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Published online by Cambridge University Press: 01 June 2017
The use of proportionality and balancing by the European Court of Human Rights (ECtHR) is inconsistent and does not provide clear guidelines from which policies can be drafted that could strike a fair balance between individual rights and public interests while not impairing the essence of the rights at stake. While ad hoc and unprincipled balancing may be justified on the theoretical level, on the practical level a policymaker seeking to understand which infringements constitute clear violations of the European Convention on Human Rights (ECHR) is left confused. This article adds clarity to this state of bewilderment by breaking down several aspects of the ECHR rights to a fair trial into clear-cut ‘red lines’, or minimum thresholds of protection. Overstepping those could result in a violation of the right concerned. Identifying these red lines is intended to assist legislators and policymakers in drafting laws and policies that conform with the obligations of their states under the ECHR, and to instruct policymakers outside the member states of the Council of Europe. Because of its unique characteristics, as well as the volume and breadth of its case law, the jurisprudence of the ECtHR can be a lodestone for the consolidation of an international human rights community based on shared values. The unique contribution of this article is the assessment of ECtHR jurisprudence not only on its own merits, but also in comparison with the jurisprudence of other international courts.
1 Möller, Kai, ‘Proportionality: Challenging the Critics’ (2012) 10 International Journal of Constitutional Law 709, 728–29CrossRefGoogle Scholar.
2 European Convention on Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR).
3 ‘[T]he next phase in the life of the Strasbourg Court might be defined as the age of subsidiarity, a phase that will be manifested by the Court's engagement with empowering the Member States to truly “bring rights home”’: Spano, Robert, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487, 491 CrossRefGoogle Scholar. See Protocol No 15 Amending the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No 213.
4 Greer, Steven, The European Convention on Human Rights: Achievements, Problems, and Prospects (Cambridge University Press 2006) 1CrossRefGoogle Scholar.
5 ECHR (n 2) arts 41, 46. Under art 8 of the Statute of the Council of Europe (entered into force 3 August 1949) 87 UNTS 103, ETS 001, the Committee of Ministers (the political organ that supervises the execution of judgments) may expel member states that seriously violate their obligation to accept the principles of the rule of law and human rights and to collaborate sincerely in the realisation of the aims of the Council.
6 For a survey of the influence of the ECtHR on domestic processes, see Keller, Helen and Sweet, Alec Stone, (eds) A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008)Google Scholar; Gerards, Janneke and Fleuren, Joseph (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis (Intersentia 2014)Google Scholar. In the sphere of defendants’ rights, see Croquet, Nicolas AJ, ‘The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?’ (2011) 11(1) Human Rights Law Review 91, 93Google Scholar.
7 Croquet, ibid 124 and the examples discussed there.
8 ECtHR, Wemhoff v Germany, App no 2122/64, 27 June 1968, para 8.
9 Senden, Hanneke, Interpretation of Fundamental Rights in a Multilevel Legal System: An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Intersentia 2011) 16Google Scholar.
10 Letsas, George, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Ulfstein, Geir, Føllesdal, Andreas and Peters, Birgit (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press 2013) 106Google Scholar.
11 In order to argue that the Court's interpretation of rights has a legally binding effect on states that are not parties to the ECHR, one would need to demonstrate their customary status and the development of customary international law. For discussions about the ECHR and customary internal law, see Ziemele, Ineta, ‘Customary International Law in the Case Law of the EurCourtHR – The Method’, in The Judge and International Custom (Council of Europe 2012) 75Google Scholar; Francioni, Francesco, ‘Customary International Law and the European Convention on Human Rights’ (1999) 9 Italian Yearbook of International Law 11 Google Scholar; Cunningham, Andrew J, ‘The European Convention on Human Rights, Customary International Law and the Constitution’ (1994) 43 International and Comparative Law Quarterly 537 Google Scholar.
