Issue 38 August 2007 - Human Rights Stop Press
The Scottish courts have been relatively quiet with the Court of Session vacation. Even the criminal courts have not produced much that is noteworthy in human rights terms over the last month or so.
Of note is that the case of Somerville v Scottish Ministers has now been argued before the House of Lords. Readers will recall that this case involved the issue of whether prolonged segregation of prisoners breached their human rights. It also deals with the very important issue of whether the one year time bar for damages claims brought under the Human Rights Act applies also to human rights claims under the Scotland Act 1998, and raises the issue of whether proportionality is a ground for judicial review at common law in the same way that it is a ground of review in ECHR cases. As always, the Strasbourg Court has been busy in a wide range of areas.
In O'Halloran v United Kingdom (App. No.15809/02) and Francis v United Kingdom (App. No.25624/02) the Grand Chamber of the European Court of Human Rights held, by 15 votes to 2, that the nature of information sought by a notice of intended prosecution under s.172 of the Road Traffic Act 1988 for speeding did not destroy the right to remain silent and the privilege against self-incrimination. The applicants complained that their conviction for speeding in circumstances where they were compelled to confirm whether they were the driver of the vehicle in question violated Arts 6(1) and 6(2).
The Court did not accept the applicants' argument that the right to remain silent and the right not to incriminate oneself were absolute rights, and that to apply any form of direct compulsion to require an accused person to make incriminatory statements against her or his will of itself destroyed the very essence of that right.
It was not the case that any direct compulsion would automatically result in a violation of the Convention. What constituted a fair trial could not be the subject of a single unvarying rule, but had to depend on the circumstances of the particular case.
In order to determine whether the essence of the applicants' right to remain silent and privilege against self-incrimination was infringed, the Court focused on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.
They were informed that, as registered keepers of their vehicles, they were required to provide the full name and address of the driver at the time and on the occasion specified.
They were each informed that failure to provide the information was a criminal offence under s.l72 of the 1988 Act. The penalty for failure to give information was a fine of up to £1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence.
The Court accepted that the compulsion was of a direct nature. It also noted that anyone who chose to own or drive a car knew that they subjected themselves to a regulatory regime, imposed because the possession and use of cars was recognised to have the potential to cause grave injury. Those who choose to keep and drive cars could be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, those responsibilities included the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.
A further aspect of the compulsion applied in the applicants' cases was the limited nature of the inquiry which the police were authorised to undertake. Section 172(2) (a) applied only where the driver of the vehicle was alleged to have committed a relevant offence, and authorised the police to require information only as to the identity of the driver.
In cases where the coercive measures of s.l72 of the 1988 Act were applied, the Court noted that by s.l72( 4) no offence was committed under s.172(2) (a) if the keeper of the vehicle showed that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence was therefore not one of strict liability, and the risk of unreliable admissions was negligible.
As to the use to which the statements were put, Mr O'Halloran's statement that he was the driver of his car was admissible as evidence of that fact by virtue of s.12(1) of the Road Traffic Offenders Act 1988, and he was duly convicted of speeding.
At his trial, he attempted unsuccessfully to challenge the admission of the statement under ss.76 and 78 of the 1984 Act.
It remained for the prosecution to prove the offence beyond reasonable doubt in ordinary proceedings, including protection against the use of unreliable evidence and evidence obtained by oppression or other improper means, but not including a challenge to the admissibility of the statement under s.172, and the defendant could give evidence and call witnesses if he wished.
The identity of the driver was only one element in the offence of speeding, and there was no question of a conviction arising in the underlying proceedings in respect solely of the information obtained as a result of s.172(2) (a).
As Mr Francis refused to make a statement, it could not be used in the underlying proceedings, and indeed the underlying proceedings were never pursued. The question of the use of the statements in criminal proceedings did not arise, as his refusal to make a statement was not used as evidence: it constituted the offence itself.
Having regard to all the circumstances, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under s.172, the Court considered that the essence of the applicants' right to remain silent and their privilege against self incrimination had not been destroyed.
