation of an infringement of Convention rights and freedoms. Th e Court then recognised and reiterated the principle which had been established in a number of earlier cases, most notably Banković and Others v. Belgium and Others ([GC] (dec.), no. 52207/99, §66, ECHR 2001- XII) on which the Government had sought heavily to rely in their observations, that a State’s jurisdictional competence under Article 1 is primarily territorial and is generally presumed to be exercised normally throughout the State’s territory. It followed that acts which were imputable to Contracting States but which were performed or produced eff ects outside their territories could constitute an exercise of jurisdiction under Article 1 of the Convention only in exceptional cases. Whether exceptional circumstances existed to justify a fi nding by the Court that the State was exercising extra-territorial jurisdiction was to be determined with reference to the particular facts of each case. Th e Court identifi ed two kinds of extra-territorial jurisdiction, namely: (i) where a State agent exercised authority and control over an individual; and (ii) where a Contracting State exercised eff ective control over an area.

A. AUTHORITY AND CONTROL OVER AN INDIVIDUAL

As regards State agent authority and control over an individual – a clear example of this was diplomatic and consular agents, whose acts on foreign territory could amount to an exercise of jurisdiction under international law when the agents exerted authority and control over others. Additionally, the Court had previously recognised the exercise of extra-territorial jurisdiction by a Contracting State when through the consent, invitation or acquiescence of the Government of that territory it exercised all or some of the public powers which would normally exercised by that

90 Intersentia Al-Skeini and Others v. the United Kingdom (no. 55721/07) – Grand Chamber Judgment of 7 July 2011

Government. Th us where, in accordance with custom, treaty or another agreement, authorities of the Contracting State carried out executive or judicial functions on the territory of another State, the Contracting State could be responsible for breaches of the Convention thereby incurred, as long as the acts in question were attributable to it rather than to the territorial State.1 Furthermore, in certain circumstances the use of force by a State’s agents operating outside its territory could bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. Th is principle had been applied where an individual had been taken into the custody of State agents abroad, such as was the case in Öcalan v. Turkey ([GC], no. 46221/99, §91, ECHR 2005-IV), where the Court found that “directly aft er being handed over to the Turkish offi cials by the Kenyan offi cials, the applicant was eff ectively under Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”. Moreover, in its judgment in the case of Issa and Others v. Turkey (no. 31821/96, 16 November 2004), the Court had indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In the Court’s admissibility decision in the case of Al-Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, §§86–89, 30 June 2009), the Court had held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Lastly, in Medvedyev and Others v. France ([GC], no. 3394/03, §67, ECHR 2010- …), the Court had held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. Th e Court did not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. Th e decisive element in such cases had been the exercise of physical power and control over the individual(s) in question. It is interesting to contrast the Court’s emphasis on the factual power and control exercised by State agents, albeit extra-territorially, with the domestic courts’ and the Government’s narrower understanding of the parameters of extra-territorial jurisdiction – which they only accepted in the context of an individual detained in a

1 Reference was made to the Court’s judgment in the case of Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240), where the Court examined complaints arising from decisions of French and Spanish judges sitting in the Andorran courts. In that case, however, the Court found that, when sitting in the Andorran courts, the French and Spanish judges were acting as Andorran judges and that no responsibility for their actions attached to France or Spain.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 91 Natasha Bakirci

UK-run military detention facility located in a UK base, essentially by analogy with the extra-territorial exception made for embassies under international law.

B. EFFECTIVE CONTROL OVER AN AREA

As to eff ective control over an area, the second type of situation in which a State might exercise extra-territorial jurisdiction – the Court noted that another exception to the principle that jurisdiction under Article 1 is primarily limited to a State’s own territory occurred when, as a consequence of lawful or unlawful military action, a Contracting State exercised eff ective control of an area outside its national territory. Th e obligation to secure, in such an area, Convention rights and freedoms derived from the fact of such control, whether it was exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration. Th e case of the Turkish Republic of Northern Cyprus “TRNC” being the prime example (reference was made to Loizidou v. Turkey (preliminary objections), 23 March 1995, §62, Series A no. 310; Loizidou v. Turkey (merits), 18 December 1996; and Cyprus v. Turkey [GC], no. 25781/94, §76, ECHR 2001-IV, inter alia). Where the fact of such domination over the territory had been established, it was not necessary to determine whether the Contracting State exercised detailed control over the policies and actions of the subordinate local administration. Th e fact that the local administration survived as a result of the Contracting State’s military and other support entailed that State’s responsibility for its policies and actions. Th e controlling State had the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it had ratifi ed, and would be liable for any violations of those rights. It was a question of fact whether a Contracting State exercised eff ective control over an area outside its own territory. In determining whether eff ective control existed, the Court would primarily have reference to the strength of the State’s military presence in the area. Other indicators might also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provided it with infl uence and control over the region.

IV. CAN CONVENTION RIGHTS BE “DIVIDED AND TAILORED”?

A notable aspect of the Grand Chamber’s judgment in Al-Skeini is the contrasting position it took from the one it had adopted in the case of Banković (cited above), where it had held at paragraph 75 of its decision that:

92 Intersentia Al-Skeini and Others v. the United Kingdom (no. 55721/07) – Grand Chamber Judgment of 7 July 2011

“…the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defi ned in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question”.

Th e Government had laid great emphasis on this in their observations, contending that within its jurisdiction, a Contracting State was under an obligation to secure all the rights and freedoms provided by the Convention. Where the Court previously had found the exceptional “eff ective control” basis of extra-territorial jurisdiction to apply, it had stressed that the State exercising eff ective control was thereby responsible for securing the entire range of substantive Convention rights in the territory in question. In clear contrast to the Grand Chamber’s fi nding in Banković and in answer to the Government’s arguments in this regard, the Grand Chamber concluded at paragraph 137 of its judgment in Al-Skeini that:

“…whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković, cited above, §75).”

V. THE “LEGAL SPACE” (“ESPACE JURIDIQUE”) OF THE CONVENTION

Th e Government further submitted that the Court had also held in Banković that the Convention was “an instrument of European public order” and “a multi-lateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States”. Th e essentially territorial basis of jurisdiction refl ected principles of international law and took account of the practical and legal diffi culties faced by a State operating on another State’s territory, particularly in regions which did not share the values of the Council of Europe Member States. Moreover, despite dicta to the contrary in the subsequent Chamber judgment in Issa and Others v. Turkey (cited above), the Grand Chamber in Banković had made it clear that the “eff ective control of an area” basis of jurisdiction could apply only within the Convention legal space. In addition to the control exercised by Turkey in northern Cyprus, the Court had applied this exception in relation to only one other area, Transdniestria, which also fell within the territory of another Contracting State (Moldova). Any other approach would risk requiring the State to impose culturally alien standards, in breach of the principle of sovereign self-determination.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 93 Natasha Bakirci

Th e Grand Chamber found that although the Convention is a constitutional instrument of European public order and does not govern the actions of States not Parties to it, and furthermore, does not purport to be a means of requiring the Contracting States to impose Convention standards on other non-Member States, the Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another Convention state, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory. To hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space”. However, the importance of establishing the occupying State’s jurisdiction in such cases did not imply, a contrario, that jurisdiction under Article 1 of the Convention could never exist outside the territory covered by the Council of Europe Member States. Th e Court had not in its case-law applied any such restriction in cases such as Öcalan, Issa, Al-Saadoon and Mufdhi and Medvedyev (all cited above).

