New ECtHR judgment on terrorism legislation and respect for private life: is Beghal v UK the conclusion to an old chapter, or the beginning of a new one?

On 28 February 2019, the European Court of Human Rights gave its judgment in Beghal v United Kingdom, in which it unanimously held that there had been a violation of Sylvie Beghal’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights (“ECHR”).

The case concerns the power of police to stop and question travellers at ports and airports in Britain without the requirement for reasonable suspicion.

This post will provide a short description of the facts of the case and briefly set out the legal arguments put forward by both sides. It will then argue that, as some areas of the current terrorism legislation remain largely untested (e.g. power to seize sensitive electronic information outside the journalistic context), and with the introduction of new powers in the recent Counter-Terrorism and Border Security Act 2019, Beghal is unlikely to be the end of the story on no-suspicion stop and question powers.

The facts in Beghal

The applicant, Sylvie Beghal, is a French national living in Leicester, United Kingdom. On 4 January 2011, she arrived at East Midlands Airport following a visit to her husband, Djamel Beghal, who is in prison in France for terrorism offences. Upon arrival, she was stopped under the infamous Schedule 7 of the UK Terrorism Act 2000, a piece of counter-terrorism legislation which gives British police and immigration officers the power to stop, search and question passengers at international points of border-crossing (ports, airports and international rail terminals).

Such powers are to be exercised for the purpose of determining whether the person “appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism” – and can be exercised without any suspicion of involvement of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.

After being stopped, Sylvie Beghal was taken to an interrogation room and given the opportunity to call a lawyer. She was searched, and her luggage was searched too. She was told that she was not under arrest, but would be questioned under Section 7. She told the officers that she would only answer questions after her lawyer arrived, but the lawyer took a few hours to arrive and the officers started the examination. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions. She was later charged with wilfully failing to comply with a duty under Schedule 7.

Legal arguments: was the interference ‘in accordance with the law’?

The fact that there had been an interference with Ms Beghal’s right to respect for private life was not contested by the UK Government. The question, therefore, was whether such an interference was “in accordance with the law”.

The applicant argued that it was not in accordance in the law, because the powers under Schedule 7 were not sufficiently circumscribed and did not provide adequate safeguards against abuse:

  • The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.
  • In Gillan and Quinton v UK, sections 44 and 45 of the 2000 Act (which set out a power to stop and search exercisable in relation to any person anywhere in the street), had already been held not to be in accordance with the law despite having a narrower purpose and scope of application, and despite not allowing as intrusive a search as the one permitted under Schedule 7.
  • The Code of practice in force at the time of the applicant’s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights.
  • Although individuals were entitled to consult a solicitor, that did not prevent arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of their solicitor anyway (which is what happened to Sylvie Beghal).
  • There was no requirement for officers to explain the reasons why a particular individual has been selected for examination, and no obligation to record such reasoning either.
  • Because the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise), the scope for using judicial review proceedings to challenge the decision was extremely limited.

The Government argued the following:

  • The power was focussed on entry and exit points to the United Kingdom, which were the first line of defence against the entry and exit of terrorists, and as such they provided a unique opportunity to target checks where they were likely to be the most effective.
  • There were sufficient effective safeguards in the operation of the scheme to meet the requirements of legality. The Government cited a list of factors demonstrating the existence of such safeguards, such as the restriction on the duration of the interview and on the type of search, the availability of judicial review, and the continuous supervision of the scheme by an Independent Reviewer.
  • There was no evidence that the powers had been used in a racially discriminatory fashion, and such a use was expressly prohibited by the Code of Practice.

The Court found that the legislation in force at that time had not been sufficiently circumscribed, nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions without being formally detained or having access to a lawyer.

To reach this conclusion, the Court considered the following factors:

  1. Geographic and temporal scope of the powers: The Court found that the wide scope of application of Schedule 7 (applying at all ports and border controls) did not in itself run contrary to the principle of legality. Consideration was also given to “the very real threat that Contracting States face on account of international terrorism” and the need to control international movement of terrorists.
  2. Discretion afforded to the authorities in deciding if and when to exercise the powers: The existence of a requirement of reasonable suspicion is an important factor in assessing the lawfulness of a power to stop and question or search a person, but the lack of such a requirement does not in itself render the exercise of the power unlawful. The Court gives Member States a wide margin of appreciation in matters relating to national security, and noted that there was clear evidence that the Schedule 7 powers have been “of real value in protecting national security”. Interestingly, the Court seemed to make a case against the requirement for reasonable suspicion, by pointing out that such a requirement could actually lead to terrorists avoiding the deterrent threat of Schedule 7 “by using people who had not previously attracted the attention of the police (“clean skins”)” and noting that “the mere fact of a stop could alert a person to the existence of surveillance”.
  3. Any curtailment on the interference occasioned by the exercise of the powers: Individuals could be subjected to examination for up to 9 hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer. The only ‘curtailment’ at the time of the applicant’s examination was therefore this 9-hour time limit.
  4. Possibility of judicial review: The Court found that the absence of a requirement of suspicion made it difficult to challenge the lawfulness of the decision to exercise Schedule 7 powers.
  5. Independent oversight of the use of the powers: The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. Although the Court noted the Reviewer’s important role in providing unbiased, scrutinised oversight, it found that such oversight was not capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime (noting, for example, that a number of important recommendations had not been implemented by the UK Government).

Do recent changes to Schedule 7 powers make Beghal v United Kingdom moot?

The writing had been on the wall for the most extended of Schedule 7 powers long before the Court’s judgment in Beghal v United Kingdom. The powers were facing a number of legal challenges and, in 2013, the UK Supreme Court raised serious concerns about the potential for “serious invasions of personal liberty” due to a lack of safeguards.

As a result, in 2014 significant changes were made to Schedule 7 with the aim of reducing the potential scope for interference with individuals’ rights while retaining operational effectiveness. This included limiting the maximum period of interview from 9 hours to 6 hours, providing for specific training for officers, and providing for specific protection for information benefiting from attorney-client privilege or journalistic material.