12 Cunningham, ibid 541.
13 ECHR (n 2) Preamble, para 5.
14 Cunningham (n 11) 542.
15 This does not exclude, however, taking into consideration the particularities of each jurisdiction. Some of the Court's approaches diverge from customary international law, and could be argued to reflect unique European ideals and values, such as the Court's stand on the death penalty: Francioni (n 11) 21.
16 For the Court's referencing to international, regional and foreign materials, see Senden (n 9) 255–58.
17 For a discussion of the objectives of ICL, see Mirjan R Damaska, ‘What is the Point of International Criminal Justice?’, Yale Law School Scholarship Repository, (2008) Faculty Scholarship Series, Paper 1573, http://digitalcommons.law.yale.edu/fss_papers/1573; Klamberg, Mark, ‘What are the Objectives of International Criminal Procedure? Reflections on the Fragmentation of a Legal Regime’ (2010) 79 Nordic Journal of International Law 279 Google Scholar.
18 eg, art 21 of the ICC Statute (Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90), which states the formal legal sources of the ICC, limits the room for jurisprudence cross-fertilisation. Although it does not explicitly prohibit importing case law from other international courts, art 2 refers positively only to its own prior interpretation. Accordingly, the ICC has displayed reluctance to apply principles drawn by ad hoc tribunals. It is thus concluded by some that the ICC strives to establish itself as a ‘separate epistemic community’: Sliedregt, Elies van, ‘Pluralism in International Criminal Law’ (2012) 25 Leiden Journal of International Law 847, 848–49Google Scholar.
19 Stahn, Carsten and van den Herik, Larissa, ‘“Fragmentation”, Diversification and “3D” Legal Pluralism: International Criminal Law as the Jack-in-the-Box?’ in van den Herik, Larissa and Stahn, Carsten (eds), The Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff 2012) 1, 55Google Scholar (offering a framework that acknowledges the fact that ICL is pluralistic by nature while addressing the need to maintain a certain level of internal coherence).
20 ICTY, Prosecutor v Tadić, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, IT-94-I-T, Trial Chamber, 10 August 1995, [25].
21 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
22 ICC Statute (n 18) art 21(3).
23 ICTY, Prosecutor v Delalić, Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudonymed ‘B’ through to ‘M’, IT-96-21-T, Trial Chamber, 28 April 1997, [27]–[28] (Prosecutor v Delalić).
24 This critique has been voiced with regard to what many see as unrestrained prosecutorial discretion in ICL. Heated debate also surrounds the practice of ‘witness proofing’. Whereas the ICC discarded the practice, deeming it hazardous to the spontaneity of court testimony, the ICTY and ICTR justified the practice as necessary, considering the unique circumstances of the cases brought before them: Stahn and van den Herik (n 19) 52–54; Greenawalt, Alexander KA, ‘Justice Without Politics? Prosecutorial Discretion and the International Criminal Court’ (2007) 39 NYU Journal of International Law and Politics 583 Google Scholar. But see Nerlich, Volker, ‘Daring Diversity: Why There is Nothing Wrong with “Fragmentation” in International Criminal Procedure’ (2013) 26 Leiden Journal of International Law 777 Google Scholar.
25 Boas, Gideon and others, International Criminal Law Practitioner Library: International Criminal Procedure, Vol 3 (Cambridge University Press 2011) xivGoogle Scholar.
26 Croquet (n 6) 108.
27 For a critical discussion on cross-fertilisation between international criminal tribunals and the ECtHR see Mariniello, Triestino and Lobba, Paolo, ‘The Cross-Fertilisation Rhetoric in Question: Use and Abuse of the European Court's Jurisprudence by International Criminal Tribunals’ (2015) 84 Nordic Journal of International Law 363 Google Scholar.
28 Janneke Gerards, ‘The European Court of Human Rights and the National Courts: Giving Shape to the Notion of “Shared Responsibility”’ in Gerards and Fleuren (n 6) 39 (the essential object of the ECHR is ‘to effectively protect individual fundamental rights and to guarantee a reasonable minimal level of protection of fundamental rights throughout the Council of Europe’); Greer (n 4) 7 (arguing that the protection of rights within the context of the principles of democracy and the rule of law is the ultimate aim of the Convention and should accordingly guide its interpretation).
