Published in July 2018.
This module is a resource for lecturers
Case study 1: Presumption of innocence
Krause v Switzerland*
In the Krause case, the European Commission on Human Rights addressed the situation of public officials making statements regarding terrorist suspects under investigation.
Ms. Krause was detained on remand in Switzerland pending trial for terrorist offences. A terrorist commando composed of German and Palestinian terrorists had hijacked a plane. The commando demanded the release of various prisoners, including Ms. Krause, a woman connected to a German terrorist group.
The Swiss Federal Minister of Justice was asked on television how his Government intended to react. In a first interview, he stated that "Petra Krause cannot be considered a simple Palestinian freedom fighter. She has committed common law offences relating to the use of explosives. She will stand trial in autumn as a remand detainee. The fight against terrorism cannot be conducted by releasing terrorists." In a second television interview, he declared that Ms. Krause was linked to several explosives incidents, "she has to stand trial - I do not know the judgment. Terrorism cannot be fought by renouncing the rule of law".
Ms. Krause complained to the European Commission on Human Rights that these statements violated the presumption of innocence. The Commission stressed that the presumption of innocence would be violated where a public official declared that a suspect is guilty of an offence before a court has established guilt. At the same time, authorities will not violate the presumption by informing the public about ongoing investigations, about arrests, about confessions made by suspects.
The Commission noted that the Swiss Federal Minister of Justice could have chosen his words more carefully. However, he had made clear that Ms. Krause still had to stand trial. In the second interview, he had specifically stated that he did not know what the outcome of the court proceedings would be. The Commission therefore concluded that the presumption of innocence had not been violated.
* Krause v. Switzerland (Merits) (Application no. 7986/77), Judgment of 3 October 1978, European Court of Human Rights.
Case study 2: Access to legal advice
The Salduz case *
Mr. Salduz, who was aged 17 at the time of the facts, was arrested by anti-terrorism police on suspicion of having participated in an unlawful demonstration in support of the PKK, which is proscribed as a terrorist organization in Turkey and several other countries. He was interrogated at the anti-terrorism branch police station and admitted to having had a lead role in the organization of a demonstration in favour of the imprisoned PKK and its leader. Before and after the police interrogation he was visited by a doctor, who stated that there were no traces of ill-treatment on his body. Moreover, before the police interrogation, he signed a form in which he acknowledged that he had been informed of his right to remain silent. On the following day, Mr. Salduz repeated his confession first before a public prosecutor and then before an investigating judge. At the time, under Turkish law in terrorism cases the police interrogation and the initial appearances before the prosecutor and the judge all took place without the assistance of a lawyer.
Mr. Salduz was charged under the counter-terrorism law with aiding and abetting the PKK. The trial before the State Security Court started approximately three months after his arrest. He was assisted by defence counsel. Mr. Salduz retracted the statements made previously and denied that he had been involved in the demonstration. Also, his co-accused who had described him as one of the organizers of the demonstration all retracted their statements previously made. The court, however, found Mr. Salduz and some of his co-accused guilty based on the statements made to the police, the public prosecutor and the investigating judge, and sentenced him to four-and-a-half years' imprisonment. The judgment was upheld on appeal and by the Supreme Court.
Mr. Salduz filed an application to the European Court of Human Rights (ECtHR) complaining of a violation of his right to a fair trial. In its judgment (at para. 54), the ECtHR underlined the importance of the investigation stage for the preparation of the criminal proceedings and the vulnerability of an accused at this stage. It recalled that the right to a fair trial normally requires that the accused be allowed assistance of a lawyer already at the initial stages of police interrogation (at para. 52). However, this right was considered capable of being subject to restriction for good cause.
In applying these principles to the case of Mr. Salduz, the ECtHR considered that apart from his and his co-defendants' statements (all given without the assistance of a lawyer), the evidence against Mr. Salduz was rather weak. The ECtHR found (at para. 58) that Mr. Salduz "was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody". The ECtHR also highlighted Mr. Salduz' young age (17) as a specific element of the case. It concluded that the trial had been unfair: "In sum... the absence of a lawyer while he was in police custody irretrievably affected his defence rights" (at para. 62).