VI. THE COURT’S CONCLUSION ON JURISDICTION IN THE PRESENT CASE

In determining whether the United Kingdom had jurisdiction over any of the applicants’ relatives when they died, the Court took as its starting point the fact that, on 20 March 2003, the United Kingdom, together with the United States of America and their coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba’ath regime then in power. Th is aim was achieved by 1 May 2003, when major combat operations were declared to be complete and the United States and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations. A letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States to the President of the United Nations Security Council, explained that the US and the UK, having displaced the regime previously in power, had created the Coalition Provisional Authority (CPA) “to exercise powers of government temporarily”. Th e CPA was to act as a “caretaker administration” until an Iraqi government could be established. It had the power, inter alia, to issue legislation. One of the powers of government specifi cally referred to in the letter of 8 May 2003 to be exercised by the US and the UK through the CPA was the provision of security in Iraq, including the maintenance of civil law and order. Th e letter further stated that “Th e United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority shall, inter alia, provide for security in and for the provisional administration of Iraq, including by… assuming immediate control of Iraqi institutions responsible for military and security matters”.

94 Intersentia Al-Skeini and Others v. the United Kingdom (no. 55721/07) – Grand Chamber Judgment of 7 July 2011

In its fi rst legislative act – CPA Regulation No. 1 of 16 May 2003 – the CPA had declared that it would “exercise powers of government temporarily in order to provide for the eff ective administration of Iraq during the period of transitional administration, to restore conditions of security and stability…” Th e contents of the letter of 8 May 2003 were noted by the UN Security Council in Resolution 1483, adopted on 22 May 2003. Th is resolution gave further recognition to the security role which had been assumed by the US and the UK when, in paragraph 4, it called upon the Occupying Powers “to promote the welfare of the Iraqi people through the eff ective administration of the territory, including in particular working towards the restoration of conditions of security and stability…” Th e Grand Chamber observed that during this period, the UK had command of the Multi-national military Division (South East), which included the province of Basrah, where all the applicants’ relatives had died. From 1 May 2003 onwards, the British forces in Basrah had taken responsibility for maintaining security and supporting the civil administration. Among the UK’s security tasks were patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. In July 2003 the Governing Council of Iraq was established. Th e CPA remained in power, although it was required to consult with the Governing Council. In Resolution 1511, adopted on 16 October 2003, the UN Security Council underlined the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483. It also authorised “a multinational force under unifi ed command to take all necessary measures to contribute to the maintenance of security and stability in Iraq”. UN Security Council Resolution 1546, adopted on 8 June 2004, endorsed “the formation of a sovereign Interim Government of Iraq… which will assume full responsibility and authority by 30 June 2004 for governing Iraq”. Th e occupation had come to an end on 28 June 2004, when full authority for governing Iraq passed to the Interim Iraqi Government from the CPA, which then ceased to exist. Th erefore, in the Grand Chamber’s view, following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the UK (together with the US) had assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the UK had assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considered that the UK, through its soldiers engaged in security operations in Basrah during the period in question, had exercised authority and control over the individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the UK for the purposes of Article 1 of the Convention. Th e Court noted that the deaths at issue in the instant case had all occurred during the relevant period – the fi ft h applicant’s son had died on 8 May 2003; the fi rst and fourth applicants’ brothers had died in August 2003; the sixth applicant’s son had died in September 2003; and the spouses of the second and third applicants

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 95 Natasha Bakirci had died in November 2003. It had not been disputed that the deaths of the fi rst, second, fourth, fi ft h and sixth applicants’ relatives had been caused by the acts of British soldiers during the course of, or contiguous to security operations which had been carried out by British forces in various parts of Basrah City. Consequently, it followed that in all the cases there had been a jurisdictional link for the purposes of Article 1 of the Convention between the UK and the deceased. Th ough the third applicant’s wife had been killed during an exchange of fi re between a patrol of British soldiers and unidentifi ed gunmen and it was not known which side had fi red the fatal bullet, the Grand Chamber considered that, since the death had occurred in the course of a UK security operation, when British soldiers had been carrying out a patrol in the vicinity of the applicant’s home and had joined in the fatal exchange of fi re, there had also been a jurisdictional link between the United Kingdom in this case.

VII. BREACH OF THE INVESTIGATIVE DUTY UNDER ARTICLE 2

Having found that the UK had jurisdiction under Article 1 of the Convention over all six applicants’ relatives, the Court went on to examine their complaint that the Government had not fulfi lled its procedural duty under Article 2 of the Convention to carry out an eff ective investigation into the deaths. Th e Court referred to its previous case law that the obligation to protect life required that there should be an eff ective offi cial investigation when individuals had been killed as a result of the use of force by State agents. Th e Court took into account the practical problems caused to the investigatory authorities by the fact that the UK was an occupying power in a foreign and hostile region in the immediate aft ermath of invasion and war. Th ose practical problems included a breakdown in the civil infrastructure, leading to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. In those circumstances the procedural duty under Article 2 had to be applied realistically, to take account of the specifi c problems faced by investigators. Nonetheless, the fact that the UK was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be eff ective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command. It was not at issue in the fi rst, second and fourth applicants’ cases that their relatives had been shot by British soldiers, whose identities were known. Th e question was whether in each case the soldier had fi red in conformity with the relevant Rules of Engagement. In respect of the third applicant, Article 2 required an investigation

96 Intersentia Al-Skeini and Others v. the United Kingdom (no. 55721/07) – Grand Chamber Judgment of 7 July 2011 to determine the circumstances of the shooting, including whether appropriate steps had been taken to safeguard civilians in the vicinity. As regards the fi ft h applicant’s son, it needed to be determined whether British soldiers had, as alleged, beaten the boy and forced him into the river. In each case eyewitness testimony was crucial. It was therefore essential that, as quickly aft er the event as possible, the military witnesses, and in particular the alleged perpetrators, should have been questioned by an expert and fully independent investigator. Similarly, every eff ort should have been taken to identify Iraqi eye-witnesses and to persuade them that they would not place themselves at risk by coming forward and giving information, and that their evidence would be treated seriously and acted upon without delay. It was clear that the investigations into the shooting of the fi rst, second and third applicants’ relatives had failed to meet the requirements of Article 2, since the investigation process had remained entirely within the military chain of command, and had been limited to taking statements from the soldiers involved. As regards the other applicants, although there had been a Special Investigation Branch (SIB) investigation into the death of the fourth applicant’s brother and the fi ft h applicant’s son, the Court did not consider that that had been suffi cient to comply with the requirements of Article 2, since (as the Court of Appeal had also found domestically) the SIB was not, during the relevant period, operationally independent from the military chain of command. In contrast, a full, public inquiry was nearing completion into the circumstances of the sixth applicant’s son’s death. In the light of that inquiry, the sixth applicant was no longer a victim of any breach of the procedural obligation under Article 2.2 In conclusion, the Court found a violation of Article 2 concerning the lack of an eff ective investigation into the deaths of the relatives of the fi rst, second, third, fourth and fi ft h applicants.

