By Tobias Thienel

This morning, the Grand Chamber of the European Court of Human Rights decided the case if Saadi v. Italy, concerning the expulsion of a terrorist suspect to Tunisia. In argument before the Court, the Italian government and the UK government as intervener (Article 36(2) ECHR) had submitted to the Court that the protection from expulsion to a risk of torture or inhuman treatment in the receiving State (as stated, most prominently, in Soering v. United Kingdom, paras. 85-91) should not be absolute. Instead, so the argument particularly of the United Kingdom went, the risk of grave ill-treatment in the receiving State should be balanced against the danger the person concerned poses to national security. This submission meant that the UK (and Italy, which joined the British submissions in this respect) had to mount a full-blown attack on the Grand Chamber judgment in Chahal v. United Kingdom. There, the Court had held that the protection from expulsion under Article 3 was absolute, and that the behaviour of the person concerned was therefore nothing to the point, even if the person was a terrorist. The UK now argued that the Court should depart from Chahal (as clearly it could have done: Stafford v. United Kingdom, para. 68). Chahal, the UK said, had created serious difficulty for States in their fight against terrorism, in that it was no longer possible to protect society from foreign terrorists where they a) could not be deported (Chahal) and b) could not be tried due to a lack of evidence proving the commission of crimes beyond reasonable doubt. The UK further sought to deflect the force of the argument drawn from the absoluteness of Article 3: it submitted that in expulsion cases, the actual violation of the terms of Article 3 would happen in the receiving State, and not at the hands of the expelling State. The prohibition of expulsion in such a case was a positive obligation, added to the basic, negative and completely absolute prohibition of torture or inhuman treatment by the State itself. Positive obligations, the UK said, were not absolute. As might have been expected, the Court was having none of it. In a completely unanimous judgment, it reaffirmed that Article 3 ‘enshrine[d] one of the most fundamental values of democratic societies’ (its early case-law only spoke of ‘the democratic societies making up the Council of Europe’ – Soering, para. 88; of course, the extension is unremarkable), that it was without exception and could not be derogated from even in a public emergency (Article 15(2) ECHR). As in Chahal, the threat of terrorism could not call into question the absoluteness of Article 3. Continue reading →

By Tobias Thienel

The ECtHR yesterday gave an Advisory Opinion on a question related to the equal representation of the genders on its Bench. I have already commented on that. But in another (contentious) case decided yesterday, one of the judges (pictured) raised another issue of fairness between, or rather to, the sexes, which I would not want to keep from our readers. I will let the Judge speak for himself; the excerpt is from the ‘Personal Conclusion’ of the Partly Dissenting Opinion of Judge Borrego Borrego in Kafkaris v. Cyprus (para. 13):

I shall conclude my opinion with one final observation: in the judgment, from start to finish, all those who are mentioned are given the appropriate designation for their sex, with the exception of the judges and Registrar of the Grand Chamber. I object to the presentation of judges as sexually neutral individuals in a society made up of men and women. The distinction between the two sexes in relation to judges is expressly acknowledged in the Rules of Court, since Rule 25 § 2 requires the Court’s composition to be gender balanced. It is also a matter of concern to the Parliamentary Assembly of the Council of Europe, which advocates the presence of women on all lists of candidates for posts as judges of the Court. This has prompted the Committee of Ministers to request an advisory opinion. So the opinion on the sex of candidates for posts as judges will be given by judges who are presented to the public as sexually neutral. Any comment would, to my mind, be superfluous. But to avoid any confusion, I wish to point out that I belong to the male sex.

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 By Tobias Thienel

A short 47 years, 2 months and 29 days after giving its first ever judgment (Lawless v. Ireland (No. 1)), the European Court of Human Rights has today rendered its first advisory opinion: Advisory Opinion on Certain Legal Questions concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights. The question for the Court was only slightly more catchy than the title of the opinion: ‘can a list of candidates for the post of judge at the European Court of Human Rights, which satisfies the criteria listed in Article 21 of the Convention, be refused solely on the basis of gender-related issues?’ In other words, can the equal representation of the genders on the Court be enforced by a refusal to consider nominations that do not contain any women (the gender presently underrepresented), and that accordingly do not afford an opportunity to remedy the situation? Continue reading →

By Tobias Thienel

Many things of which the state has gained knowledge have always had to be classified as state secrets. Whatever else it may have done, and whatever it may be, the ‘war on terror’ certainly has not led to a decline in that – very far from it, if anecdotal evidence is anything to go by. What the ‘war on terror’, with its very much interlocking aspects of national security and criminal law enforcement, arguably has done is to increase the frequency with which secret material, judged sensitive on the grounds of national security, is adduced in evidence in criminal proceedings: see Serrin Turner and Stephen J. Schulhofer, The Secrecy Problem in Terrorist Trials, 2005, p. 9. But not only in criminal trials: if, for instance, measures are taken against a person not in the course of a prosecution, but in the furtherance of public security by the police and other authorities, it may have to be shown in court that this person really is or was a threat to society. What, then, if evidence supporting such a finding is shown to the court, but is kept from the person concerned because it is secret material? Does that violate the right to a fair trial, either at all or even necessarily? I have previously concerned myself with a closely related question in the olden days of The Core, and now gather up the threads, as it were, in the light of recent events. Continue reading →