In the Salduz case, the ECtHR stressed the importance of the right to prompt access to legal counsel specifically in the light of Mr. Salduz' young age. In a subsequent case concerning an adult man accused of being a member of a terrorist group, however, the ECtHR clarified that the right to be assisted by a lawyer as soon as a person is taken into custody applies in all cases. The ECtHR said:
In accordance with the generally recognised international norms … an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned ... Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person's defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention. **
The Law Office of Ghazi Suleiman case ***
Three men were arrested on accusations of involvement in terrorist activities and endangering the peace and security of Sudan. They were refused contact with their lawyers and families. The lawyers chosen by their families, Ghazi Suleiman and others, requested in vain from the competent authorities, including the Supreme Court, authorization to visit their clients and, subsequently, to represent them at trial. The military court which tried the three men assigned other defence counsel to them.
In its decision on the complaint brought by the Law Office of Ghazi Suleiman, the African Commission held (at para. 59) that "the right to choose freely one's counsel is fundamental for the guarantee of a fair trial. To recognise that the court has the right of veto on the choice of a counsel of one's choice amounts to an unacceptable violation of this right." The African Commission concluded (at para. 60) that refusing the victims the right to be represented by the lawyer of their choice amounted to a violation of article 7(1)(c) of the African Charter ("Every individual shall have the right to have his cause heard. This comprises: … the right to defense, including the right to be defended by counsel of his choice").
* Salduz v. Turkey (Application no. 36391/02), Judgment of 27 November 2008, European Court of Human Rights.
** Dayanan v. Turkey (Application no. 7377/03), Judgment of 13 October 2009, European Court of Human Rights, para. 32.
*** African Commission on Human Rights (2003). Law Office of Ghazi Suleiman v. Sudan, Communication nos. 222/98 and 229/99. 29 May.
Case study 3: The right against self-incrimination
The case of Heaney and McGuinness *
A large explosion at army barracks killed five soldiers and a civilian. As part of the investigation in the immediate aftermath of the explosion, the police raided a house suspected to be used by the Irish Republican Army (IRA, an unlawful paramilitary organization), which was suspected to have carried out the attack. Items including balaclavas and latex gloves were found in the house. Heaney, McGuinness and others, suspected of being members of the IRA, were found at the house and arrested. Heaney and McGuinness were questioned about their movements that day, in particular their movements around the time at which the explosion occurred. The police also read out to them section 52 of Ireland's counter-terrorism legislation (the Offences against the State Act 1939), which makes it a separate offence not to provide an account of one's movements. They refused to answer.
After tests, the items found in the house proved not to be forensically linked to the bombing. Heaney and McGuinness were charged with membership of an unlawful organization (the IRA) and, under sect. 52, with failing to provide an account of their movements during a specified period. Also at trial, Heaney and McGuinness remained silent. They were acquitted on the membership charges, but were found guilty with regard to the failure to provide an account of their movements and sentenced to six months imprisonment.
Heaney and McGuinness brought their case before the European Court of Human Rights (ECtHR). The Government argued that sect. 52 was a proportionate response to the threat posed by terrorism in Ireland at the time. The ECtHR found, however, that the degree of compulsion imposed on Heaney and McGuinness by sect. 52 of the counter-terrorism law with a view to compelling them to provide information relating to the charges against them was such as to in effect destroy the very essence of the privilege against self-incrimination and the right to remain silent (at para. 55). The ECtHR therefore found a violation of the right to a fair trial. Moreover, the ECtHR noted the close link between the right not to incriminate oneself and the presumption of innocence and found a violation of the latter, too.
* Heaney and McGuinness v. Ireland ( Application no. 34720/97), Judgment of 21 December 2000, European Court of Human Rights.
Case study 4: Exclusion of evidence in violation of human rights law
The Taba case*
On 6 October 2004, bomb attacks in the Taba and Nouweiba tourist resorts on the Sinai Peninsula led to the death of 34 and injury of more than one hundred Egyptians and foreigners. The Egyptian security forces arrested many persons in the aftermath of the attacks, among them Mohamed Gayez Sabbah, Osama Mohamed Abdel-Ghani Al-Nakhlawi and Younis Mohamed Abu-Gareer. They were detained incommunicado (including without access to a lawyer) for about half a year, then tried by the Supreme State Security Court of Egypt, found guilty primarily based on confessions they made while in detention, and sentenced to death.
Two human rights organizations brought applications on their behalf before the African Commission on Human and Peoples' Rights. The African Commission found it established that the three men made their confessions after having been subjected repeatedly to torture (at para. 189). The three men were detained without access to the outside world for six to nine months. They complained about the ill-treatment a first time when they were brought before a prosecutor. The public prosecution had them medically examined and determined that they were free from external injuries. The defendants then complained to the trial court, which ordered a medical examination. Despite the long time elapsed, the medical examination showed unexplained injuries compatible with the torture complained of by the three men, but the court did not investigate the matter further. Instead it sentenced the defendants to death relying on their confessions made to the security forces.