2 In fact, the respective inquiry, the Baha Mousa Inquiry published its report on 8 September 2011, in which it found that the sixth applicant’s son had died aft er suff ering serious gratuitous violence, and also that the detainees had been subjected to banned conditioning methods such as hooding and sleep deprivation. Th e chairman of the Inquiry, Sir William Gage, found a very serious breach of discipline by UK soldiers as well as corporate failures at the Ministry of Defence, although he did not uphold claims that there was an entrenched culture of violence in the military unit.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 97 NEULINGER AND SHURUK V. SWITZERLAND (NO. 41615/07) – GRAND CHAMBER JUDGMENT OF 6 JULY 2010

Daniel Rietiker*

I. PRINCIPAL FACTS

Th e applicants, Isabelle Neulinger and her son Noam Shuruk, are Swiss nationals who were born in 1959 and 2003 respectively and live in Lausanne (Switzerland, Canton of Vaud).1 In 1999 Ms Neulinger settled in Israel where she married Shai Shuruk in 2001.2 Th eir son, Noam, was born in Tel Aviv in 2003.3 Fearing that Noam would be taken by his father to a “Chabad-Lubavitch” community – she described the Lubavitch movement as ultra-orthodox, radical and known for its zealous proselytising – Ms Neulinger applied to the Tel Aviv Family Court, which in 2004 imposed a ban on Noam’s removal from the country until he attained his majority.4 She was awarded temporary custody and guardianship was to be exercised by both parents jointly. Th e father’s access rights were subsequently restricted on account of his threatening behaviour.5 In February 2005 the parents divorced and in June Ms Neulinger secretly left Israel for Switzerland with her son.6 In a decision of 30 May 2006, issued following an application by the child’s father, the Tel Aviv Family Court observed that Noam was habitually resident in Tel Aviv and that the parents had joint guardianship.7 Th e court held that the child’s removal from Israel without the father’s consent was wrongful

* Ph.D. (University of Lausanne) MA (Graduate Institute of International Relations, Geneva). Th e author works as a senior lawyer at the European Court of Human Rights. Th e views expressed in this note are his own and do not necessarily refl ect the views of the Court. Th e author wishes to thank his colleague, James Brannan, for his precious comments on a previous draft . 1 Neulinger and Shuruk, §§1 and 15. 2 Ibid., §17. 3 Ibid. 4 Ibid., §§18–19. 5 Ibid., §§20–21. 6 Ibid., §§25 and 28. 7 Ibid., §31.

98 Intersentia Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010 within the meaning of Article 31 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”).2 In a decision of 29 August 2006 the father’s application for his son’s return to Israel was dismissed by the Lausanne District Justice of the Peace on the ground that there was a grave risk that the child’s return to Israel would expose him to physical or psychological harm or otherwise place him in an intolerable situation.3 Th e Vaud Cantonal Court dismissed the father’s appeal, confi rming that this case was an exception to the principle of the child’s prompt return, in accordance with Article 13, sub-paragraph (b), of the Hague Convention.4 On 16 August 2007 the Swiss Federal Court allowed the father’s appeal, on the ground that the Article in question had been wrongly applied, and ordered Ms Neulinger to return the child to Israel.5 Th e 26 September 2007 the applicants lodged their application to the Court. On 27 September 2007 the President of the First Section decided to indicate to the Government, under Rule 39 of the Rules of the Court,6 that it was desirable not to enforce the return of Noam.7 In a judgment of 8 January 2009, the First section of the Court held, by four votes to three, that there had been no violation of Article 8. In February 2009 the applicants provided the European Court of Human Rights with the certifi cate of a doctor who had examined Noam in 2005, and several times since then, indicating that “an abrupt return to Israel without his mother would constitute a signifi cant trauma and a serious psychological disturbance for this child”.8

1 Th is Article reads as follows: “Th e removal or the retention of a child is to be considered wrongful where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention (…).” 2 Ibid. 3 Ibid., §36. 4 Th is provision provides as follows: “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (…) b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” 5 Neulinger and Shuruk, §44. 6 Rule 39 reads as follows: “1. Th e Chamber or, where appropriate, its President may, at the request of a part or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. Th e Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” 7 Ibid., §§1, 5, and 45. 8 Ibid., §46.

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On 5 June 2009, the case was referred to the Grand Chamber at the applicants’ request.9 In a provisional-measures order of 29 June 2009 the Lausanne District Court, at the request of Ms Neulinger, decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted parental authority to the mother, so as to allow her to renew the child’s identity papers.10

II. COMPLAINTS

Th e applicants relied, in particular, on Article 8 of the European Convention on Human Rights,11 submitting that Noam’s return to Israel would constitute an unjustifi ed interference with their right to respect for their family life.12

III. REASONING OF THE COURT

With regard to the complaint under Article 8, the Grand Chamber found, like the Chamber,13 that Noam’s mother had removed him from Israel “wrongfully”.14 Under Israeli law the principle of guardianship – which included the right to determine the child’s place of residence – was comparable to custody rights under the Hague Convention, which had therefore been breached, because guardianship was to be exercised by both parents jointly.15 In addition, the mother had removed the child in breach of an order prohibiting his removal from Israel that had been made by the domestic court at her own request, and the removal rendered illusory, in practice, the possible exercise by the father of his right of access.16 She had thus committed an

9 Ibid., §10. 10 Ibid., §47. 11 Th is article reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. Th ere shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 12 Th e complaints under Articles 3 and 9 of the Convention had already been declared inadmissible by the Chamber for failure to exhaust domestic remedies. Accordingly, the Grand Chamber could not examine them (Neulinger and Shuruk, §88, referring to K. and T. v. Finland [GC], no. 25702/94, §141, ECHR 2001-VII). 13 Par. 80 of the Chamber’s judgment, reproduced in par. 92 of the Grand Chamber’s judgment. 14 Neulinger and Shuruk, §105. 15 Ibid., §102. 16 Ibid., §§103 and 104.