29 Despite its absence from the text of the ECHR, the use of proportionality in assessing violations of Convention rights has become the norm in the Court's adjudication process: Eissen, Marc-André, ‘The Principle of Proportionality in the Case Law of the European Court of Human Rights’ in Macdonald, Ronald St J, Petzold, Herbert and Matscher, Franz (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 125, 146Google Scholar (‘the principle of proportionality has acquired “the status of a general principle in the Convention system”’); Alec Stone Sweet, ‘On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court’, Yale Law School Legal Scholarship Repository, (2009) Faculty Scholarship Series, Paper 71, 6, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1070&context=fss_papers; Christoffersen, Jonas, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff 2009) 37Google Scholar.
30 Generally, proportionality analysis is a constructed test made up of three independent, yet inter-related, sub-stages: suitability, necessity/least restrictive means, and proportionality in the strict sense/balancing test.
31 Sottiaux, Stefan and van der Schyff, Gerhard, ‘Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights’ (2008) 31 Hastings International and Comparative Law Review 115, 131–32Google Scholar.
32 Central to this line of critique is the loss of rights’ special normative force in the course of a ‘neutral’ balancing process where rights and public interests are weighed against each other on the same plane: Kumm, Mattias, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos, George (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart 2007) 131, 141Google Scholar; Tsakyrakis, Stavros, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of Constitutional Law 468, 471–74CrossRefGoogle Scholar.
33 Möller (n 1) 715.
34 Tsakyrakis (n 32) 474.
35 Christoffersen (n 29) 114 (arguing that the least restrictive means test was rejected by the ECtHR on principle grounds, meaning that the Court does not view least restrictive means to be a necessary stage in proportionality analysis).
36 Brems, Eva and Lavrysen, Laurens, ‘“Don't Use a Sledgehammer to Crack a Nut”: Less Restrictive Means in the Case Law of the European Court of Human Rights’ (2015) 15 Human Rights Law Review 139 Google Scholar.
37 ibid 155–56, referring to ECtHR, M v Switzerland, App no 41199/06, 26 April 2011, para 66; ECtHR, Association Rhino and Others v Switzerland, App no 48848/07, 11 October 2011, para 65; ECtHR, Schweizerische Radio- und Fernsehgesellschaft SRG v Switzerland, App no 34124/06, 21 June 2012, para 61.
38 Tsakyrakis (n 32) 480–81. Kumm ((n 32) 140) argues basically the same (‘If all you have in virtue of having a right is a position whose strength in any particular context is determined by proportionality analysis, there are no obvious reasons for narrowly defining the scope of interests protected as a right. Shouldn't all acts by public authorities affecting individuals meet the proportionality requirement?’).
39 Kumm (n 32) 139; but see Arai-Takahashi, Yutaka, ‘Proportionality’ in Shelton, Dinah (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press 2013) 446Google Scholar; Pavlakos, George, ‘Constitutional Rights, Balancing and the Structure of Autonomy’ (2011) 24 Canadian Journal of Law and Jurisprudence 129 CrossRefGoogle Scholar.
40 Gerards, Janneke and Senden, Hanneke, ‘The Structure of Fundamental Rights and the European Court of Human Rights’ (2009) 7 International Journal of Constitutional Law 619, 632–34Google Scholar.
41 ibid 634.
42 ibid 639.
43 ibid 644.
44 Arai, Yutaka, ‘System of Restrictions’ in Dijk, Pieter van and others (eds), Theory and Practice of the European Convention on Human Rights (4th edn, Intersentia 2006) 340Google Scholar; Sadurski concludes the same in Wojciech Sadurski, ‘Is There Public Reason in Strasbourg?’, research paper, Sydney Law School, 6 May 2015, 15/46, 2–3.
45 Šušnjar, Davor, Proportionality, Fundamental Rights, and Balance of Powers (Brill 2010) 90Google Scholar.