Accordingly, the Court held by a majority that there had been no violation of Art.6, and held unanimously that no separate issue arose under Art.6(2).
In a case which may have importance for persons of Roma origin who seek refuge in the United Kingdom and who alleged a lack of state protection, the case of Cobzaru v Romania (App. No.48254/99) is of interest. There, the Court found a violation of Art.3 concerning the ill treatment of the Roma applicant by the police and a violation of Art.3 concerning the inadequate investigation into the applicant's allegations of ill-treatment. Art.13 of the Convention (right to an effective remedy) had been violated, as had Art.14 concerning the Romanian authorities failure to investigate possible racial motives in the applicant's ill-treatment and their attitude during the investigation. The applicant had alleged that he had been assaulted by three police officers, however the prosecutor refused to open a criminal investigation in respect of the applicant's complaints against the police officers on the ground that the facts had not been established. The prosecutor noted that both the applicant and his father were known as "antisocial elements prone to violence and theft", in constant conflict with "fellow members of their ethnic group". The prosecutor considered that the statement given by another person could not be taken into consideration since she was also a gypsy-and, moreover, the applicant's cousin and therefore her testimony was insincere and subjective. The applicant appealed but the Chief Prosecutor dismissed the appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant, "a 25-year old gypsy", "well known for causing scandals and always getting into fights". The applicant appealed unsuccessfully and then applied to Strasbourg. The Strasbourg Court held that these statements clearly showed that there had been racial discrimination in this case.
In FC Mretebi v Georgia (App. No.38736/04) the applicant, FC Mretebi, is a football club which was founded in 1988 in Tbilisi. In 1992 the applicant club and the football club Dinamo FC, both members of the Georgian Football Federation ("GFF"), agreed on the transfer of a footballer to Dinamo FC. Following the footballer's transfer from Dinamo FC to an English club, Dinamo FC owed the applicant EUR 691,000 but never paid that sum. After years of proceedings against Dinamo FC before the Federation Internationale de Football Association ("FIFA"), the applicant was ultimately awarded EUR 236,000 in March 2000. In January 2001, Dinamo FC fully paid the debt. Considering that that amount was insufficient, the applicant brought proceedings for damages against the GFF before the domestic courts. Those proceedings were unsuccessful, as the Supreme Court refused to grant the applicant's request for exemption from the court fees. According to the applicant, its inability to receive proper compensation from Dinamo FC, as well as the high costs it had incurred in the domestic and international proceedings against Dinamo FC and the GFF, had resulted in its financial collapse.
Relying in particular on Art.6(1) the applicant complained that it was denied access to a court. The European Court agreed and observed in particular that the Supreme Court failed to secure a proper balance between, on the one hand, the interests of the State in securing reasonable court fees and, on the other hand, the interests of the applicant in vindicating its claim through the courts. It concluded that there had been an unjustified denial of access to court and therefore held by four votes to three that there had been a violation.
In Zaicevs v Latvia (App.No.65022/01) there was a violation of the relatively little used Art.2 of Protocol No.7 concerning the right of appeal in criminal matters. The applicant was Vasilijs Zaicevs, a former national of the ex-USSR and a "permanently resident non-citizen" of Latvia. Mr Zaicevs is president of the non-governmental organisation Aizstavis ("Defender") the aim of which, according to its articles of association, is to protect the rights of various categories of vulnerable persons. In 2000 the applicant accompanied Mrs N.L. to Liepaja District Court so that she could obtain from the judge, Mrs M.J., a copy of the record of the hearing held a few days previously in her civil case. The judge refused to issue them with the document and ordered them to leave her office. M.J. subsequently alleged in an administrative offence report that the applicant had burst into her office uninvited and had rudely demanded information to which he was not entitled, in breach of the rules of conduct within the precincts of the court. By a final order the applicant was sentenced to three days' "administrative detention" for contempt of court. After serving his sentence he wrote several letters to the public prosecutor's office criticising the proceedings leading to his conviction. He received no reply.