100 Intersentia Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010 abduction for the purposes of the Hague Convention and the Swiss Federal Court’s order for the child’s return therefore had a suffi cient legal basis.17 Th e Grand Chamber shared the Chamber’s opinion that the order pursued the legitimate aim of protecting the rights and freedoms of Noam and his father, which the parties had not denied.18 In ascertaining whether a fair balance between the competing interests at stake – those of the child, of the parents, and of public order – had been struck, the child’s best interests had to be the primary consideration.19 Th is consisted in maintaining his ties with his family but also ensuring his development in a sound environment.20 Th e concept of the child’s best interests was inherent in the Hague Convention, which in principle required the prompt return of the abducted child unless there was a grave risk that the child’s return would expose him to physical or psychological harm.21 It was not the Court’s task to take the place of the competent authorities in examining whether Noam would be exposed to such harm if he returned to Israel, but to ascertain whether the domestic courts had respected Article 8 of the European Convention on Human Rights, particularly taking into account the child’s best interests.22 Th e Court noted in this connection that those courts had not been unanimous, fi rst dismissing then allowing the father’s appeal. According to the experts’ reports there would be a risk for Noam in the event of his return to Israel, and in any event, in the view of the courts, he could return only with his mother so as to avoid signifi cant trauma.23 Th e Court was prepared to accept that in the present case the return order remained within the margin of appreciation aff orded to national authorities in such matters.24 It also held that the Convention could not be interpreted in a vacuum but had be interpreted in harmony with general international law and in particular the rules concerning the international protection of human rights, such as the Convention on the Rights of the Child of 20 November 1998.25 Th e Court was of the opinion that, if a return order was enforced a certain time aft er the child’s abduction, that might undermine the pertinence of the Hague Convention, it being essentially an instrument of a procedural nature and not a human rights treaty.26 Moreover, according to that instrument, a child’s return could not be ordered if he was settled in his new environment. Noam had Swiss nationality and had arrived in the country at the age of two.27 According to the applicants he had

17 Ibid., §105. 18 Ibid., §106. 19 Ibid., §134. 20 Ibid., §136. 21 Ibid., §137. 22 Ibid., §§138 and 141. 23 Ibid., §§142–144. 24 Ibid., §145. 25 Ibid., §§131 and 132. 26 Ibid., §145. 27 Ibid., §147.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 101 Daniel Rietiker settled well there, attending a municipal secular day nursery and a State approved private Jewish day nursery.28 He now went to school in Switzerland and spoke French. Even though he was at an age (7 years’ old) where he still had a certain capacity for adaptation – as the Chamber had pointed out –, the fact of being uprooted again would probably have serious consequences for him.29 Th e Court noted that restrictions had been imposed by the Israeli courts on the father’s right of access.30 Moreover, the applicants had submitted, without being contradicted by the Swiss Government, that Noam’s father had remarried and only a few months later had divorced his pregnant wife, who had subsequently brought proceedings against him for failure to pay maintenance.31 Th e Court doubted that such circumstances, assuming they were established, would be conducive to Noam’s well-being and development.32 In addition, whilst the Chamber had found no reason to doubt the credibility of the Israeli authorities’ assurances concerning the risk of criminal sanctions against Ms Neulinger, the Grand Chamber observed that according to a letter of April 2007 from the Israeli Central Authority, the possibility of her not being prosecuted would depend on a number of conditions such as respect for the father’s right of supervised access, pending any further decision.33 Criminal proceedings could not therefore be ruled out entirely and if Ms Neulinger were to be imprisoned that situation would not be in Noam’s best interests, his mother being the only person to whom he related.34 In the event of her imprisonment, it was doubtful whether the father would have the capacity to take care of the child, whom he had not seen since his departure, in view of his past conduct and limited fi nancial resources.35 Ms Neulinger – a Swiss national and therefore entitled to remain in the country – was not therefore totally unjustifi ed in refusing to return to Israel.36 In the light of all the foregoing considerations, particularly the more recent developments in the applicants’ situation, as indicated in the Swiss provisional- measures order of 2009, the Court was not convinced that it would be in the child’s best interest for him to return to Israel.37 As to the mother, she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return to Israel.38 Consequently, the Court held, by 16 votes to one, that

28 Ibid. 29 Ibid. 30 Ibid., §148. 31 Ibid. 32 Ibid. 33 Ibid., §149, referring to §40. 34 Ibid. 35 Ibid. 36 Ibid., §150. 37 Ibid., §151. 38 Ibid.

102 Intersentia Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010 there would be a violation of Article 8 in respect of both applicants if the decision ordering Noam’s return to Israel were to be enforced.39 Th e Grand Chamber unanimously confi rmed the Chamber’s fi nding that the complaint under Article 6 §1 constituted one of the essential points of the complaint under Article 8 and that it was not necessary to examine it separately.40 Under Article 41, the Court ordered Switzerland to pay the applicants a total of 15,000 euros jointly for costs and expenses. Th e only dissent to the majority’s view was that by Judge Zupančič who noted that, in his view, Article 8 had already been violated by the fi nal decision reached in the Swiss domestic jurisdiction and that the “hypothetical” nature of the violation found by the majority, based on the pending execution of the Swiss fi nal decision on the matter, was inappropriate. He also noted that the Grand Chamber’s judgment in his view revisited the case of Maumousseau and Washington v. France41 particularly its logic requiring enforcement of the aim of the Hague Convention perceived as “to prevent the ‘abducting parent’ from succeeding in legitimating, by the passage of time operating in his or her favour, a de facto situation which he or she had brought about unilaterally (nemo auditur propriam turpitudinem allegans)”. In addition to Judge Zupančič’s dissent, there was a number of interesting separate and concurring opinions. Judge Lorenzen, joined by Judge Kalaydjieva, disagreed with the Federal Court’ fi nding and the Chamber’s assumption, endorsed by the majority of the Grand Chamber, that it had to be accepted that the mother, who is of Swiss nationality, could reasonably be expected to return to Israel accompanied by the child. Judges Cabral Barreto and Malinverni expressed each a concurring opinion. Judge Malinverni analysed why in his view there would be a violation of Article 8 if the child was returned, contrary to what he had previously found during the Section’s examination of the case. It is in particular the passage of time that led him change his assessment and conclude that the child’s return to Israel would not be in its interest. Judges Jočienė, Sajó and Tsotsoria expressed a joint separate opinion, fi nding that the return of the child in execution of the Federal Court’s judgment would have constituted a violation of Article 8 in so far as the Swiss authorities, in applying the Convention, did not give proper consideration to the applicants’ right under this provision.

IV. ANALYSIS

Th e outcome of the case is not a usual one and might give rise to criticism.42 Four distinct reasons of concern have been identifi ed and will be discussed in turn below.

39 Ibid. 40 Ibid., §§152 and 153. 41 Maumousseau and Washington v. France (no. 39388/05, ECHR 2007-XIII). 42 See, for a particularly critical comment, A. Boiché, “La Cour strasbourgeoise a-t-elle decide d’annihiler la Convention de La Haye?”, Actualité Juridique Famille, 2012, p. 97. Th is author asks

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 103 Daniel Rietiker

A. DOES THE POSITIVE OUTCOME FOR THE APPLICANT, THE PERSON WHO ABDUCTED THE CHILD, ENDORSE HER ILLEGAL BEHAVIOUR AND INCITE OTHER PARENTS TO FOLLOW HER EXAMPLE?