In the 2016 Miranda judgment, although the exercise of the Schedule 7 stop power in relation to Mr Miranda was deemed lawful, the Court of Appeal found that the stop power, if used in respect of journalistic information or material, was incompatible with Article 10 of the ECHR (freedom of expression) as it was not prescribed by law.  Again, judges warned that Schedule 7 appeared too arbitrary and lacked safeguards.

It would be easy to dismiss Beghal v United Kingdom as moot: Britain has changed its law since the relevant events occurred, hasn’t it? Indeed, throughout the judgment, the Court confirms it has only had regard to the Schedule 7 power to examine “as it was at the time the applicant was stopped” (see paragraph 110).

The UK Government is likely to argue that any flaw in the legislation has been remedied already, but the rest of paragraph 110 tells another story: “[The Court] has not considered the amendments which flowed from the Anti‑Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person’s rights under the Convention” (emphasis added).

This warning wasn’t lost on former Independent Reviewer David Anderson QC, who noted on Twitter: “the end of paragraph 110 contains a significant sting in the tail, flagging for future attention the use of more advanced no-suspicion powers not used in this case, e.g. to detain and to download devices”.

Data mining of electronic devices under Schedule 7 remains largely untested

In 2017, Muhammad Rabbani, the director of campaigning group Cage, was prosecuted after refusing to hand over the passwords of his mobile phone and computer when stopped by police at Heathrow Airport.

The case escalated to the Court of Appeal, with Rabbani’s lawyers relying on the Miranda precedent to argue that the protection owed to journalistic material applied to other categories of protected information. This argument was dismissed by the Court of Appeal, with Lord Justice Irwin noting that the Miranda decision was “expressly and narrowly” centred on Article 10 of the ECHR and freedom of expression for journalism, and that it was “by no means self-evident that identical or (or even similar) considerations arise in respect of other categories of excluded or special procedure information”.

Following the Court of Appeal decision in May 2018, Rabbani said he would appeal the decision at the UK Supreme Court. In an era where phones and computers give individuals the means of carrying a large number of potentially sensitive documents, the case raises important questions regarding the right to privacy and the limits of data mining of electronic devices in the name of counter-terrorism.

Regulating the retention of electronic data downloaded from devices is something that was indeed on the radar of Britain’s terrorism watchdog. In his most recent report dated October 2018, then Independent Reviewer Max Hill QC notes a sharp drop in the number of port stops: from 60,000 in 2012 down to approximately 16,000 in 2017. This remarkable trend is caused no doubt by multiple factors, “which must include better capture of passenger manifest data across the UK, and better use of targeting techniques, even though reasonable suspicion is still not required for a stop”.

But the numbers reveal something else: the proportion of detentions resulting from such examinations is rising. In 2012, around 1% of examinations led to detention. In 2017, a staggering 10.4% of examinations resulted in detention. Although this is not a particularly worrying pattern, and it might in fact simply be a result of rising efficiency in data capturing and targeting, the report nonetheless warns that “important questions remain, including the ongoing issue of satisfactory rules governing the retention of both biometric data taken from individuals and electronic data downloaded from their devices”.

New legislation enacted in February 2019: Schedule 7-type powers for non-terrorist ‘hostile acts’

Finally, one can expect renewed debate over no-suspicion stop and question powers in light of the new Counter-Terrorism and Border Security Act 2019 (the “2019 Act”), which was signed into law on 12 February 2019.

Defining ‘terrorism’ is always a tricky exercise. The 2018 Novichok poisonings in Salisbury, and the question of the perpetrators and their origin, or the question of state sponsorship, have inflamed the issue of what terrorism means – should counter-terrorism legislation include powers to deal with non-terrorist acts that nevertheless threaten the nation?

In reaction to this, the new 2019 Act provides a separate legal regime to deal with “hostile acts”, i.e. non-terrorist acts which threaten national security, threaten the economic well-being of the United Kingdom in a way relevant to the interests of national security, or constitute an act of serious crime. Schedule 3 of the 2019 Act provides for stop and question powers that the Government explicitly notes are “closely modelled on Schedule 7 of the Terrorism Act 2000”.

When it was still only a bill going through the parliamentary process, the 2019 Act was scrutinised by the relevant committee on human rights, which expressed concerns about the stop and search powers at ports and borders:

We expressed concern that Schedule 3 provides for interference with the rights to private life, freedom of expression, and property, yet the powers it gives are dangerously broad. In particular, the definition of ‘hostile act’ is extremely wide and there is no threshold test of suspicion required before a person is detained and examined. In its response, the Government acknowledges that the definition of hostile activity is broad but states that “it is required to encompass the spectrum of threats currently posed to the UK by hostile states, which includes espionage, subversion and assassination”. We would be grateful for more clarity of the Government’s position on the necessity of this ‘no suspicion’ power.

The committee suggested the insertion of a threshold of reasonable suspicion and a requirement that the exercise of the power must be necessary and proportionate. This fell on deaf ears, and the suggested amendments were not included in the draft bill (now the 2019 Act).

Conclusion

In conclusion, Beghal v United Kingdom is unlikely to be the end of the story in terms of challenges to counter-terrorism legislation. With the creation of new stop and search powers, and the unresolved question of the legality of the more advanced powers (such as the power to detain and search electronic devices), Britain would benefit from strong, independent oversight of its counter-terrorism legislation. Shame the position of Independent Reviewer of Terrorism Legislation has been vacant since October 2018, with no indication as to when the next ‘terrorism watchdog’ will be appointed and despite repeated calls from former reviewers.

 

 

Trafficking of Human Beings at the ECtHR: The Importance of Using Article 14 to Broaden the Protection of Women and Girls (Part I)

Two Spanish cases currently pending before the European Court of Human Rights illustrate gaping lacunae in the protections extended to victims of trafficking on the continent.  They also, however, offer a unique opportunity to broaden this protection by recognizing, for the first time, that the trafficking of human beings is a form of slavery and violence that constitutes discrimination against women and girls. By linking trafficking and discrimination (in the same way that it linked domestic violence with gender discrimination in cases like Opuz vs. Turkey), and thereby requiring that States appropriately protect victims of trafficking and refrain from further discriminatory treatment against them, the Court would provide much more robust safeguards for some of the most vulnerable women in Europe.

