In today’s Chamber judgment in the case of Fernández Martínez v. Spain (application no. 56030/07), which is not final, the European Court of Human Rights held, by a majority, that there had been:

no violation of Article 8 of the European Convention on Human Rights.

The case concerned the decision not to renew of the contract of a priest, who was married with five children, to teach Catholic religion and morals, following the publication of an article disclosing his membership of the ‘Movement for Optional Celibacy.’

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The country adopted an action plan in 2007, aimed at strengthening repressive and preventive mechanisms, in line with standards set by the Financial Action Task Force.

Today’s report from the Council of Europe’s MONEYVAL Committee finds that some progress has been achieved in the legislation on money laundering and terrorist financing offences but it still does not fully reflect the requirements of the international standards.

Andorra also now has in place the necessary legislation for the seizure and confiscation of criminal assets, but the lack of means of criminal justice bodies hinders its effectiveness. The number of convictions and the amounts of assets confiscated in proceedings initiated domestically remain modest. No regulatory framework for freezing terrorist assets in accordance with UN Security Council Resolutions has been adopted to date.

The report’s authors confirm that Andorra has subjected a variety of financial businesses and other commercial activities to preventive measures, which require general and risk-specific customer due diligence, the adoption of internal rules and procedures, and the reporting of suspicions of money laundering and terrorist financing, although further improvements are still needed. The supervision mechanisms in place to ensure compliance appear to lack effectiveness.

The report concludes that the Andorran Financial Intelligence Unit has insufficient human and technical resources to perform its tasks. The international co-operation system and practice appear sound and effective: Andorra is able to offer a broad range of judicial assistance measures and the authorities’ attitude is flexible and constructive. There are however some deficiencies regarding exchange of information and co-operation with foreign supervisory authorities.

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In his statement marking 17 May’s International Day Against Homophobia and Transphobia, Jagland said: “In the Council of Europe, we are responding through our institutions and through the establishment of an LGBT Unit within the Secretariat. The Council of Europe is now working with six countries – Albania, Montenegro, Italy, Serbia, Latvia and Poland – to put in place projects on this topic, and I encourage other countries to join this initiative.

“LGBT people still face intolerant attitudes and social barriers across most, if not all, Council of Europe member states. Recent judgments of the European Court of Human Rights point at unjustified bans or administrative obstacles imposed on gay pride parades. They underline problems related to discrimination in granting social rights such as the right to employment.

“National authorities have a responsibility to ensure that their countries meet international commitments, including responding to negative steps taken at local or regional level. Political leaders also bear the responsibility to speak out immediately and strongly against any demonstrations or statements of intolerance or homophobia, especially those made by other politicians.”

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The European Court hearing of the complaint El-Masri v. “The former Yugoslav Republic of Macedonia” (application no. 39630/09)is scheduled for 9h15 local time.

Arguments will centre on the Lebanese-born German’s allegations that he was a victim of a secret “rendition.” He complains that Macedonian police arrested him in December 2003, kept him locked for 23 days in a hotel in Skopje questioning him about alleged ties with terrorist organisations and then handed him over to CIA agents who transferred him, blindfolded and chained, on a special flight to Afghanistan, where he remained in detention until May 2004.

El-Masri says he was beaten, kicked and threatened while interrogated in the small, dirty, dark concrete cell in which he was kept in a brick factory, north of the Kabul business centre, known as the ‘Salt pit.’

In March 2004 he started a hunger strike to protest at being kept in detention without charges. In April of the same year, 37 days into his hunger strike, El-Masri claims that he was force-fed through a tube which made him severely ill and bedridden for several days.

In May 2004, he says he began a second hunger strike a week before he was taken, blindfolded and handcuffed, onto an airplane first to Albania and then to Germany – to Frankfurt International Airport. El-Masri weighed then about 18 kilos less that a few months earlier when he had left Germany. Immediately upon his return to Germany, he contacted a lawyer and started legal action.

The position of the Government of “The former Yugoslav Republic of Macedonia” is that El-Masri entered the country on 31 December 2003 and was interviewed by the police on suspicion of travelling with false documents. He was allowed entry into the country and then left over the border crossing into Kosovo.

Relying on Article 3 (prohibition of inhuman and degrading treatment), El-Masri complains in particular that he had been ill-treated in a hotel in Skopje, that he had been transferred to a CIA rendition team at the Skopje airport which had led to his ill-treatment in Afghanistan.