One could argue that the positive outcome of the case could give rise to more child abductions and thus lead to even more situations of harm and distress for such children.43 Th e author does not share this point of view. It is true that, until the case of Neulinger and Shuruk, there had not been many – if any – child abduction cases decided by the Strasbourg Court with a favourable outcome for the abducting party. In any event, for the Grand Chamber, it was not acceptable to make the child assume the consequences of the mother’s behaviour, in spite of the fact that it doubtlessly constituted an illegal act. It has to be recalled that, in this kind of situation, the “best interest of the child” constitutes the guiding principle.44 In the instant case, in the event of his return to Israel, Noam would have suff ered from the consequences of his mother’s illegal act at two levels: fi rstly by being taken out of his social environment in which he seemed well integrated, aft er fi ve years of residence in Switzerland and, secondly, through the risk of his mother’s imprisonment if she decided to return to Israel with him. In the Grand Chamber’s view, this risk was concrete and real.45 A possible imprisonment of the mother, who was the main person of reference for the child, was considered by the Court not to be benefi cial for his development and well-being and thus not to be in his best interest,46 particularly in the light of the father’s past conduct and limited fi nancial resources, which called into question his capacity to take care of the child.47 To sum up, it can be claimed that, for the concept of the best interest of the child to be meaningful and really placed at the centre of attention in this kind of situation, the fact that the parent who abducted the child committed an illegal act will not be the most prominent factor in the balance of interests to be struck under Article 8 of the Convention.

himself whether the Grand Chamber of the Court decided to “annihilate” the Hague Convention. He is of the opinion that the Neulinger and Shuruk judgment will have very bad consequences on the legal certainty in future cases. 43 Ibid. 44 Neulinger and Shuruk, §134. 45 Ibid., §149. 46 Ibid. 47 Ibid., §150.

104 Intersentia Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010

B. CAN THE SWISS AUTHORITIES BE HELD RESPONSIBLE FOR THE DELAY IN THE CHILD’S RETURN AND, THUS, FOR THE MAIN ARGUMENT LEADING TO A VIOLATION OF ARTICLE 8 OF THE CONVENTION?

It could be claimed that the considerable passage of time and, therefore, the developments that occurred aft er the introduction of the case before the Court, could not be attributed to the Swiss authorities. As a result, Switzerland could not be blamed for the main argument in support of a violation of Article 8. Th e author does not share this opinion. One of the typical features of a child abduction case, and family cases in general, is that the situation evolves almost naturally aft er the lodging of an application with the Court. Th is was inevitably the case in Neulinger and Shuruk. It is worth recalling that the instant case was brought to Strasbourg on 26 September 2007, directed against the Swiss Federal Court’s judgment of 16 August 2007, which had ordered the child’s return to Israel at last instance. On 27 September 2007, the President of the First Section accepted the applicant’s request for interim measures under Rule 39 of the Rules of Court. He was of the opinion that it was desirable, in the interest of the parties and for the proper conduct of the proceedings before the Court, not to enforce the return of Noam.48 Th e indication of this measure, which is extremely rare in cases involving the right to respect for private and family life,49 meant that the mother and her child were entitled to stay in Switzerland pending the outcome of the procedure before the Court, and this turned out to represent a considerable period of time. Indeed, the First Section of the Court ruled on the application on 8 January 2009, confi rming the Federal Court’s judgment. Th en the applicants’ request for referral of the case to the Grand Chamber was granted by the Court in accordance with Article 43 of the Convention. Aft er having publicly heard the parties in Strasbourg, the Grand Chamber delivered its judgment on 6 July 2010, in other words almost three years aft er the introduction of the application. It is evident that the Court could not remain indiff erent faced with the developments that had occurred during this period. Th ese developments are well echoed in the Swiss provisional-measures order of 29 June 2009, by which the President of the Lausanne District Court decided, inter alia, that Noam should live with his mother in Lausanne, suspended the father’s right of access in respect of his son and granted parental authority to the mother.50 Th e President also observed that Noam’s father, in spite of his judicial combat, had never tried to see him and that he seemed to have lost interest in the instant case.51 It is noteworthy that the

48 Ibid., §5. 49 Normally, these measures are only indicated in cases where Article 2 (right to life) or Article 3 (prohibition of torture) are at stake (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §104, ECHR 2005-I). 50 Neulinger and Shuruk, §47. 51 Ibid.

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Grand Chamber took the new facts into consideration by applying to the Neulinger and Shuruk case the logic and principles that the Court had developed in expulsion cases.52 In this type of situation, the degree of integration in the State of residence is one of the decisive factors.53 Th erefore, the decisive element for the Grand Chamber was Noam’s integration and well-being in Switzerland. In short, it is certain that the passage of time and the developments that occurred aft er the introduction of the case before the Court could not be attributed to the Swiss authorities. It is nevertheless evident that, if the Court’s task, as it has oft en repeated, consists in protecting “concrete and eff ective” rights,54 it was obliged to take into consideration the entire set of facts as they existed at the time it was deciding the case.55 Nor should it be forgotten that the Court pronounced only a “hypothetical” violation of the right to respect for private and family life, namely a Soering-type violation.56 Technically speaking, Switzerland would be in breach of Article 8 of the Convention only in the event of the enforcement by the national authorities of the Federal Court’s judgment of 16 August 2007. As a result, the solution of the Grand Chamber leaves to the respondent State a margin to avoid full condemnation.

C. DOES THE COURT’S SOLUTION CONSTITUTE THE END OF THE HAGUE CONVENTION AND A CHANGE OF JURISPRUDENCE IN CASES OF CHILD ABDUCTION?

It might be argued that the Court’s ruling, by going against the Federal Court’s order for the immediate return of the child, is incompatible with the logic and principles of the Hague Convention and might therefore signifi cantly undermine its relevance for futures cases. Th is point of view is not shared by the author either. Th e Neulinger and Shuruk case raises interesting questions of interpretation of international treaties and, in particular, about how to choose, between diff erent applicable norms, the most relevant ones for the deciding a case. Th e instant case is particularly complex in that connection because it involves no less than four diff erent treaties: fi rst of all, the European Convention on Human Rights, basically the only instrument that the Court “applies” and “interprets” as such, in conformity with its Article 3257; secondly, the Hague Convention, providing for special rules on child

52 Ibid., §146. 53 Ibid. 54 See the early case of Marckx v. Belgium, Series A (1979), §31, followed by Airey v. Ireland, 9 October 1979, §24, Series A no. 32, and Artico v. Italy, 13 May 1980, §33,Series A no. 37. 55 Neulinger and Shuruk, §145, with reference to the case Maslov v. Austria [GC], no. 1638/03, §91, ECHR 2008. 56 Soering v. the United Kingdom, 7 July 1989, Series A no. 161. 57 Article 32 reads as follows: “Jurisdiction of the Court: 1. Th e jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.”