46 Gerards, Janneke, ‘How to Improve the Necessity Test of the European Court of Human Rights’ (2013) 11 International Journal of Constitutional Law 466, 479Google Scholar; Sadurski (n 44) 2.
47 Gerards, Janneke, ‘Judicial Deliberations in the European Court of Human Rights’ in Huls, Nick, Adams, Maurice and Bomhoff, Jacco (eds), The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (TMC Asser Press 2009) 407, 417, 62CrossRefGoogle Scholar.
48 Sadurski (n 44).
49 ibid 3–5.
50 ibid 10.
51 Tsakyrakis (n 32) 488.
52 ibid 488.
53 ibid 492.
54 Kumm, Mattias and Walen, Alec D, ‘Human Dignity and Proportionality: Deontic Pluralism in Balancing’ in Huscroft, Grant, Miller, Bradley W and Webber, Gregoire (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press 2014) 67, 69Google Scholar (defining deontology broadly, as encompassing ‘a range of reasons for giving some interests more or less priority over others’).
55 ibid.
56 ibid 89.
57 Arai-Takahashi, Yutaka, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) 36Google Scholar. One of the interpretive principles guiding the ECtHR is the principle that the Convention is designed to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’. On the interpretive principles of the Court, see Greer (n 4) 193–230.
58 Gerards, Janneke, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80, 112CrossRefGoogle Scholar.
59 Christoffersen (n 29) 145 (arguing that the growing use of the concept diminishes the scope of its protection to the extent that ‘the use of the notion of human dignity entails a departure from a measure of absolute legal protection of human dignity’).
60 ibid 149. Arai-Takahashi ((n 57) 37) also holds that the notion of the ‘very essence’ is closely associated with or included in the proportionality assessment.
61 Arai-Takahashi (n 57) 37.
62 ibid 37–39.
63 Goss, Ryan, Criminal Fair Trial Rights (Hart 2014) 198–201 Google Scholar; eg, ECtHR, Goth v France, App no 53613/99, 16 May 2002 (ruling that the requirement of surrendering to custody as a requirement of admissibility of appeal deprived the petitioner of liberty, and ‘undermined the very essence of the right to appeal by placing a disproportionate burden on the appellant that upset the fair balance that had to be maintained between the need to enforce judicial decisions and the need to ensure access to the Court of Cassation and that the defence was able to exercise its rights’). See also ECtHR, Omar v France, App no 24767/94, 29 July 1998, para 40.
64 ECtHR, Gäfgen v Germany, App no 22978/05, 1 June 2010, para 167; ECtHR, Jalloh v Germany, App no 54810/00, 11 July 2006, para 105; ECtHR, Al Nashiri v Poland, App no 28761/11, 24 July 2014, para 564.
65 ECtHR, El Haski v Belgium, App no 649/08 25, September 2012.
66 ECtHR, Othman (Abu Qatada) v United Kingdom, App no 8139/09, 17 January 2012.
67 In response to the UK's argument that the applicant had to establish ‘beyond reasonable doubt’ that the evidence in issue had been obtained by torture, the ECtHR took the view that it would be unfair to impose on the applicant a burden of proof that went beyond the demonstration of a ‘real risk’ based on the special difficulties in proving allegations of torture: Othman (Abu Qatada) v United Kingdom, ibid para 276. The Committee Against Torture (ComAT) has held that the applicant is required only to demonstrate that his or her allegations of torture are ‘well-founded’; this shifts the burden to the state to prove the contrary: Nowak, Manfred and McArthur, Elizabeth, The United Nations Convention Against Torture: A Commentary (Oxford University Press 2008)Google Scholar para 82 (CAT Commentary).
68 Jalloh v Germany (n 64).
69 ibid para 119 (emphasis added).
70 Gäfgen v Germany (n 64).
71 This point received harsh critique by the dissenting judges: ibid, joint partly dissenting opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power, para 9. For further discussion of the case and its ramifications, see Stijn Smet, ‘Gäfgen v. Germany: Threat of Torture to Save a Life?’, Strasbourg Observers, 6 July 2010, http://strasbourgobservers.com/2010/07/06/389.