Relying further on Articles 5 (right to liberty and security) and 8 (right to respect for private and family life), he alleges the direct responsibility of the “the former Yugoslav Republic of Macedonia” for the entire period of his captivity between 31 December 2003 and his return to Albania on 28 May 2004.

In this regard, he complains that he had been detained unlawfully and kept incommunicado, without any arrest warrant, and that he had never been brought before a judge. The absence of a prompt and effective investigation by the Macedonian authorities into his credible allegations, he claims, had been in breach of Articles 3, 5
and 13 (right to an effective remedy). Lastly, he argues that he and the public, as a whole, had a right, under Articles 3, 5, 10 (freedom of expression and information) and
13 to the truth as to whether he had been subject to the secret rendition programme.

In its final decision in the case of Ellis and Simms and Martin v. the United Kingdom (application nos. 46099/06 and 46699/06) delivered on 25 April, the European Court of Human Rights unanimously declared the application inadmissible.

The case concerned the applicants’ complaints that they had been convicted in an unfair trial as a result of the decision to allow an anonymous witness’ evidence against them.

Principal facts

The applicants, Marcus Ellis, Rodrigo Simms and Nathan Antonio Martin, are British nationals who were born in 1980, 1984 and 1978 respectively and are currently detained in prison.

In January 2003, two young women were killed, and two others were injured in a shooting outside a party at a Birmingham hairdressing saloon. It was undisputed that the shooting was gang-related, and the prosecution case was that it had been carried out by members of the Burger Bar gang in a revenge attack on members of the rival Johnson Crew gang. The victims of the shooting were not members of either gang and were caught in the cross-fire.

The applicants were charged with murder and attempted murder. The prosecution relied on evidence as to the purchase of the car used in the shootings as well as telephone calls made by the applicants, including cell site evidence providing information on the locations from which the calls were made.

Witnesses to the shooting were generally unwilling to come forward fearing retaliation. Only five witnesses were prepared to make statements but did not want their identities to be disclosed. One of the witnesses, who was given the name ‘Mark Brown,’ for the purposes of the trial, claimed to have seen Mr Ellis and Mr Martin in the car from which the shots were fired.

Background information about the witnesses was disclosed by the prosecution. It was disclosed that Mark Brown had links to the junior arm of the Johnson Crew and that he had a grudge against three of the people in the car. Details of his criminal background and prison terms served were also disclosed.

The trial judge allowed Mark Brown to give anonymous evidence at trial. He noted that it was not disputed that Mark Brown reasonably feared retribution both personally and for his families if his identity were made known. He considered the possible support for Mark Brown’s evidence and the relevant case-law of the European Court of Human Rights on the right to a fair trial.

He examined closely the different interests involved, namely of society and victims to have criminals tried and punished, of witnesses to be protected and of the accused to be able to properly defend themselves. He noted that there had been extensive disclosure in Mark Brown’s case which would permit detailed crossexamination by the applicants’ lawyers. He kept his ruling under review and revisited it a number of times following further disclosure and on the invitation of the defence.

Prior to Mark Brown taking the witness stand, the judge directed the jury that the fact that Mark Brown was giving evidence anonymously restricted the defence in the conduct of their cases. At the conclusion of the prosecution case, the trial judge rejected a defence submission that there was no case to answer in respect of the applicants.

He noted that Mark Brown had been cross-examined most effectively for several days and concluded that there was sufficient other evidence pointing to the applicants’ participation in the shootings to allow the jury to consider Mark Brown’s evidence.

In his later summing up and directions to the jury, the trial judge highlighted the weak aspects of Mark Brown’s evidence and told the jury to ignore his evidence if they doubted his reliability or were not satisfied that there was other evidence, apart from his statement, of the applicants’ involvement in the shooting.

In March 2005, the applicants were found guilty and sentenced to life imprisonment. Their appeals were dismissed by the Court of Appeal which commended the conduct of the case and the rulings by the trial judge.

Decision of the Court

Article 6 §§ 1 and 3 (d) (fair trial)

The Court noted that it had recently examined the requirements of Article 6 § 3 (d) in the context of absent witnesses (as opposed to anonymous witnesses) in the case of Al-Khawaja and Tahery v. the United Kingdom (Grand Chamber), nos. 26766/05 and 22228/06, 15 December 2011. There, it had explained that Article 6 § 3(d) enshrined the principle that before an accused could be convicted, all evidence against him had normally to be produced in his presence at a public hearing so that it could be challenged. Exceptions to that principle were possible but could not infringe the rights of the defence.