106 Intersentia Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010 abduction; thirdly, the Convention on the Rights of the Child; and, fi nally, the 1969 Vienna Convention on the Law of Treaties, laying down a number of rules governing the legal regime of international instruments (“treaty of treaties”). In such a situation, Article 31 §3 (c) of the Vienna Convention constitutes the legal basis. In accordance with this provision, a treaty must not be interpreted in a vacuum, but in harmony with general international law.58 Account shall be taken of “any relevant rules of international law applicable in the relations between the parties.” Th is method of interpretation, referred to by Koskenniemi as “systemic integration”,59 plays an important role in the jurisprudence of the Court in general,60 and in particular as far as child abductions are concerned. In this fi eld, it can be claimed that the Court’s approach, until the case of Neulinger and Shuruk, has been to look so closely into the Hague Convention that it is sometimes diffi cult to tell whether the judges were applying the European Convention on Human Rights or the Hague Convention, or both, in particular in cases where more formal aspects of the latter Convention were at stake.61 Probably the most signifi cant novelty that has been introduced by the Court in the instant case is the fact that, to the detriment of the Hague Convention, it gave more weight to the Convention on the Rights of the Child, which seems more eff ectively and directly to protect the best interest of the abducted child, in particular in situations where its return is ordered a considerable time aft er the abduction.62 Interestingly, the Court justifi ed the predominance of this treaty as a source of inspiration primarily by the diff erence in nature between, on the one hand, the Hague Convention, considered “essentially an instrument of a procedural nature”,63 and, on the other, the European

58 Neulinger and Shuruk, §131. 59 International Law Commission, Fragmentation of International Law: Diffi culties Arising from the Diversifi cation and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006, p. 206. 60 See for instance Demir and Baykara v. Turkey [GC], No 34503/97, 12 November 2008, ECHR 2009- …, where the Court clearly stated that Article 31 §3 c) VCLT imposed a legally binding obligation on the States parties (§85). See also in this regard the dissenting opinion of Judge Ziemele in the case Andrejeva v. Latvia [GC], no. 55707/00, ECHR 2009. In another article, the present author referred to this method of interpretation as the “principle of external coherence”: see D. Rietiker, “Th e Principle of ‘Eff ectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Diff erent Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Suis Generis”, Nordic Journal of International Law, vol. 79 (2010), pp. 245–277, in particular pp. 271–275. 61 See for instance the rule under Article 11 §2 of the Hague Convention according to which the authority that has not reached a decision on the return of the child within six weeks is obliged to give reasons for the delay (see Carlson v. Switzerland, no. 49492/06, 6 November 2008, §76). Also in Carlson the Court relied on the Hague Convention to denounce the shift in the burden of proof by the Swiss authorities, as well as the fact that the authorities had joined the proceedings concerning the child’s return to custody-related proceedings (ibid., §§75 and 77). 62 Neulinger and Shuruk, §145. 63 Ibid.

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Convention on Human Rights, being an “instrument of European public order”,64 whose mission is to protect “individuals on an objective basis”.65 From the author’s point of view, this new approach seems largely justifi ed in the instant case. It is nevertheless suggested here that it would be excessive to claim that the Neulinger and Shuruk case heralds the beginning of the end for the Hague Convention; on the contrary, this treaty remains entirely relevant in cases – which hopefully constitute the vast majority – where the return of the child can be carried out swift ly, namely within the one-year period provided for in its Article 12 §1.66 In spite of the new approach, it is not proposed here to consider the Neulinger and Shuruk case as a change of jurisprudence in the technical sense. It is worth mentioning in this context that the instant case benefi ted from signifi cant “extra-judicial” support by the former President of the Court, Jean-Paul Costa, who, in a speech given on the occasion of the “Franco-British-Irish Colloquy on family law” in Dublin on 14 May 2011, stated that the case did not “signal a change of direction at Strasbourg in the area of child abduction,”67 since it could clearly be distinguished from earlier cases.68 Nevertheless, for comparable cases, the Neulinger and Shuruk case constitutes an unavoidable precedent. To underline this, it can be mentioned that in the subsequent case of Raban v. Romania69 the Court largely followed and confi rmed the logic and spirit of Neulinger and Shuruk, in particular by taking into consideration the best interest of the child and by giving special weight to its social integration in the State of residence.70

64 Ibid., §133. 65 Ibid., §145. 66 Article 12 §1 of the Convention reads as follows: “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.” 67 He continues as follows: “Rather it affi rms the consonance of the overarching guarantees of Article 8 with the international text of reference, the Hague Convention. Indeed, it is hard to think of a better example of how the Strasbourg Court looks to a specifi c international text in order to inform its interpretation of more general Convention provisions (…)” (J.-P. Costa, “Th e best interest of the child in the recent case-law of the European Court of Human Rights”. www.echr.coe.int/NR/rdonlyres/E6F5D437-C49A-47C5–9772–578F54FB5C86/0/20110514_COLL OQUE_Dublin_FR.pdf. 68 Th e topic has been raised in a recent case in the UK Supreme Court: Re E (children) [2011] 2 WLR 1326, in particular §§19–26. 69 No. 25437/08, 26 October 2010. 70 Raban v. Romania, §§13, 35 et 38.

108 Intersentia Neulinger and Shuruk v. Switzerland (no. 41615/07) – Grand Chamber Judgment of 6 July 2010

D. DID THE GRAND CHAMBER OVERSTEP ITS COMPETENCE BY ACTING AS A “FOURTH INSTANCE” COURT?

Finally, in the light of what has been said so far, the question of the precise role of the Court, as an international tribunal and as such far from the realities of the concrete circumstances of a case, must be raised. Th e Court has repeated that it is primarily the task of the domestic authorities, which oft en have the direct contact with the persons concerned, to assess the best interest of the child in each individual case. Th us the authorities enjoy a certain margin of appreciation.71 Nevertheless, in the instant case, the Grand Chamber held that it was “competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, ha[d] secured the guarantees of the Convention and especially those of Article 8.”72 In the case of Raban v. Romania, mentioned above, the Court seems to have interpreted its role in a narrower fashion, stating that “it cannot question the assessment of the domestic authorities, unless there is clear evidence of arbitrariness”.73 In any event, by basing the hypothetical violation primarily on Noam’s integration in Switzerland and, at the same time, leaving open the question whether the assessment by the Swiss authorities and, in particular, by the Federal Court, was compatible with the requirements of Article 8, the majority in the Grand Chamber were able, whether or not intentionally, to avoid any reproach or insinuation that the European Court tends to act as a “fourth instance” court.74

V. CONCLUDING REMARKS

Th e main message to be retained from Neulinger and Shuruk seems to be that any “automatism” in the return of an abducted child should be avoided, and that the necessary fl exibility should be applied, in the sense of an “in concreto approach”,75 in the light of the particular circumstances of the individual case, in particular where the immediate return of the abducted child cannot be guaranteed.76