72 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85 (CAT), art 15.
73 CAT Commentary (n 67) para 75 (‘The IAPL draft explicitly referred to “any judicial or administrative proceedings”. Although this explanation was deleted in the final version of Article 15, nothing in the travaux préparatoires suggests that the scope of application of Article 15 was meant to be reduced to judicial proceedings’). This is confirmed in contemporary case law, with no exception made for preventive purposes, and also when the torture is carried out by a third state agent (paras 76–80).
74 Thienel, Tobias, ‘The Admissibility of Evidence Obtained by Torture under International Law’ (2006) 17 European Journal of International Law 349, 357Google Scholar (‘The phrase “any statement” may also cover a statement of a person other than the one against whom the evidence is brought and the phrase “any proceedings” also extends to proceedings against a person other than the victim of torture’).
75 CAT Commentary (n 67) para 86. Defining the scope of the exclusionary rule requires reflecting on what distinguishes torture from other cruel, inhuman or degrading treatment. The two main approaches in this respect are the purposive versus the severity. According to the severity approach, the severity of the treatment is the decisive element that distinguishes torture from cruel, inhuman or degrading treatment. According to the purposive approach, the purpose of the act, rather than its severity, is the decisive distinguishing element: Akmal Niyazmatov, ‘Evidence Obtained by Cruel, Inhuman or Degrading Treatment: Why the Convention Against Torture's Exclusionary Rule Should be Inclusive’ (2011) Cornell Law School Inter-University Graduate Student Conference Papers, Paper 44.
76 Thienel (n 74) 365.
77 United Nations, Status of Ratification, http://indicators.ohchr.org.
78 Thienel (n 74) 363.
79 ibid. Scharf has situated the prohibition in the more modest realm of ‘international standards of justice’, arguing for the expansion of the exceptions to the torture evidence exclusionary rule in the context of the hybrid UN Cambodia Genocide Tribunal: Scharf, Michael P, ‘Tainted Provenance: When, if Ever, Should Torture Evidence be Admissible’ (2008) 65 Washington & Lee Law Review 129, 136Google Scholar; but see McKeever, David, ‘Evidence Obtained through Torture before the Khmer Rouge Tribunal: Unlawful Pragmatism?’ (2010) 8 Journal of International Criminal Justice 615 Google Scholar.
80 UNGA Res 43/173 (9 December 1988), UN Doc A/RES/43/173.
81 ibid Principle 16.
82 ICTY, Rules of Procedure and Evidence, UN Doc IT/32/Rev. 1(1994), r 95.
83 ICTY, Rules of Procedure and Evidence, UN Doc IT/32/Rev. 40(2007), r 95.
84 Note of the Secretary-General Transmitting the Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (23 August 1995), UN Doc A/50/365–S/1995/728, n 9.
85 ICTR, Rules of Procedure and Evidence of the International Tribunal for Rwanda (entered into force 29 June 1995), UN Doc ITR/3/Rev.1(1995), r 95.
86 SCSL, Rules of Procedure and Evidence of the Special Court for Sierra Leon (amended 7 March 2003), r 95.
87 ICC Statute (n 18) art 69(7).
88 The less categorical wording of these provisions could be attributed to the fact that they are addressed to judges, who are granted more interpretive authority than the executive in a domestic setting. Therefore, the open-ended wording should not be understood as welcoming a flexible interpretation, but as a reflection of the audience to whom it was addressed.
89 UN, Compilation of General Comments and Recommendations adopted by Human Rights Treaty Bodies: General Comment No 20 (27 May 2008), UN Doc HRI/GEN/1/Rev 9 (Vol I) 201, para 12 (emphasis added).
90 CAT Commentary (n 67) para 88.
91 UN General Assembly, Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of their Liberty to Bring Proceedings before a Court (6 July 2015), UN Doc A/HRC/30/37, Guideline 12, para 77 (Admissibility of evidence obtained by torture or other prohibited treatment).