The insufficient protection to trafficked women under the European Convention of Human Rights

The Convention guarantees basic rights and freedoms and recognizes “the inherent dignity of all human beings.” The enjoyment of those rights “shall be secured without discrimination on any ground.” Trafficking, for its part, has been recognized as a humanitarian crisis. Trafficking is the only organized crime expressly prohibited in the EU Charter of Fundamental Rights. The Council of the European Union agreed on a Framework Decision on combating trafficking in 2002, adopting an action plan on best practices, standards, and procedures for tackling the phenomenon in 2005. Further plans have been adopted by the Committee of Ministers of the Council of Europe and the Parliamentary Assembly of the Council of Europe. Statistics bear out the fact that trafficking is widespread and well entrenched on European soil. European Commission statistics from 2014 indicate that 30,146 victims were found across the 28 Member States. 80 percent of registered victims are female, and approximately 35 percent arrived from outside the EU. More than 1,000 child victims were trafficked for sexual exploitation. Yet the Court has only heard twelve cases involving allegations of trafficking since 2005, eight of which were ruled inadmissible. The result is a legal regime that could do more to protect the high numbers of trafficked persons arriving in Europe. With regards to its trafficking jurisprudence, the Court has explicitly recognized three main positive obligations on States, all derived from Article 4.

The first is an obligation to put into place an appropriate legislative and administrative framework. It requires that States “penalize and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour,” with additional requirements for effectively preventing trafficking and protecting victims. In Rantsev v. Cyprus and Russia, the Court elaborated on Article 4’s requirements, holding that member States must “put in place adequate measures regulating businesses often used as a cover for human trafficking,” and that immigration rules must “address relevant concerns relating to encouragement, facilitation, or tolerance of trafficking.”

The second requirement involves the positive obligation to take operational measures to protect victims and potential victims of trafficking. The obligation only arises, however, if State authorities were aware, or should have been aware, of “circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited…”. The obligation is tempered, so that the Court will not impose an “impossible or disproportionate burden on the authorities.”

Thirdly, and lastly, the Court has held that Article 4 involves a procedural obligation to investigate where there is a credible suspicion that an individual’s rights . . . have been violated.” Any investigation must be effective, meaning that it must be independent from those implicated in events, and must be capable of leading to the identification and punishment of those responsible. The investigation must also be prompt and reasonably expeditious, with urgency attached where the possibility of removing the individual from the harmful situation is available.

Continue reading

Go On! ESIL-ECtHR conference ‘The European Convention on Human Rights and the Crimes of the Past’ (deadline 19 Feb.)

logo2The European Court of Human Rights and the European Society for International Law have organized a one-day conference on “The European Convention on Human Rights and the Crimes of the Past on February 26 in Strasbourg, France. The deadline to register for the program, which will include presentations by ECtHR judges and international law scholars, is February 19. To register, email ESIL-ECHR-Conf2016 [at] echr.coe.int.

Greater clarity on intermediary liability may not be a win for free expression online

The Delfi v. Estonia decision, issued in June of 2015 by the European Court of Human Rights, marked a low point in that court’s caselaw regarding freedom of expression on the Internet. This week, a new European Court ruling slightly qualifies and narrows the scope of Delfi. The outcome of the new decision is not as detrimental as one could have anticipated; however, it looks to be another step toward requiring European Internet intermediaries to monitor user-generated content on their sites.

Background: The Delfi decision of 2015

In Delfi, the Grand Chamber ruled that holding an online news portal liable as the publisher of unlawful comments posted by its users was consistent with the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights. It distinguished a similar ruling by the First Section of the Court, which upheld the imposition of liability for comments that were deemed defamatory. For the Grand Chamber, the comments rose to the level of hate speech and incitement to violence, which were clearly unlawful and particularly harmful forms of speech.

The Grand Chamber declined to inform its Delfi analysis with caselaw interpreting the EU E-Commerce Directive and other relevant international instruments on the right to freedom of expression. According to these materials, a broad range of intermediaries should be shielded from liability for content that they transmit or host. The E-Commerce Directive and other materials indicate that intermediaries should not have a duty to monitor user-generated content on their sites, and decisions regarding liability should examine whether the intermediary had actual knowledge of unlawful material.

Although the European Court’s jurisdiction is limited to interpreting the European Convention and its protocols, I have argued in a forthcoming piece that the Delfi decision undermines legal certainty regarding intermediary liability in Europe and is problematic for the right to freedom of expression (see similar views here, here and here). The Court specified that its reasoning in Delfi only applied to “a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them,” excluding most social networking services. Nevertheless, it is increasingly difficult to distinguish intermediaries on the basis of whether they provide or “edit” content.

The Court’s latest decision on the liability of an online intermediary

In Magyar Tartalomszolgaltatok Egyesulete and Index.hu Zrt v. Hungary (MTE), the Fourth Section of the European Court qualified Delfi and explained that Internet content providers will be held to the highest standards of conduct when hate speech or incitement to violence is posted on their sites. Because the comments in question in this case were merely defamatory, Hungary’s decision to hold the applicants – a self-regulatory body of Internet content providers and a major Internet news portal – strictly liable constituted a violation of Article 10 of the European Convention (a welcome contrast to the First Section’s holding in the 2013 Delfi decision).

Continue reading

The European Court of Human Rights rules on surveillance in Russia

On December 4, the Grand Chamber of the European Court of Human Rights unanimously ruled that the SORM system of direct access to communications networks in Russia violated the right to privacy enshrined in Article 8 of the European Convention on Human Rights. Zakharov v. Russia is the most recent judgment on the proper limits of communications surveillance powers, and its release at a time when the United Kingdom’s Draft Investigatory Powers Bill is under consideration is not likely to be coincidental.   This post will focus on three noteworthy aspects of the judgment: its clarification of requirements for standing when challenging communications surveillance laws, its treatment of data retention standards, and its conclusions regarding direct access systems.

At the heart of the Zakharov case is the SORM system of surveillance which is present in Russia and several former Soviet states. It allows law enforcement authorities to intercept the content of communications and to obtain non-content data by means of a direct connection to the networks of communications service providers (CSPs). According to the European Telecommunications Standards Institute, CSPs should facilitate the transfer of data to authorities when an order for interception is presented, but law enforcement should not have direct access to networks. European telecommunications companies and Privacy International have disclosed that direct access is employed by a range of states beyond the Eurasia region.