71 Neulinger and Shuruk, §138. 72 Ibid., §133, referring to the cases Bianchi v. Switzerland, no. 7548/04 22 June 2006, §92, and Carlson v. Switzerland, cited above, §73. 73 Raban v. Romania, §38, referring to Perlala v. Greece, no. 17721/04, §25, 22 February 2007, and Sisojeva and Others v. Latvia [GC], no. 60654/00, §89, ECHR 2007-II. According to Costa, p. 6, the Court will only in extreme cases directly criticise the actual decision on the merits that has been made by the competent national authorities, citing as an example Haas v. Germany, no. 11057/02, ECHR 2004-III. 74 See, by contrast, the joint separate opinion of Judges Jočiene, Sajó and Tsotsoria. 75 In the case of Raban, cited above, the Court referred expressly to this notion (§39). 76 Neulinger and Shuruk, §138, where the Court considered that “it follows from Article 8 that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable”. See, in this sense, also the second paragraph of Article 12:

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Th e best interest of the child must be the key element in any such decision, even in situations where its protection might lead to an endorsement of the illegal and reprehensible act of child abduction. Th e passage of time, a logical and objective fact, is another factor that has to be taken into consideration in the balance of interests and which, even for reasons that are beyond the control of the State, might play against the return of the child. It must nevertheless be repeated that, from the author’s point of view, the Neulinger and Shuruk case constitutes neither the end of the Hague Convention nor a change of jurisprudence in cases of child abduction. It will have to be seen if the Court’s achievements in this case, increasing the level of protection for the abducted child, will be confi rmed in the case of X. v. Latvia, which concerns the abduction of a girl from Australia to Latvia. Th e case is currently pending before the Grand Chamber.77

“Th e judicial or administrative authority, even where the proceedings have been commenced aft er the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” 77 Application no. 27853/09. In its judgment of 13 December 2011, the Th ird Section, by fi ve votes to two, considered that the Latvian courts’ approach in granting the return order lacked an in-depth examination of the relevant family situation and neglected a whole series of other factors, rendering therefore the interference disproportional within the meaning of Article 8 §2 of the Convention. On 4 June 2012, the case was referred to the Grand Chamber in accordance with Article 43 of the Convention.

110 Intersentia KAFKARIS (NO. 2) V. CYPRUS (NO. 9644/09) – 21 JUNE 2010

Theodora Christodoulidou*

On 21 June 2011 the fi rst Section of the European Court of Human Rights (“the Court”) delivered its admissibility decision in the case of Kafk aris v. Cyprus addressing the question of whether the imposition of mandatory life imprisonment in Cyprus without any possibility of further review is compatible with Article 5 §4 of the European Convention on Human Rights (ECHR).1 Th e applicant was convicted by the Limassol Assize Court of three counts of premeditated murder and was sentenced to mandatory life imprisonment pursuant to section 203 (2) of the Cypriot Criminal Code. He has remained in detention ever since. While in detention he fi led a habeas corpus application before the Cypriot Supreme Court complaining inter alia that the inability to have recourse to a court having jurisdiction over the lawfulness of his detention and the power to order his release if necessary constituted a violation of Article 5 §4 of the ECHR. His application was dismissed at fi rst instance and on appeal on the ground that these complaints were res judicata as they had already been examined by the Supreme Court in a previous habeas corpus application. Subsequently, he fi led an application before the Court which was rejected unanimously as inadmissible. Th e applicant was in fact no stranger to the court. He had previously complained that (a) the nature of the life imprisonment sentence he was serving which did not envisage any possibility or hope of release constituted inhuman or degrading treatment contrary to Article 3 of the ECHR;2 (b) his continuing detention aft er the date set for conditional release when he was fi rst convicted on the basis of the relevant Prison Regulations that were in force at the time violated Article 5 §1 of the ECHR; (c) the in eff ect retrospective imposition of a heavier penalty with regard to his sentence as a result of amendments in the relevant legislative framework was contrary to Article 7 of the ECHR and lastly (d) the imposition of mandatory life imprisonment was contrary to Article 5 §4 of the ECHR.

* LLB, LLM, PhD, Counsel for the Republic of Cyprus. 1 Kafk aris v. Cyprus, (Application no. 9644/09), decision of 21 June 2011. 2 For further analysis on this ground of complaint see Achilleas Demetriades, Silvia Bartolini and Th eodora Christodoulidou, “Case Analysis – Life imprisonment as inhuman and degrading treatment: Kafk aris v Cyprus before the European Court of Human Rights” (2008) 5 E.H.R.L.R. 656–660.

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In its judgment of 12 February 2008 the Grand Chamber of the Court held that there had been a violation of Article 7 with regard to the quality of the relevant law in force at the time the applicant had committed the off ence.1 Th e remaining complaints under Article 7, concerning the alleged retrospective imposition of a heavier penalty, as well as under Articles 3 and 5 §1 were rejected as involving no violation of the Convention. Finally, the complaint under Article 5 §4 was not substantively examined as it had been raised for the fi rst time before the Grand Chamber and, as such, too late.2 In a powerful concurring opinion Sir Nicolas Bratza, now President of the Court, observed that he considered that the time has come when the Court should clearly affi rm that the imposition of an irreducible life sentence which was set to last for the duration of the life of the off ender and not allowing any hope or prospect of release is in principle inconsistent with Article 3 of the Convention. However, having regard to the applicable statutory regime in Cyprus, it could not be said that this was the applicant’s position. In particular, in Cyprus it remained within the discretion of the President of the Republic, on the recommendation of the Attorney General to release a person. However, the Court could not address the lack of any procedural safeguards governing such exercise of discretion given that the complaint under Article 5 §4 had not been fully argued before the Court. Sir Nicolas observed that “(t)he question whether conditional release should be granted in any individual case must, in my view, principally depend on an assessment of whether the term of imprisonment already served satisfi es the necessary element of punishment for the particular off ence and, if so, whether the life prisoner poses a continuing danger to society. As the Staff ord judgment makes clear, the determination of both questions should in principle be in the hands of an independent body, following procedures containing the necessary judicial safeguards, and not of an executive authority.” Th e complaint under Article 5 §4 which was rejected as falling outside the scope of the Grand Chamber´s examination was the subject matter of Kafk aris’ second application. Th e core of the applicant’s submissions was that the mandatory nature of life imprisonment in Cyprus coupled with the lack of the possibility of release violated Article 5 §4 of the ECHR. He suggested that Cyprus has a “tariff ” system akin to that under English law and that, as he had served the punitive period of his sentence, he was entitled under Article 5 §4 to a periodic review of his continued detention.3 Th e Cypriot Government submitted that the review required by Article 5 §4 had been incorporated in the Assize Court’s judgment fi nding the applicant guilty and imposing a mandatory life sentence.4 Accordingly no further review of the lawfulness of the applicant’s detention was required. Under the relevant domestic

1 Kafk aris v Cyprus (Application no. 21806/04), judgment of 12 February 2008. 2 Kafk aris v Cyprus, judgment, paragraph 124. 3 Ibid. 4 Ibid., paragraph 51.