92 Gäfgen v Germany (n 64) joint partly dissenting opinion of Judges Rozakis and others, para 2 (‘A criminal trial which admits and relies, to any extent, upon evidence obtained as a result of breaching such an absolute provision of the Convention cannot a fortiori be a fair one. The Court's reluctance to cross that final frontier and to establish a clear or “bright-line” rule in this core area of fundamental human rights is regrettable … [and] risks undermining the effectiveness of the absolute rights guaranteed by Article 3. [The] distinction … introduced into the Court's jurisprudence between the admissibility of statements obtained in breach of the absolute prohibition of inhuman and degrading treatment and the admissibility of other evidence obtained in the same manner … is difficult to sustain’).
93 ECtHR, Teixeira de Castro v Portugal, App no 25829/94, 9 June 1998, para 35; ECtHR, Kostovski v The Netherlands, App no 11454/85, 20 November 1989, para 44.
94 Kostovski v The Netherlands, ibid para 41.
95 ibid para 44; ECtHR, Doorson v The Netherlands, App no 20524/92, 26 March 1996, para 76; ECtHR, Van Mechelen and Others v The Netherlands, App nos 21363/93, 21364/93, 21427/93 and 22056/93, 23 April 1997, para 55; ECtHR, Krasniki v Czech Republic, App no 51277/99, 28 February 2006, para 79; but see ECtHR, Al-Khawaja and Tahery v United Kingdom, App nos 26766/05 and 22228/06, 15 December 2011, para 46 (noting that the sole or decisive rule should not be applied in an inflexible way).
96 Wilde, Bas de, ‘A Fundamental Review of the ECHR Right to Examine Witnesses in Criminal Cases’ (2013) 17 The International Journal of Evidence & Proof 157 CrossRefGoogle Scholar.
97 ECtHR, Marcus Ellis and Rodrigo Simms and Nathan Antonio Martin v United Kingdom, App nos 46099/06 and 46699/06, 10 April 2012.
98 ibid paras 76–78.
99 De Wilde (n 96) 180 and the references in fn 89.
100 ibid 180.
101 ibid 175.
102 ECtHR, Balta and Demir v Turkey, App no 48628/12, 23 June 2015.
103 Summary based on a press release issued by the Registrar of the Court, ECHR 213 (2015), 23 June 2015, para 3 (the anonymous witness could be questioned in a room away from the hearing room, with an audio and video link, enabling the accused to put questions to the witness).
104 ICTY, Rules of Procedure (n 83) r 69(A). r 69(A) of the ICTR Rules and Procedure reads slightly differently (‘In exceptional circumstances, either of the parties may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Chamber decides otherwise’).
105 ICC, Rules of Procedure and Evidence, UN Doc ICC-ASP/1/3 and Corr.1, Pt II.A.
106 Gaynor, F and others, ‘Law of Evidence’ in Sluiter, Göran and others (eds), International Criminal Procedure: Principles and Rules (Oxford University Press 2015) 1015, 1090Google Scholar. For the relevant rules on witness anonymity in additional international and hybrid criminal tribunals, see 1093–95.
107 Office of the High Commissioner for Human Rights and International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (United Nations 2003) 289Google Scholar.
108 ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Public Redacted Version of the Decision on the Protection of Prosecution Witnesses 267 and 353, ICC-01/04-01/07, Trial Chamber II, 20 May 2009, [48] and [53].
109 Croquet (n 6) 119–20.
110 Prosecutor v Tadić (n 20). Note also that on 5 December 1996 the protective measures were lifted, based on the fact that less restrictive measures could suffice to satisfy the requested protection and the parties consented that the protective measures were no longer justified: ICTY, Prosecutor v Tadić, Decision on Prosecution Motion to Withdraw Protective Measures for Witness L, IT-94-I-T, 5 December 1996.
111 McNeal, Gregory S, ‘Unfortunate Legacies: Hearsay, Ex Parte Affidavits and Anonymous Witnesses at the IHT’ (2006) 4(1) International Commentary on Evidence 1, 2Google Scholar.