In his application to the European Court, the chair of a civil society organization alleged that the system of covert interception of mobile communications in Russia did not comply with Article 8, despite the fact that judicial authorization of surveillance was required by law. The case reached the Grand Chamber when the First Section relinquished jurisdiction pursuant to Article 30 of the European Convention, which may be applied when a case “raises a serious question affecting the interpretation of the Convention or the protocols thereto.” The Grand Chamber held that several aspects of Russian law were incompatible with the Convention, including that communications surveillance was permitted for a broad range of criminal offenses (including pickpocketing), surveillance was not limited to those suspected of having committed offenses, and robust oversight mechanisms and effective remedies were lacking. Continue reading

Go On! ESIL – European Court of Human Rights Conference, 5 June

A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars.

The conference will take place on Friday 5 June at the premises of the Court in Strasbourg.

Program and more information here.

To register for this event, please send an email to Rose During (Rose.During [at] echr.coe.int) with your name and affiliation.

Failing to Face the Gender Challenge – note on the European Court of Human Rights Jurisprudence

The intersection of religion and gender equality in the context of international human rights law has been exceptionally controversial and poignant, touching the very essence of peoples’ personal beliefs and generating intense social and political tensions. Yet, the failure of international law-making institutions to develop substantial legal analysis on this monumental issue is more than a political issue. It is a substantive failure of human rights law to protect women.

Thus far, it can be argued that there is a general rule and agreement in international law by which women’s equality is considered as a higher norm such that freedom of religion and conscience cannot justify discrimination against women. However, even so, there are still several outstanding problems. For instance, it is simply not clear when and how this rule should be applied. What are religious discriminatory practices and how should we identify them? In what circumstances gender equality is really more important than religious freedoms, and under which conditions and exemptions? More generally, how should gender equality be understood in the religious context and what can be a proper balance. Another difficulty is that so far this general rule has been addressed in a binary manner by which gender equality is put against religion while in fact reality brought much complex claims (for instance, by many women who wish to assume their equality within the religious context and within their religious communities). While international law has been useful for obvious and extreme cases (where religion practices aggressively violated women’s rights), it has either avoided the complexity or over simplified the principle of equality in more complicated cases.

The European Court of Human Rights demonstrated these problems in recent case law over the bans on religious garments, much of it surrounding the wearing of veils, headscarves, and other modest garments by Muslim women in public spaces. Very briefly, on one side, proponents of the bans on religious veils have put forward justifications such as preserving state secularism in the public sphere, ensuring state’s religious neutrality, and promoting gender equality (as these garments are often seen as an oppressive practice). On the other side, opponents of the bans have claimed that they violate many aspects of the right to equality and women’s right to manifest their religion, as well as other sets of related rights (such as the right to personal autonomy, the right to privacy, access to public spaces and education, and the right to employment).

In the cases brought before it (most recently in SAS vs France, Dogru, Sahin and Dahlab), the Court dismissed the claims of women who pleaded for the right to manifest their religion and wear headscarves in educational settings or other public places. Generally, the Court ruled that the limitations on religious freedoms were necessary in a democratic society for “… the protection of the rights and freedoms of others” (as prescribed by article 9(2) of the European Convention on Human Rights). In three of the cases, the Court decisions further approved as a legitimate aim the governments’ claim to promote gender equality as these garments were introduced as an oppressive practice towards women and as a threat to democratic values.

However, it is not the results of the rulings that are most concerning. It is the court’s disappointing failure to fully engage in the legal complexity of the debate. In the course of its rulings, the Court avoided confrontation with the competing set of rights, and did not develop any comprehensive legal assessment or methodology on the tension between women’s equality, human rights and religious freedoms, to tackle these conflicts in a systematic manner.

Continue reading

The Court’s dialogue with NGOs in S.A.S. v. France

The European Court of Human Right’s decision in the case S.A.S. v. France has been subject to substantial legal commentary. It was recently featured in the ASIL Insights, where the content of the judgment, the dissent as well as its implications were discussed. Earlier in July 2014 Professor Sytal Kalantry provided an analysis of the judgment, noting the fact that there were a number of non-governmental organizations (NGOs) that took part in the case as amici curiae. The case concerned the French law that prohibits the covering of the face in public. The Grand Chamber of the Court granted a leave to Amnesty International, Liberty, Open Society Justice Initiative (OSJI), Article 19 and the Human Rights Centre of Ghent University to submit amicus curiae briefs.

Image by Agência Brasil

Image by Agência Brasil

Currently, amicus curiae participants are commonplace in international tribunals. Amicus curiae submissions are a form of intervention by persons not party to the proceedings that involve presenting views on points of law or fact. This type of intervention in judicial proceedings has expanded from common law systems to countries with civil law traditions and to international adjudication. Article 36 of the European Convention on Human Rights and Fundamental Freedoms allows amicus curiae briefs from states, physical and legal persons and Council of Europe Commissioner for Human Rights.

In terms of organizations that acted as amici curiae in the S.A.S case, all NGOs, except the Human Rights Centre from Ghent University Law Faculty are repeat-players. They are veterans in this capacity and routinely submit briefs across a variety of tribunals. In fact, Amnesty International and Liberty are among the most active amici curiae before the European Court. Amnesty International is an active amicus curiae before a number of tribunals. In the past the organization submitted briefs before the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Tribunal for Rwanda and the International Criminal Court.

Continue reading

The Prince, his mistress and his lovechild – a feminist perspective on the Couderc and Hachette Filipacchi Associés v. France Grand Chamber referral

Male celebrity has affair with woman. Woman shares story with public. Woman’s version of events gets shut down by the courts. The end.

It is an all too familiar story that seems to repeat itself over and over again. When it comes to information disclosing the infidelity of powerful men, national courts have often been more than helpful in expeditiously securing the silence of the women involved in such affairs, accrediting more weight to the man’s claims of privacy, than the woman’s right to tell the tale of what was ultimately her affair as well.