112 Intersentia Kafk aris (no. 2) v. Cyprus (no. 9644/09) – 21 June 2010 law, mandatory life imprisonment was imposed automatically as punishment for the off ence of premeditated murder irrespective of considerations pertaining to the dangerousness of the off ender.5 Th e Court held that where a person is deprived of his liberty pursuant to a conviction by a competent court, the supervision required by Article 5 §4 is incorporated in the decision by that court at the close of judicial proceedings. Accordingly, no further review is required and this applies equally to mandatory life sentences.6 However, in cases where the grounds justifying the person’s deprivation of liberty are “susceptible to change with the passage of time” Article 5 §4 would require the possibility of recourse to a competent court satisfying the requirements of Article 5 (4) of the Convention.7 Under the relevant Cypriot legislation, a mandatory life imprisonment is imposed automatically under the Criminal Code as the punishment for premeditated murder irrespective of considerations pertaining to the dangerousness of the off ender. Accordingly, the applicant’s continuing detention is pursuant to his conviction and in accordance with the mandatory life sentence imposed on him by the Assize Court.8 No further review of the lawfulness of the conviction was required given that the lawfulness was rendered by the conviction and sentence and carried through to the end of the sentence’s term.”9 In any event, the Court took notice of recent amendments to the Prison Law of 1996 (L. 37(I)/2009)10 providing for the establishment of a Release Board, which aff orded the applicant the possibility of periodic review of his continued detention.11

I. ANALYSIS

Th e decision of the Court is important for clarifying that where a sentence of detention is imposed by a competent court within the meaning of Article 5 §1 (a) no further review is necessary. In addition, the Court confi rmed that the nature of mandatory life imprisonment in Cyprus was not aff ected in spite of the recent amendments to the Prison Law of 1996 establishing the Release Board. Regarding the fi rst issue, there has been settled case law to the eff ect that where sentences of detention are imposed by competent courts, supervision of the lawfulness of continued detention is incorporated in the court’s decision at the close

5 Ibid. 6 Ibid., paragraph 58. 7 Ibid. 8 Ibid., paragraph 59. 9 Ibid., paragraph 60. 10 Law amending the Prison Law, Law 37(I)/2009 [Νόμος που τροποποιεί τους περί Φυλακών Νόμους]. 11 Kafk aris decision, paragraph 62.

Cyprus Human Rights Law Review, Volume 1 (2012), No. 1 113 Th eodora Christodoulidou of judicial proceedings. In De Wilde, Ooms and Versyp (“Vagracy”) v. Belgium case the Court had to decide whether the applicants’ deprivation of liberty ordered by the magistrates’ orders, exercising administrative functions, violated Article 5 §4 considering that the applicants did not have a remedy at their disposal before a court which, aft er the initial decision on detention, could assess whether their detention was still lawful and order their release if necessary. In upholding the applicants’ arguments the Court recognised that:

“[W]here the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5 §4 obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 §4 is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced aft er conviction by a competent court” (Article 5 §1 (a) of the Convention).12

Th e applicant in the case of Wynne v. United Kingdom13 was convicted of murder and sentenced to life imprisonment. Aft er his release on licence he killed another person. For that off ence he was convicted of manslaughter and received a discretionary life sentence. His life licence was revoked. Having spent the tariff in respect of his fi rst conviction he argued that the only basis for his continued detention was the discretionary sentence. He alleged a violation of Article 5 §4 claiming that he was unable to have the continued lawfulness of his detention reviewed by a court. In rejecting the applicant’s submissions, the Court held that as regards mandatory life sentence the guarantee of Article 5 §4 was satisfi ed by the original conviction and sentencing and no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of the life licence was necessary.14 However, in its judgment in Staff ord v. United Kingdom the Court took a diff erent view.15 It decided that the mandatory life sentence could no longer be regarded as imprisonment for life as a punishment. Th e Court considered that in reality under domestic legislation, detention of those convicted to mandatory life imprisonment was partly punitive (the tariff ) but also partly preventative (post-tariff detention). Th e applicant in Staff ord was a post-tariff mandatory lifer. Th e Secretary of State had decided not to follow the Parole Board’s recommendation in his case that he be released, on the ground that there was a risk that he would commit further non- violent imprisonable off ences. Th e Court found that the applicant’s rights under Articles 5 §1 and 5 §4 had been violated because his continued detention, subsequent

12 De Wilde, Ooms and Versyp (“Vagrancy”) v. Belgium, no. 2832/66; 2835/66; 2899/66, judgment of 18 June 1971, paragraph 76. 13 Wynne v. United Kingdom, no. 15484/89, judgment of 18 July 1994. 14 Wynne v. United Kingdom, no. 15484/89, judgment of 18 July 1994, paragraph 36. 15 Staff ord v. United Kingdom, no. 46295/99, judgment of 28 May 2002.

114 Intersentia Kafk aris (no. 2) v. Cyprus (no. 9644/09) – 21 June 2010 to the expiry of the tariff , was based on the Secretary of State’s determination of risk of re-off ending. Th is continued detention could not be justifi ed on the ground that it was punishment for the original murder, since his t ariff had expired. Th e Court held that aft er the expiry of the tariff , continued detention depended on elements of dangerousness and risk associated with the objectives of the original sentence of murder. Th ose elements might change with the course of time, and thus new issues of lawfulness arose requiring determination by a body satisfying the requirements of Article 5 §4. Th ose requirements were not satisfi ed, since the applicant’s continued detention was not reviewed by a body with the power to release or following a procedure containing the necessary judicial safeguards.16 Th e Court in the case of Kafk aris clearly distinguished the relevant regime in the UK from that in Cyprus regarding mandatory life imprisonment. Th e Court found that Kafk aris’ sentence was not divided into punitive and security period as was the case in Staff ord.17 Under Cypriot law his mandatory life sentence was imposed automatically under the Criminal Code as punishment for the off ence of premeditated murder irrespective of considerations pertaining to his dangerousness. Th erefore, his continuing detention was pursuant to his conviction and in accordance with the mandatory life sentence imposed by the Assize Court. In the view of the Court, the recent introduction of the possibility of review by the Release Board under the law amending the Prison Law (L. 37(I)/2009) did not change the punitive nature of the life-sentence imposed by the Assize Court on conviction. Th e Release Board is competent to examine applications of conditional release of prisoners including those convicted to life imprisonment.18 Its jurisdiction, was treated by the Court, at least implicitly, as relevant to issues concerning the execution of sentence. As noted in the Explanatory Report to the Law introducing the relevant amendment:

“…the Board [will examine] applications for conditional release on parole by prisoners for continuing to serve the remaining part of their sentence outside prison. … conditional release on parole refers to the execution of the punishment”.19

16 Ibid., paragraphs 87–90. 17 Kafk aris decision, paragraph 59. 18 Section 14 A (1) of the Prison Law (as amended) provides that a prisoner who has been sentenced to life imprisonment and has served at least twelve years of the sentence can apply to the Release Board for conditional release. 19 Emphasis added.

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