In its decision, the African Commission reiterated several very important principles also contained in the jurisprudence of the other international human rights bodies:
- When a person is injured in detention or while under the control of the security forces, there is a presumption that the person was subjected to torture or ill-treatment (at para. 168).
- If the prosecution wishes to rely on evidence which an individual claims was obtained through torture or ill-treatment, the burden falls on the prosecution to establish that evidence has not been obtained through torture or inhuman and degrading treatment.The African Commission stated that "once [a] victim raises doubt as to whether particular evidence has been procured by torture or other ill-treatment, the evidence in question should not be admissible, unless the State is able to show that there is no risk of torture or other ill-treatment." Moreover, where a confession is obtained during incommunicado detention, it should be considered to have been obtained by coercion and not be admitted as evidence (at para. 212).
- Access to a lawyer is one of the necessary safeguards against abuse during the pre-trial process (at para. 179).
- Prompt recourse to a judicial authority, independent of the authorities detaining, interrogating and ultimately prosecuting, constitutes a vital aspect of the prevention and deterrence of torture and other ill-treatment (at para. 183). Appearance of the detainees before a prosecutor is not sufficient to satisfy this requirement.
- Among other remedies, the Commission recommended to Egypt not to carry out the death sentences, to release the three men and to adequately compensate them. In February 2012, the Egyptian Government repealed the death sentences.
The case of Nallaratnam Singarasa **
Mr. Singarasa was arrested on suspicion of involvement in activities of the Liberation Tigers of Tamil Eelam, including attacks against camps of the Sri Lankan army. He was held in police custody for many months without access to a lawyer and allegedly beaten. About six months after his arrest, he was produced before a senior police officer and asked to sign a statement, which later on became the basis for his conviction at trial and sentence to 35 years imprisonment. According to Mr. Singarasa, he was unable to understand the statement (as it was written in Sinhalese and he only spoke and read Tamil) and he had refused to sign it, but the police officer forcibly put his thumbprint on the typed statement.
At the time of the facts, under the Sri Lankan law of evidence a statement made to a police officer was inadmissible. The Prevention of Terrorism Act (PTA), however, made an exception to this rule, providing that a confession made to a senior police officer was admissible. The voluntariness of such a statement or confession could be challenged, but the burden of proving that a confession was not made voluntarily lay with the person claiming it. At trial, Mr. Singarasa claimed that his 'confession' had been coerced. The court, however, applied the PTA provision and admitted the statement (basing the guilty finding and sentence on it), as Mr. Singarasa was unable to prove that the statement was not voluntary.
The Human Rights Committee was seized of the case. It maintained "that it is implicit in the principle [that an individual should not be compelled to self-incriminate] that the prosecution must prove that the confession was made without duress" (at para. 7.4).If a court (whether at the pre-trial or trial stage) finds that the prosecution has failed to show that an incriminating statement was not extracted through compulsion, where this issue is raised by the defence, then the evidence must be excluded in order that the trial is fair.
The Ghailani case ***
Ahmed Khalfan Ghailani was on trial in the United States Federal Court in New York City charged with murder, conspiracy to commit terrorist offences, and other offences for his suspected involvement (he was accused of playing a key logistical role) in the terrorist bombings in 1998 of the US Embassies in Kenya and Tanzania, which killed 224 people.
Mr. Ghailani had been captured in Pakistan in 2004 and had been detained at a secret detention facility of the US Central Intelligence Agency (a so-called 'black site') and at the Naval Base in Guantánamo for five years before being put on trial in civilian court. Under interrogation during his detention at the CIA 'black site' Mr. Ghailani made statements which reportedly amounted to confessions of his role in the bombings. The prosecution made no attempt to introduce these statements as evidence at trial. Mr. Ghilani also made statements to the CIA investigators that led them to a man called Husein Abebe. Mr. Abebe subsequently told the investigators that he had sold Mr. Ghailani the explosives used in the attacks.
The prosecution considered Mr. Abebe a key witness, but Mr. Ghailani's defence objected to his being called to testify at trial because the information leading to the identification of Mr. Abebe as a witness had, allegedly, been extorted from Mr. Ghailani under torture. The US Government declined to provide information to the judge on the circumstances under which Mr. Ghailani had been interrogated and accepted that the judge would, consequently, assume that Mr. Ghailani's statements had been coerced.