Gill Philips, director of editorial legal services for the Guardian, wrote about the approach of UK courts to this issue in 2010, arguing that these cases were not so much about protecting anyone’s privacy, but “about protecting a male-dominated view of the world where it is legitimate to have sex with whoever they want and not have to account for it.” This, she argued, “goes to the heart of a much deeper, male-orientated view of society and relationships.”

While the legal landscape in the UK might be changing, as evidenced by cases as Ferdinand v. MGN and Steve McClaren v. NGN, the European Court of Human Rights has continued to tilt the balance in favour of claims advanced by men with public roles based on the right to respect for their private life. As recently as 2013, the Court approved of the Finnish courts silencing a woman who had published a book about her relationship with the (now former) Finnish Prime Minister, Matti Vanhanen. The case, Ruusunen v. Finland, concerned Susan Ruusunen, a single mother, who had been dating Vanhanen for two years while he was still in office. Vanhanen had not objected to her writing about their relationship and even posed for the cover photo of the book together with Ruusunen. Nevertheless, she and her publisher were criminally prosecuted and her book was taken out of circulation. While the Court acknowledged that the ex-girlfriend should be able to tell her story, the panel (consisting of three female and four male judges) stumbled over the fact that Ruusunen had discussed details of the sex life of two consenting adults, namely her and Vanhanen. No sex please, we’re judges.

In the Court’s deliberations, no attention was paid to Ruusunen’s right to tell her story as a matter of personal identity – the entire privacy v. freedom of expression assessment was conducted from the perspective of Vanhanen’s right to privacy. It was therefore refreshing in 2014 to read the Court’s judgment in Couderc and Hachette Filipacchi Associés v. France. The case concerned the publication of an article disclosing the identity of the illegitimate child of Prince Albert of Monaco and “Ms C.”. The article contained an interview with Ms C. and photographs of the mother, father, and child. These were published in French tabloid Paris Match and a similar German magazine called Bunte. The Prince sued both publications, in spite of acknowledging later that the child was indeed his. Continue reading

Second Thoughts on the SCSL Charles Taylor Appeal Judgement: On Assessing Evidence: Hearsay, Corroboration and the ECtHR Al Khawaja and Tahery v. UK case

Preliminary Comments:  Throughout the appeal and as part of the Defence team, I was able to bring forth my legal opinions collectively and thus anonymously, as court filings in writing to the judges of the SCSL Appeals Chamber. With the official end of the appeal and the issuance of the final Appeal judgement on 26 September 2013, this is no longer possible. Of course, I do not and cannot speak in the name of the Defence. The views of the Defence were presented publicly by Lead Counsel, Mr. Morris Anyah at the press conference  that immediately followed the public reading of the appeal judgement. I wish to dedicate the present blog post to Mr. Taylor’s defence team, although any responsibility to what I write below is mine alone. The blog post is written as an intellectual exercise, I find necessary in accomplishing the work that we do, when defending, prosecuting or judging individuals for the most heinous crimes. As Judge Shireen Fisher states (joined by Judge Winter) in her Concurring Opinion on Aiding and Abetting Liability: ‘Reasonable minds may differ on the law’. I would like to comment on what in my mind is unreasonable on a specific point of law, namely, assessing evidence and uncorroborated hearsay.

Other commentators will write valuable words on aiding and abetting, the ICTY Perisic Appeal decision, or on fact-finding in the ‘planning’ conviction. I wish to focus on the issue of the assessment of evidence. Despite the fact that this posting may no longer help Mr. Taylor, I hope it helps prevent the creation of and reliance on an erroneous precedent in international criminal law, by international criminal courts and tribunals and by domestic courts.

I find the issue of the assessment of evidence of extreme importance for two main reasons. Firstly, the Appeal Chamber itself states in paragraph 52 of the Appeal Judgement that ‘the Defence raises two issues of law which the Special Court has not had occasion to discuss to any extent in any of its previous judgements’. The first issue relates to determining the what could be ‘corroboration of evidence’ and the second issue relates to the use of uncorroborated hearsay as sole or decisive basis for conviction. Secondly, I argue, the Appeal Chamber misrepresents and misapplies the European Court of Human Rights (ECtHR) case law. Indeed, it bases its decision to reject Defence arguments on the ECtHR, the Al Khawaja and Tahery v. UK case. I argue that the Appeal Chamber erroneously bases its decision on Al Khawaja and Tahery, and fails to read this case in its entirety, as well as, to set it in the context of other ECtHR case law on the issue of corroboration and hearsay evidence.

Before entering the crux of the debate on whether incriminating findings of fact can be based solely and decisively on uncorroborated hearsay and the (mis)application of ECtHR case law, allow me to briefly come back to the first point mentioned as a novelty by the Appeals Chamber in paragraph 52 of the Judgement, i.e. the nature of evidence that can be considered as corroboration.

I. What does ‘corroborated’ evidence mean? Is it a question of common sense?

Paragraphs 71 to 73 of the Appeal Judgement discuss the arguments of both the Defence and the Prosecution on what ‘corroborated’ hearsay evidence is. Should the Trial Chamber have defined it and is it a legal notion (the Defence’s position) or a matter of common sense (the Prosecution’s position)?

Even taking the apparently lower standard of ‘a matter of common sense’, I think common sense cannot support the view that hearsay evidence can in any way corroborate other hearsay evidence. If hearsay evidence is a rumour that cannot be adequately challenged by the Defence at trial, then one rumour cannot reasonably be considered to corroborate another rumour. In other words, one rumour does not make another rumour any less unfounded in law. Stating the contrary would be contrary to common sense.

II. Is Corroboration an outdated notion in domestic or international criminal proceedings and is this of relevance to hearsay evidence or any other evidence of lower probative value?

While it is true that corroboration of direct evidence is not a requirement for conviction. This is true because one reliable, direct testimony, or piece of evidence can legitimately found a conviction. However, is this even relevant when looking at the question of hearsay evidence?

Hearsay evidence inherently defies Defence rights, as it is almost impossible to challenge such evidence in court. This is why most common law systems usually strike out hearsay evidence at the admissibility stage, while continental legal systems give it lower probative value.

Furthermore, to state that ‘corroboration’ is outdated would mean to ignore recent international case law, including the two very recent ICC judgements (i.e. in the Lubanga and Ngudjolo cases), where the trial chamber looked extensively into the question of corroboration. I hope it is not unfair to point out that the ICC is the international criminal court of the future, par excellence while the SCSL will soon be part of the past.