The Court observed that the problems posed by absent witnesses, at issue in Al-Khawaja and Tahery, and anonymous witnesses, as in the present case, were not different in principle. The underlying principle was that defendants should have an effective opportunity to challenge the evidence against them. However, it considered that the precise limitations on the defence’s ability to challenge a witness in proceedings differed in the two cases and that different considerations therefore arose.

Unlike absent witnesses, anonymous witnesses were confronted in person by defence counsel, who was able to press them on any inconsistencies in their account. The judge, the jury and counsel were able to observe the witnesses’ demeanour under questioning and form a view as to their truthfulness and reliability. The extent of the disclosure regarding anonymous witnesses also had an impact on the extent of the limitations on the defence.

The Court concluded, applying the approach in Al-Khawaja and Tahery, that in cases concerning anonymous witnesses, Article 6 § 3 (d) imposed three requirements: first, there had to be a good reason to keep secret the identity of the witness; second, the Court had to consider whether the evidence of the anonymous witness was the sole or decisive basis of the conviction; and third, where a conviction was based solely or decisively on the evidence of anonymous witnesses, the Court had to satisfy itself that there were sufficient counterbalancing factors, including strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place.

In this case, the Court emphasised that there was a clear public interest in ensuring that gang-related crime was prosecuted, and that allowing witnesses to give evidence anonymously was an important tool in enabling such prosecutions. It had not been disputed that Mark Brown feared retribution had his identity been disclosed and the Court therefore accepted that there had been good reasons to permit him to give evidence anonymously.

As to the sole and decisive nature of the evidence, the Court referred to the other prosecution evidence in the case. It was satisfied that Mark Brown’s evidence was not the “sole evidence” but accepted, like the trial judge, that there was a possibility that his evidence might have been decisive in respect of at least some of the applicants.

It was therefore necessary to examine the counterbalancing factors in place to permit a fair and proper assessment of the reliability of Mark Brown’s evidence. The Court referred to a number of aspects of the trial.

First, the applicants’ lawyers, the judge and the jury had all been able to make their own assessment of the reliability of Mark Brown’s statements, given that they all could see and hear him give evidence and could therefore observe his behaviour during the trial.

Second, the trial judge had ruled on the question of the admission of Mark Brown’s anonymous evidence several times, each time conducting a detailed examination of the relevant issues and bearing in mind the need to ensure a fair trial.

Third, the judge had emphasised the need for independent evidence implicating the applicants in the shootings.

Fourth, the jury had been warned by the judge to approach Mark Brown’s evidence with caution and the judge had given them specific instructions about the limitations on the defence and the need for supporting evidence.

Fifth, there had been substantial disclosure about Mark Brown which had provided extensive material for cross-examination. Finally, effective cross-examination of Mark Brown had in fact taken place. The Court concluded that the applicants had been able to challenge effectively the reliability of Mark Brown’s evidence.

The Court was accordingly satisfied that the jury had been able to conduct a fair and proper assessment of the reliability of Mark Brown’s evidence in the applicants’ trial. It therefore dismissed the applicants’ complaints and declared the case inadmissible.

Here is the court’s full statement:

Othman (Abu Qatada) v. the United Kingdom (application no. 8139/09)

Today a Panel of the Grand Chamber composed of Judges Tulkens, Casadevall, Vajić, Jočienė and Potocki met to consider a request for referral submitted by Mr Othman
under Article 43 § 11 of the European Convention on Human Rights.

That request had been submitted by Mr Othman at 11.13 p.m. (French time) on Tuesday 17 April 2012.

The Panel found that the request had been submitted within the three month time-limit for such requests. However, it considered that the request should be refused.

Accordingly, the Chamber’s judgment of 17 January 2012 is now final. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its implementation.

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Pieter Omtzigt (photo), who is preparing a report on ‘Keeping political and criminal responsibility separate,’ wants more information on why Haarde faced court proceedings for failing to take appropriate ministerial action to avert the 2008 banking crisis.

The Former Icelandic Prime Minister was convicted last month of negligence related to the collapse of his nation’s banking system but was cleared of three other charges and will face no punishment.

During his visit, Omtzigt is expected to meet with Haarde, his defense counsel and the prosecutor of the case. He will also meet the Chair of Iceland’s Constitutional Council, as well as two constitutional law professors and members of the Icelandic delegation to the Parliamentary Assembly.

As part of the preparation of his report, Omtzigt will also visit Ukraine to look into the criminal charges filed against former Prime Minister Yulia Tymoshenko and several members of her government.