112 Prosecutor v Tadić (n 20) separate and dissenting opinion of Judge Stephen (at RP 5025).
113 ICTY, Prosecutor v Blaškic, Decision on the Application of the Prosecutor, IT-95-14-T, Trial Chamber I, 2 October 1996; and ICTY, Prosecutor v Blaškic, Requesting Protective Measures for Victims and Witnesses, IT-95-14-T, Trial Chamber I, 5 November 1996, [24]; Prosecutor v Delalić (n 23) [59].
114 ECHR (n 2) art 6. Victims’ rights are not addressed in art 6 but are considered to be protected under other Convention rights: ECtHR, Doorson v The Netherlands, App No 20524/92, 26 March 1996, para 70; ECtHR, Marcello Viola v Italy, App no 45106/04, 5 October 2006, para 51.
115 Prosecutor v Tadić (n 20) [27]. As for the ICC, the implementation of r 81(4) of the ICC Rules of Procedure, discussed above, is also governed by an obligation to protect the well-being, dignity and privacy of victims: ICC Statute (n 18) art 68(1).
116 A question in need of further exploration is whether consolidation is at all feasible or desirable considering that international criminal tribunals must assess admissibility and weight in coming up with their judgments, while the ECtHR looks, after the fact, at whether proceedings ‘as a whole’ were fair.
117 ECHR (n 2) art 5(4) guarantees: ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. This provision has been interpreted to encompass fair trial guarantees.
118 ECtHR, A and Others v United Kingdom, App no 3455/05, 19 February 2009, paras 202–11; ECtHR, Ovsjannikov v Estonia, App no 1346/12, 20 February 2014, para 72; ECtHR, Fodale v Italy, App no 70148/01, 1 June 2006, para 41; ECtHR, Korneykova and Korneykov v Ukraine, App no 56660/12, 24 March 2016, para 68.
119 ECtHR, Lietzow v Germany, App no 24479/94, 13 February 2001, para 47; Schöps v Germany, App no 25116/94, 13 February 2001.
120 A and Others v United Kingdom (n 118) para 220. Special advocates in the UK do not have traditional lawyer–client relationships with detainees, but rather are appointed from a security-cleared panel and cannot reveal the details of the case to the detainee. This clearly poses significant barriers to the possibility of effectively challenging a detention decision. For a critical analysis of the model of special advocates, see Murphy, Cian C, ‘Counter-Terrorism and the Culture of Legality: The Case of Special Advocates’ (2013) 24 King's Law Journal 19 Google Scholar.
121 (n 118).
122 ibid para 220.
123 ibid para 222.
124 ibid para 223.
125 ibid para 224.
126 Report of the Working Group on Arbitrary Detention, Guidelines (n 91) para 81.
127 ibid para 82.
128 Council Regulation (EC) 881/2002 of 27 May 2002 Imposing Certain Specific Restrictive Measures directed against Certain Persons and Entities Associated with Usama bin Laden, the Al-Qaeda Network and the Taliban, and repealing Council Regulation (EC) No 467/2001 [2002] OJ L 139/9.
129 Case T-306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3544 and T-315/01 Kadi v Council and Commission [2005] ECR II-3659.
130 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI.
131 C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.
132 Charter of Fundamental Rights of the European Union [2012] OJ C 326/391.
133 Kadi and Al Barakaat (n 131) para 336.
134 Commission Regulation (EC) 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 Imposing Certain Specific Restrictive Measures directed against Certain Persons and Entities Associated with Usama bin Laden, the Al-Qaeda Network and the Taliban [2008] OJ L 322/25.
135 Case T-85/09 Yassin Abdullah Kadi v Commission [2010] ECR II-5177.
136 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council, United Kingdom v Yassin Abdullah Kadi [2013]; CJEU Press Release No 93/13, 18 July 2013, http://www.statewatch.org/news/2013/jun/ecj-kadi-ms-appeal-prel.pdf.