III. The Crux: Misapplication of ECtHR Case Law on the Issue of Hearsay

In paragraphs 85-87, the Appeals Chamber sets out its reasons for rejecting the Defence arguments relating to the assessment of evidence by the Trial Chamber. It bases its decision on the Al Khawaja and Tahery ECtHR decision issued on 15 December 2011, namely on paragraph 147 (quoted in part). It then states that seeing the guarantees of a fair trial offered by the SCSL Statute and Regulations, it was all fine, there was nothing to worry about, as Mr. Taylor was offered a fair trial and a fair chance to challenge the evidence on case, including uncorroborated hearsay.

Perhaps it is best to quote the Appeal Judgement here [emphasis added]:

“85. The Appeals Chamber considers that the issue in this case in regard to hearsay evidence turns on whether the Defence was right in its contention that reliance on uncorroborated hearsay evidence as the sole or decisive basis for incriminating findings of fact leading to a conviction amounted to an error in law. It is, therefore, in this context relevant and instructive to note that the ECtHR in the case of Al Khawaja and Tahery, decided on 15 December 2011, considered and expressly rejected a similar view as that put forward by the Defence in this case. In Al Khawaja and Tahery, the Grand Chamber of the ECtHR held that reliance on an uncorroborated hearsay statement as the sole or decisive basis for a conviction is not precluded as a matter of law and does not per se violate the accused‘s right to a fair trial.189”

The Appeals Chamber examines whether basing a conviction on uncorroborated hearsay is an error of law or not. It concludes that according to the Al Khawaja and Tahery case, basing a conviction on hearsay evidence is permissible in view of the safeguards offered by the SCSL Statute and Rules. The Appeals Chamber only partially quotes paragraph 147 and continues by explaining:

“86. The opinion of the ECtHR in Al Khawaja and Tahery applying Article 6 of the European Convention was that there is no technical rule of law requiring ―corroboration‖ or any other specific type of verification for hearsay evidence, but that the trier of fact must undertake a ―fair and proper assessment of the reliability of [hearsay] evidence,‖ and only where ―such evidence is sufficiently reliable given its importance in the case‖ may that evidence be the basis for a conviction.190 This is in consonance with the intent of Rule 89(B) and (C) of the Rules of the Special Court which the Appeals Chamber is bound to follow. In accordance with the Statute and Rules, the Trial Chamber admitted the evidence proffered before it, notwithstanding that it may have been hearsay or uncorroborated hearsay, as long as such evidence was relevant. Evidence does not become irrelevant because it is hearsay. It is instructive that only Rule 95 of the Rules expressly excludes the admission of evidence when it provides that: ―No evidence shall be admitted if its admission would bring the administration of justice into disrepute.”

87. The Appeals Chamber recognises, however, that admission of evidence is not conclusive of its reliability, and emphasises that because hearsay evidence is admissible as substantive evidence in order to prove the truth of its contents, establishing the reliability of hearsay evidence is of paramount importance.191 There exist in the laws applied by the Special Court safeguards designed to ensure the accused‘s rights of fair hearing and to ensure that evidence can be fairly challenged at trial.192”

The Appeals Chamber then concludes in paragraph 91 of the Judgement:

“91. Given the safeguards provided by the Statute and the Rules of the Special Court, as interpreted in the jurisprudence of the Court, there is no prohibition against the use of uncorroborated hearsay evidence, even if such hearsay is the basis of the conviction, provided that the Trial Chamber has subjected the hearsay evidence to a fair and proper assessment of its reliability.198”

Correctly analyzing the case law of the European Court of Human Rights: reliance on uncorroborated hearsay evidence counterbalanced by systemic safeguards

Have you read the Al Khawaja and Tahery v. UK decision of the ECtHR Grand Chamber?

I have.

It is an eloquent and intelligently nuanced and even cautious decision that is issued by the ECtHR. Nothing like the dialogue de sourds that the Appeals Chamber procedure and judgement turned out to be.

Paragraph 147 and ‘Safeguards provided by the Statute and the Rules of the Special Court’
Paragraph 147 of the Al Khawaja and Tahery v. UK decision actually states in full [emphasis added]:

“1. The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.”

Therefore, the ECtHR admits, and by this is broadens its previous case law, which it nevertheless continues to confirm as valid in the Al Khawaja and Tahery case (see below), that under certain limited circumstances, namely when in the presence of ‘sufficient counterbalancing factors, including the existence of strong procedural safeguards’, basing a conviction solely and decisively on hearsay evidence would not automatically be in violation of Article 6(3) of the Convention (Article 6 generally guaranteeing the right to a fair trial).

In this way, a correct reading of paragraph 147 would be that in principle such a conviction stands in violation of the convention, except when ‘strong procedural safeguards’ exist. The SCSL Appeals Chamber considered that the SCSL Statute and Rules offer precisely these safeguards of a fair trial. It thus completely disregards the elaborate legal analysis made by the ECtHR when it makes the distinction between the common law and the continental legal systems. Indeed, the ECtHR analyses the UK legal system (common law) in length and finds that it offers particularly strong safeguards against most convictions that would be based solely and decisively on uncorroborated hearsay- while it provides very limited exceptions for cases where the hearsay evidence was solid (see Lord Philips below). Contrary to this, a review of the ECtHR jurisprudence makes it obvious that continental or civil legal systems do NOT normally present the same safeguards and therefore, in these cases the prohibition of reliance on hearsay evidence as sole and decisive evidence for conviction (Lucà v. Italy), should apply.

Notably, and similarly to the SCSL, all continental law systems have safeguards to ensure the fair trial of defendants, including his right to challenge evidence. Therefore, it seems quite obvious that finding, as the Appeals Chamber has in its Judgement, that regular safeguards that exist in most legal systems, are also present at the SCSL cannot be sufficient in itself, to satisfy the strong safeguards rule set by the ECtHR and to justify the sole and decisive reliance on uncorroborated hearsay.