The Assembly’s Committee on Legal Affairs and Human Rights will hold a hearing on this issue on 21 May in Paris.

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In its annual report published today, the Council of Europe Group of States against Corruption (GRECO) pinpoints the strengths and weaknesses of member states’ regulatory systems.

GRECO president Marin Mrčela said: “States are taking important steps to fight corruption and increase the transparency of political funding but many improvements are needed.

“Governments must commit both political will and adequate resources, so corruption can be prevented and fought effectively.”

The report reveals that the transparency of donations in kind, party membership fees, loans or sponsorship received by political parties are often neglected by legislation.

Anonymous donations are still possible in some countries. Financial information is often not published nor is it easily accessible. A large number of states fail to have a truly independent supervisory body and in some states such a body does not exist or has limited functions. Sanctions are often weak, inflexible, limited in scope or not applied.

The GRECO report confirms that some states need to replace fragmented laws with comprehensive anti-corruption legislation to strengthen the punishment of bribery and trading in influence offences.

According to the report, private sector bribery is a form of corruption that is not yet criminalised in some countries. Where it is criminalised, the sanctions are often weak. Many countries tend to treat some types of corruption more seriously than others. For example, the sanction for passive bribery in the public sector is often more severe than for the active side of the offence. In several states prosecutions in respect of corruption offences are rare.

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Some $140 billion annually is generated by match-fixing alone, according to film-maker Hervé Martin Delpierre (photo), who spent 18 months investigating the global dimensions of the danger.

He visited the Council of Europe today for the world premiere of his documentary ‘Sport, Mafia and Corruption’ and for Parliamentary Assembly debates on match-fixing and sports governance.

“We are confronted by a gigantic phenomenon,” the director said. “Sport is in danger.”

During his inquiry, Delpierre uncovered a world in which highly-organised criminal networks find it all too easy to corrupt sports stars.

Interview: Five minutes with Hervé Martin Delpierre [fr]

The Essential

Press Conference: Good governance and ethics in sport

News: Platini – “We must end organised cheating”

Podcast: Will illegal betting threaten Europe’s year of sport?

Hervé Martin Delpierre’s film will be shown by the ARTE television station on 8 May.

In its Chamber judgment in the case Yordanova and Others v. Bulgaria (application no. 25446/06), which is not final, the European Court of Human Rights held, unanimously, that in the event of any future enforcement of the removal order against the applicants, there would be:

A violation of Article 8 (right to private and family life) of the European Convention on Human Rights.

The case concerned the Bulgarian authorities’ plan to evict Roma from a settlement situated on municipal land in an area of Sofia called Batalova Vodenitsa. The Court found that the removal order had been based on a law and reviewed under a decision-making procedure, neither of which required the authorities to balance the different interests involved.

Principal facts

The applicants are 23 Bulgarian nationals who live in the Batalova Vodenitsa settlement, a neighbourhood in the outskirts of Sofia, which houses about 250 other Roma. They arrived and settled there in the 1960s and 1970s, often with their extended families; the more recent arrivals were in the 1990s. Their homes are makeshift and built without authorisation. There is no sewage or plumbing. The people who live there use water from two public fountains.

The land on which they settled was first owned by the State and then, as of 1996, by the Sofia municipality. The applicants, like the rest of the settlement’s inhabitants, never sought to regularise the houses they had constructed. The applicants claimed that they could not apply for regularisation because they were poor and isolated from the rest of society. Furthermore, the relevant law did not make it possible for them to obtain ownership of their houses.

It is undisputed that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and could not be legalised without substantial reconstruction.

As from the beginning of the 1990s, tension grew in several regions of Sofia between Roma people living in settlements and their non-Roma neighbours. The issue of Roma settlements was widely debated and a number of leading politicians spoke about the need to empty the “Roma ghettos” in Sofia. Until 2005, neither the State, nor the municipal authorities ever attempted to remove the applicants and their families.

In May 2006, the Sofia municipal council transferred ownership of land adjacent to that occupied by the applicants to a private investor. A few months before that, on 17 September 2005, the district mayor had ordered the applicants’ forcible removal, which had been stayed by the courts pending appeal against it. In January 2006, the Sofia City court held that the removal order had been lawful, which was later confirmed by the Supreme Administrative Court. The courts, ignoring the applicants’ argument that a removal would be disproportionate as they had lived in the settlement for decades, found that as they had not shown a valid legal ground for occupying the land, the removal order had been lawful.