The applicant alleged in particular that the proceedings leading to his conviction had breached the fundamental guarantees of Art.6. Relying also on Art.2 of Protocol No.7, he complained of the lack of a remedy in Latvian law by which to complain of his conviction.
The European Court considered that, taken overall, the proceedings at issue could not be said to have been "unfair", and held unanimously that there had been no violation of Art.6. It further observed that the Latvian Constitutional Court in its judgment had found the second paragraph of Art.279 of the Administrative Offences Code to be contrary, among other things, to Art.2 of Protocol No.7, and had declared it null and void. However, the Court took the view that that change had had no impact on the situation of the applicant, who had been exposed to the full effects of the provision in question. It therefore held unanimously that there had been a violation of Art.2 of Protocol No.7 and awarded Mr Zaicevs EUR 1,000 for non-pecuniary damage and EUR 200 for costs and expenses.
Chemodurov v Russia (App. No.72683/01) is a case which established a violation of Art.l0 (freedom of expression). The case concerned Mr Chemodurov's complaint about defamation proceedings brought against him following an article he wrote which was published in July 2000 in the Kurskiy Vestnik newspaper. The article criticised Governor Rutskoy and what he considered to be his "abnormal" reaction to allegations concerning misappropriation of regional funds. In October 2000 the domestic courts, although satisfied with the accuracy of the facts in the article, held that the use of the word "abnormal" was insulting and damaging to the Governor's reputation and ordered the applicant to pay the Governor compensation. He relied on Art.10. The European Court considered that the term "abnormal" should have been understood in its context, that is to say the description of a State official's conduct which had not appeared appropriate in the circumstances. Indeed, the applicant had made it clear in his article that he had been referring to the Governor's conduct and not his private life or mental health. Given the role of journalists to provide information and ideas of concern to the public, even when they might offend, shock or disturb, the Chemodurov v Russia Court found that using the word "abnormal" had not exceeded the acceptable limits of criticism. Moreover, as a prominent politician, the Governor should have displayed a greater degree of tolerance to criticism. The Court concluded that the domestic courts' decisions had not been based on an acceptable assessment of the relevant facts and that the interference with the applicant's freedom of expression had not been "necessary in a democratic society". Accordingly, the Court held unanimously that there had been a violation of Art.10 and awarded the applicant EUR 50 for pecuniary damage and EUR 1,026 for costs and expenses.
In Barankevich v Russia (App. No.10519/03) there was a violation of Art.11 (freedom of assembly and association). The applicant is the pastor of the "Christ's Grace" Church of Evangelical Christians. In September 2002 Mr Barankevich was refused permission to hold a service of worship which he intended to hold in a park in Chekhov. He consequently brought proceedings against Chekov Town Council for having violated his right to freedom of religion and assembly. His claim was ultimately dismissed by the domestic courts in November 2002 on the ground that the applicant's church was different from those of the majority of local residents and a service of worship could have led to discontent and public disorder.
The applicant complained under Art.9 (freedom of thought, conscience and religion) and Art.11 that he had not been allowed to hold a service of worship in public. Relying on Art.14 (prohibition of discrimination), he further complained that he was treated differently from members of other religious denominations.
The European Court emphasised the fact that the Evangelical Christian religion being practised by a minority of Chekov's residents could not justify an interference with their rights. It was also without question that the religious assembly planned by the applicant had been of a peaceful nature. Even assuming that there had been a threat of violence from a counter-demonstration, the domestic authorities had a wide choice of means which they could have used to facilitate the holding of the assembly without disturbance. The Court therefore considered that the ban had not been "necessary in a democratic society" and held, unanimously, that there had been a violation of Art.11 interpreted in the light of Art.9. Given that conclusion, it further held that it was not necessary to examine the applicant's complaint under Art.14. The applicant was awarded EUR 6,000 in respect of non-pecuniary damage.