The Difference between the Common Law and the Continental Legal Systems: the Relevant Comparison when dealing with Safeguards

The ECtHR maintains that the issue of admitting hearsay or evidence of lower probative value is a question for national courts. It adds however, that what the ECtHR is competent to do is check whether there has been a violation of Article 6(3) of the Convention. In other words, it examines whether the application of the rules of evidence by national courts violates the defendant’s right to a fair trial.

In Alkhawaja and Tahery, after stating the principle, the ECtHR analyses the safeguards offered by the laws of the UK and how they are applied by the Courts on the question of hearsay evidence. Beforehand, the ECtHR goes to the trouble of analysing relevant domestic law and practice (paragaphs 40-62 of the ECtHR decision). This includes safeguards offered by The Criminal Justice Act 2003, The Coroners and Justice Act 2009 and the Human Rights Act 1998. When examining  case law of England and Wales, the ECtHR focuses on how UK Courts apply ECtHR case law.

The first case, R v. Sellick and Sellick, marked the need for UK courts to distance themselves from a strict application of ECtHR case law (Lucà v. Italy, no. 33354/96, § 40, ECHR 2001). According to the UK Court, this distance is necessary considering that the UK system is jury based, and hearsay evidence is swiped out by the judge at the admissibility stage, so that the jury cannot even take hearsay evidence into consideration as the sole and decisive element basing a conviction. This is not the case of civil legal systems where most evidence is admissible and their probative value is weighed by professional judges at the verdict stage- much like international criminal procedure. The UK Court states the existing ECtHR case law pertaining to the ‘sole or decisive standard’ is inadequate seeing that at the admissibility stage, it is impossible to presume whether one piece of evidence would be decisive or not at the judgement stage.

Lord Philips is quoted by the ECtHR decision (paragraph 58) when he states [emphasis added]:
“Indeed the rule seemed to have been created because, in contrast to the common law, continental systems of criminal procedure did not have a comparable body of jurisprudence or rules governing the admissibility of evidence.”

The second UK case examined by the ECtHR (paragraph 49 of the ECtHR judgement) is R. v. Davis, where the ECtHR refers to Lord Bingham at paragraph 5 of the UK decision and states [emphasis added]:

“[The UK Court] found that the witnesses’ testimony was inconsistent with the long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence, a principle which originated in ancient Rome (Lord Bingham at paragraph 5).
Moreover, this Court had not set its face absolutely against the admission of anonymous evidence in all circumstances. However, it had said that a conviction should not be based solely or to a decisive extent on anonymous statements. In any event, on the facts in Davis’s case, this Court would have found a violation of Article 6: not only was the anonymous witnesses evidence the sole or decisive basis on which Davis had been convicted, but effective cross-examination had been hampered.

Finally, the ECtHR goes to length when it examines R. v. Horncastle and others. In paragraph 61 of the ECtHR judgement, it reports the conclusions of Lord Philips, as follows [emphasis added]:

“61. Lord Phillips instead concluded that the 2003 Act made such a rule unnecessary in English criminal procedure because, if the 2003 Act were observed, there would be no breach of Article 6 § 3(d) even if a conviction were based solely or to a decisive extent on hearsay evidence. To demonstrate this point, Annex 4 to the judgment analysed a series of cases against other Contracting States where this Court had found a violation of Article 6 § 1 when taken with Article 6 § 3(d). In each case, had the trial taken place in England and Wales, the witness’s testimony would not have been admissible under the 2003 Act either because the witness was anonymous and absent or because the trial court had not made sufficient enquiries to ensure there was good reason for the witness’s absence. Alternatively, had the evidence been admitted, any conviction would have been quashed on appeal.”

The above review of UK case law by the ECtHR teaches a few central points:
(1) ECtHR case law established the ‘sole and decisive rule’ by which uncorroborated hearsay as the sole and decisive basis for conviction, stands in violation of article 6(3) and the right to a fair trial. This prohibition usually related to continental or civil law systems.
(2) The issues that arose in the previous ECtHR cases would have been resolved differently in the UK. This is because hearsay evidence presented in similar circumstances would have been inadmissible. Any other situation would have led to a quashing of a decision at appeal.
(3) UK Courts stress that ECtHR prohibition of use of uncorroborated hearsay evidence, solely and decisively, could not have intended the impractability resulting from the case law for UK courts (re discussion on inadmissibility and foreseeing how decisive any piece of evidence may turn out to be). This is why nuance in the ECtHR case law was needed, resulting in the Al Khawaja and Tahery decision.

The question is: does the Al Khawaja and Tahery decision mark a turning point with previous ECtHR case law?

I argue that it does not, as I develop further below. It simply acknowledges that UK law offers sufficient safeguards so as to allow a departure from a strict application of the ‘sole and decisive rule’, safeguards that the SCSL system does not offer, contrary to what is stated in the Appeals Chamber Judgement.

The ECtHR also examines the case law of other States that it finds to represent ‘relevant comparative law’, notably, other common law systems. This only reaffirms that the ECtHR distinctly positions itself in relation with the type of safeguards each system offers the defendant. Thus, the ECtHR examines the laws of Scotland, Ireland, Australia, Canada, Hong Kong, New Zealand, South Africa and the United States.

ECtHR Grand Chamber’s Assessment and whether or not the Al Khawaja and Tahery marks a Cut from Previous Case Law

In paragraphs 118 and 119 of the decision, the Grand Chamber recalls the general principles of ECtHR case law on the question of hearsay evidence and the right of the accused to confront evidence presented against him at trial. This case law establishes the rule that the use of hearsay evidence solely and decisively for a conviction is in violation of Article 6(3) of the Convention. In the Al Khawaja and Tahery case the ECtHR interprets this rule to see whether it is an absolute rule or not.

The ECtHR concludes as stated in paragraph 147 that basing a conviction solely and decisively on hearsay evidence does not automatically stand in violation of article 6(3) of the Convention. However, this is only true when faced with a case from a legal system that provides strong safeguards. These safeguards at the admissibility stage are generally present in common law systems and are absent in civil or continental law systems, the main point being such evidence would be inadmissible in common law systems and admissible in civil law systems (and before the SCSL). However, nowhere is it claimed that continental law systems do not provide fair trial safeguards. Simply, what is said is that when it comes to hearsay evidence at the admissibility stage, continental law systems do not offer the necessary safeguards. Therefore the SCSL Appeal Chamber obviously confused the safeguards offered by the SCSL Statute and Rules to a fair trial with the UK and other common law system safeguards in relation to hearsay evidence. Further explanation is needed to fully understand the ECtHR finding, and this is provided in the ECtHR decision.