To decide on the question of the admissibility of Mr. Abebe's testimony, the judge held closed hearings at which he heard as witnesses persons who were present when Mr. Abebe was persuaded to confess his role, to implicate the accused, and to cooperate with the authorities. He then ruled that the US Constitution did not allow Mr. Abebe to take the stand as a witness because "the government has failed to prove that Abebe's testimony is sufficiently attenuated from Ghailani's coerced statements to permit its receipt in evidence". The judge added:
The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.
The jury subsequently acquitted Mr. Ghailani on all but one of the more than 280 charges against him, including on charges of murder and conspiracy to use weapons of mass destruction. He was, however, found guilty on one count of conspiracy to destroy government buildings and property. The judge imposed a life sentence.
The El Haski case ****
Mr. El Haski was a citizen of Morocco. Following periods in Syria, Saudi Arabia and Afghanistan (where he took part in military training with a militia leader) he entered Belgium illegally in 2004. After five months in Belgium he applied for asylum. Two weeks after his application, however, he was arrested and charged with participating, as a leader, in the activity of a terrorist group (the Moroccan Islamic Fighting Group or 'GICM' after its French name 'Groupe Islamique Combattant Marocain') and other offences.
Evidence transmitted by the Moroccan authorities, obtained during proceedings opened following the Casablanca bombings in 2003, was added to the criminal case file in Belgium. That evidence included witness statements describing the Mr. El Haski's involvement and activities in the GICM.
Mr. El Haski was tried, found guilty of participating in the activities of a terrorist group, and sentenced to seven years imprisonment. He appealed the judgment asking the appellate court to exclude the statements taken in Morocco, which he alleged had been obtained through torture or inhuman treatment. The Court of Appeal, however, considered that Mr. El Haski had provided no evidence capable of shedding "reasonable doubt" on the way in which the statements had been obtained. It therefore rejected the argument and upheld the judgment based, among other things, on the statements transmitted by the Moroccan authorities.
Mr. El Haski complained to the ECtHR. The ECtHR recalled the principle whereby the use of evidence obtained in violation of the prohibition against torture and inhuman or degrading treatment automatically renders the proceedings as a whole unfair.
The ECtHR noted that the statements at issue had been made by suspects questioned in Morocco in investigations and proceedings following the Casablanca bombings of 16 May 2003. Based on several reports issued by the United Nations and non-governmental organizations, the ECtHR found that there existed a "real risk" at the time that statements had been obtained using treatment contrary to the prohibition of torture or inhuman or degrading treatment, and that at in the aftermath of the Casablanca bombings the Moroccan judicial system did not offer real guarantees of independent, impartial and serious examination of allegations of torture.
The ECtHR held that in the circumstances it was sufficient for Mr. El Haski to have demonstrated to the domestic court that there existed a "real risk" that the statements had been obtained by torture or inhuman or degrading treatment. The Belgian courts should have assured themselves that this was not the case or otherwise have excluded the statements from the case file. Requiring Mr. El Haski to provide "concrete proof" capable of shedding "reasonable doubt" on the way the statements had been obtained was not an adequate response of the Belgian courts to Mr. El Haski's objections. The ECtHR concluded that there had been a violation of the right to a fair trial.
* African Commission on Human and Peoples' Rights (2011). Egyptian Initiative for Personal Rights and Interights v. Egypt (Merits), Communication No. 334/06 at para. 185. 1 March.
** United Nations, Human Rights Committee (2004). Nallaratnam Singarasa v. Sri Lanka , Communication no. 1033/01. 21 July. CCPR/C/81/D/1033/2001. Para. 7.4.
*** United States of America v. Ahmed Khalfan Ghailani , Case no. S10, Judgment of 12 July 2010, US District Court Southern District of New Yok, 98 Crim. 1023(LAK).
**** El Haski v. Belgium (Application no. 649/08/03), Judgment of 25 September 2012, European Court of Human Rights.
Case study 5: Refusal of disclosure on grounds of public interest
Case of A. and Others*
This case dealt with administrative detention and not criminal procedure. The United Kingdom introduced a procedure whereby 'closed material', which the government refused to disclose to the detainees on grounds of national security, would be reviewed on the detainees' behalf by 'special advocates' appointed by the government. The ECtHR found that the use of 'special advocates' could be a way of mitigating the disadvantage suffered by the detainees due to the refusal to disclose to them the material justifying the allegations against them. The more important question and test, however, was whether the 'open material' accessible to the detainees provided them sufficient information to be able to challenge the allegations against them. [Discussed further in Module 10].
* A. and Others v. the United Kingdom (Application no. 3455/05), Judgment of 19 February 2009, European Court of Human Rights, paras. 203-204.