In June 2006, the municipal authorities announced their intention to evict the unlawful residents of Batalova Vodenitsa, including the applicants, within a week and to demolish their homes. As a result of political pressure, mainly from European Parliament members, the eviction did not take place. However, the mayor publicly stated that it was not possible to find alternative housing for the settlement’s inhabitants, because they had not been registered as people in need of housing and the municipality could not give them priority over other people who had been on the waiting list for many years.

The mayor insisted that the removal order had to be enforced and the fact that the Roma families had nowhere to go was irrelevant.

Following another attempt to remove the applicants, in June 2008 the Court indicated to the Bulgarian Government under its rule on interim measures, that the applicants should not be evicted until such time as the authorities assured the Court of the measures they had taken to secure housing for the children, elderly, disabled or otherwise vulnerable people.

The district mayor informed the Court that she had suspended the removal order pending the resolution of the housing problems of the settlement’s residents. The Court then lifted its interim measure. In the meantime, a ten-year national programme was adopted for the improvement of the housing conditions of Roma in Bulgaria.

A monitoring report of 2010 did not record any progress made in housing for Roma. On the other hand, media reports suggested that construction of housing for Roma was underway in several regions in Bulgaria.

Decision of the Court

Article 8 (right to private and family life)

The Court observed that as the applicants had lived with their families in the makeshift houses for many years, those houses had become their homes, irrespective of whether they occupied the houses lawfully or not. If the applicants were expelled from their settlement and community, their home as well as their private and family lives, would therefore be negatively affected.

The Court considered that it was legitimate for the authorities, for the purposes of urban development, to try to recover land from people who occupied it unlawfully. There was no doubt that the authorities were in principle entitled to remove the applicants who occupied municipal land unlawfully. However, for several decades the authorities had tolerated the unlawful Roma settlements in Batalova Vodenitsa. That had allowed the applicants to develop strong links with the place and to build a community life there.

Notwithstanding the above, there was no obligation under the Convention to provide housing to the applicants. However, an obligation to secure shelter to particularly vulnerable individuals might flow from Article 8 in exceptional cases.

The Court noted, that under the relevant law at the time, the municipal authorities had not been required to consider the proportionality of a possible removal of the people who lived at the settlement, or the various interests involved. The Court found that approach in itself problematic as it failed to comply with the principle of proportionality.

In the applicants’ case, it was undisputed that their houses did not meet basic sanitary and building requirements, which entailed safety and health concerns. The Court noted, however, that the Government had not shown that alternative methods for dealing with those problems, such as legalising buildings where possible, constructing public sewage and water-supply facilities and providing assistance to find alternative housing where eviction was necessary, had been studied seriously by the relevant authorities.

Therefore, the Government’s assertion that the applicants’ removal was the appropriate solution was weakened.

In addition, before issuing the removal order, the authorities had not considered the risk of the applicants becoming homeless if removed, and had instead declared that that risk was irrelevant.

The Court also emphasised that, in the context of Article 8, the applicants’ specificity as a socially disadvantaged group, as well as their particular needs, had to be considered in the proportionality assessment which the national authorities were obliged to undertake, but had not done.

Finally, as regards the Government’s argument that the applicants’ neighbours had complained against them, the Court noted that some of the complaints, such as those
about health risks and offences allegedly committed by Roma, could have justified appropriate measures if the principle of proportionality had been observed. The authorities had not investigated allegations about such offences. Other complaints, however, contained illegitimate demands.

The Court concluded that the 2005 removal order had been based on a law, and reviewed under a decision-making procedure, neither of which required that the order be
proportionate to the aim it pursued. There would, therefore, be a violation of Article 8, if the removal order were enforced.

Other articles

The Court found that no separate issue arose under Article 14, and that it was unnecessary to examine the applicants’ other complaints separately.

Article 46 (enforcement of the judgment)

The Court held that the general measures the authorities would have to adopt in order to implement the judgment, so as to avoid future similar violations, had to include a
change in law and practice to ensure that orders to recover public land or buildings, even in cases of unlawful occupation, identified clearly the aims pursued with the recovery, the individuals affected and the measures to secure proportionality.

As regards the individual measures needed to put a stop to the violation and provide redress for any damage caused to the applicants, the Court held that the 2005 removal order had to either be repealed or suspended pending measures to ensure that the Bulgarian authorities had complied with the Convention requirements, as clarified in the judgment.

Just satisfaction (Article 41)

The Court held that its finding of a violation of Article 8 constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. As for costs and expenses, the Court held that Bulgaria had to pay the applicants 4,000 Euros.

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