The ‘sole and decisive’ rule in ECtHR case law
I would urge the conscientious reader to go back to the Al Khawaja and Tahery case and read paragraphs 126 to146. I will simply quote the first sentence of paragraph 142 where the ECtHR states:
“142. With respect to the Government’s final argument, the Court is of the view that the two reasons underpinning the sole or decisive rule that were set out in the Doorson judgment remain valid.”

The Doorson judgment sets out the rule by which hearsay evidence cannot solely and decisively be relied upon for a conviction. Nevertheless, in view of the UK case law, the safeguards offered by the UK legal system in terms of a fair trial, specifically addressing the issue of hearsay evidence, and the difficulty for the UK courts to apply ECtHR restrictions on reliance on hearsay evidence, the ECtHR concludes:

“146. The Court is of the view that the sole or decisive rule should also be applied in a similar manner [in a manner in which the limitations on defence are sufficiently counterbalanced by sufficient safeguards]. It would not be correct, when reviewing questions of fairness, to apply this rule in an inflexible manner. Nor would it be correct for the Court to ignore entirely the specificities of the particular legal system concerned and, in particular its rules of evidence, notwithstanding judicial dicta that may have suggested otherwise (see, for instance, Lucà, cited above, at § 40). To do so would transform the rule into a blunt and indiscriminate instrument that runs counter to the traditional way in which the Court approaches the issue of the overall fairness of the proceedings, namely to weigh in the balance the competing interests of the defence, the victim, and witnesses, and the public interest in the effective administration of justice.”

The ECtHR further examines specific safeguards in the UK law at the time relevant to the facts of the case before it (Acts of 1998 and 2003). It states as follows:
“148. The Court will therefore examine the counterbalancing measures in place in English law at the relevant time. … Whatever the reasons for the absence of a witness, the admission of statements of a witness who is not only absent but anonymous is not admissible…

149. … Of particular significance is the requirement under the 2003 Act that the trial judge should stop the proceedings if satisfied at the close of the case for the prosecution that the case against the accused is based “wholly or partly” on a hearsay statement admitted under the 2003 Act, provided he or she is also satisfied that the statement in question is so unconvincing that, considering its importance to the case against the accused, a conviction would be unsafe.

150. The Court also notes that, in addition to the safeguards contained in each Act, section 78 of the Police and Criminal Evidence Act 1984 provides a general discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. Finally, the common law requires a trial judge to give the jury the traditional direction on the burden of proof, and direct them as to the dangers of relying on a hearsay statement.

151. The Court considers that the safeguards contained in the 1988 and 2003 Acts, supported by those contained in section 78 of the Police and Criminal Evidence Act and the common law, are, in principle, strong safeguards designed to ensure fairness. It remains to be examined how these safeguards were applied in the present cases.”

Unlike the SCSL, Appeals Chamber, the ECtHR examines the specific safeguards in-depth, as well as their application. Also, there are no safeguards of in the SCSL Statute and Rules similar to those offered in the UK system. Quite on the contrary, the SCSL Appeals Chamber decision proves the exact opposite! If the SCSL had had the same safeguards as the UK legal system, in relation to hearsay evidence, then hearsay evidence could not have been the sole and decisive evidence on which Mr. Taylor was convicted. As stated above, arguably if the case was presented in the UK, the evidence would not have even been admissible.

In the UK, the sole and decisive rule is applicable and hearsay evidence is generally seen as unreliable. Only a few situations justify a departure from this rule. One example is provided by Lord Philips in R. v. Horncastle and others when he argues against a strict application of the ECtHR sole and decisive rule ( see ECtHR decision at paragraph 60), as follows:
“The sole or decisive test produces a paradox. It permits the court to have regard to evidence if the support that it gives to the prosecution case is peripheral, but not where it is decisive. The more cogent the evidence the less it can be relied upon. There will be many cases where the statement of a witness who cannot be called to testify will not be safe or satisfactory as the basis for a conviction. There will, however, be some cases where the evidence in question is demonstrably reliable. The Court of Appeal has given a number of examples. I will just give one, which is a variant of one of theirs. A visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard. He then returns to his own country, where he is himself killed in a road accident. The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard. The owner declines to answer questions as to his whereabouts at the time of the accident. It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is the effect of the sole or decisive test.”

The example provided, illustrates the limited extent to which hearsay evidence could be reliable, namely because it was provided by the (deceased) victim who is a direct witness, and that the information he provided was accurate and testable. This can hardly be said about any of the hearsay evidence on which the Trial Chamber based its decision in Mr. Taylor’s case. Although some of the hearsay evidence in the Taylor case came from deceased persons, none of it was of the level of accuracy as Lord Philip’s example, to the point that it would be nearly impossible to question or to raise a doubt about. i.e. how else could one evaluate the evidence in Lord Philips’s example, other than as reliable evidence (question of common sense), coherent and convincing, that underlined irrefutable facts- the existence of a certain individual with a very specific licence plate number?

‘Strong safegaurds’ call for only the very rare occasion of permitting a conviction based solely and decisively on uncorroborated hearsay. It is clear that uncorroborated hearsay that would justify a conviction, in this manner, and according to the ECtHR case law, could only be very strong evidence, for instance evidence revealing a factor related to the crime scene that is inrefutable (car plate number, very precise description of a room to proof the presence inside that room, and so forth).

Post-Al Khawaja and Tahery case- solely and decisively relying on uncorroborated hearsay evidence is a violation of Article 6(3)
More recent ECtHR cases confirm that the ECtHR still finds the sole and decisive rule to be valid and confirm the analysis of the Al Khawaja and Tahery case as presented above. Thus, the ECtHR declared a violation of Article 6(3) was committed when hearsay evidence was relied upon without offering the sufficient safeguards

For two examples see final decisions delivered in September 2012 in Sigbatullin v. Russia, paragraphs 50-59 and Karpenko v. Russia, paragraphs 70 to 77