137 Commission, Council, the United Kingdom v Kadi, ibid paras 111–16.
138 ibid paras 117–27. The ECtHR has recently decided a case involving a similar factual background, holding, inter alia, that the Swiss authorities have a duty to ensure, before freezing assets, that the UN Security Council's listings were not arbitrary: Al-Dulimi and Montana Management Inc v Switzerland, App no 5809/08, 21 June 2016.
139 Commission, Council, UK v Kadi (n 136) paras 128–37.
140 In A and Others v UK (n 118) para 220, the ECtHR reasoned that an applicant accused of attending a terrorist training camp would have to be informed of the specific location and the dates of his alleged attendance so that he could provide the special advocate with exonerating evidence, for example, of an alibi or an alternative explanation for his presence there. Provision of specifics on the allegations obviates the need for specifics on the source. Equally, if that allegation did not form the sole or decisive basis for the order, it could remain closed.
141 For a critique of the ECtHR ruling on the matter, see Londras, Fiona de, ‘Counter-Terrorist Detention and International Human Rights Law’ in Saul, Ben (ed), Research Handbook on International Law and Terrorism (Edward Elgar 2014) 401, 415Google Scholar.
142 For a survey conducted across a selection of EU member states on the matter (UK, France, Germany, Spain, Italy, the Netherlands and Sweden), see Didier Bigo and others, ‘National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges’, CEPS Paper in Liberty and Security in Europe No 78, January 2015.
143 Croquet (n 6) 117–19.
144 ECtHR, Stoichkov v Bulgaria, App no 9808/02, 24 March 2005, para 56.
145 ECtHR, Krombach v France, App no 29731/96, 13 February 2001, para 85.
146 ECtHR Somogyi v Italy, App no 67972/01 18 May 2004, para 66.
147 ECtHR, Sejdovic v Italy [GC] App no 56581/00, 1 March 2006, para 85.
148 ibid paras 86–88.
149 ECtHR, Poitrimol v France, App no 14032/88, 23 November 1993, paras 32–39.
150 Krombach v France (n 145) para 89.
151 Sejdovic v Italy (n 147) paras 91–92.
152 ICCPR (n 21) art 14(3)(d) (‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing’).
153 Jordash, Wayne and Parker, Tim, ‘Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law’ (2010) 8 Journal of International Criminal Justice 487, 489Google Scholar.
154 HRC, Daniel Monguya Mbenge v Zaire, Communication No 16/1977, UN Doc CCPR/C/OP/2, para 14.1 (‘This provision and other requirements of due process enshrined in Article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence. Indeed, proceedings in absentia are in some circumstances … permissible in the interest of the proper administration of justice’).
155 UN International Human Rights Instruments, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies (29 July 1994), UN Doc HRI/GEN/1/Rev.1, 186, General Comment 13, art 14, para 11 (on equality before the courts and the right to a fair and public hearing by an independent court established by law).
156 Gardner, Maggie, ‘Reconsidering Trials in Absentia at the Special Tribunal for Lebanon: An Application of the Tribunal's Early Jurisprudence’ (2011) 43 The George Washington International Law Review 91, 103Google Scholar.
157 Jordash and Parker (n 153) (arguing that art 22 of the Statute of the Special Tribunal for Lebanon (annexed to UNSC Res 1757 (30 May 2007), UN Doc S/RES/1757), which governs trial in absentia, violates international law because, as an ad hoc tribunal, it cannot effectively guarantee a retrial and because it authorises the holding of a trial in the absence of the defendant in circumstances which exceed those narrowly constructed under international law); but see McDermott, Yvonne, Fairness in International Criminal Trials (Oxford University Press 2016) 68–72 Google Scholar (detailing case law which allows voluntary absence from trial).
158 Schabas, William A, ‘In Absentia Proceedings before International Criminal Courts’ in Sluiter, Göran and Vasiliev, Sergey (eds), International Criminal Procedure: Towards a Coherent Body of Law (Cameron May 2009) 335, 336–53Google Scholar.
159 ICTY, Rules of Procedure and Evidence, UN Doc IT/32/Rev 44 (2009), r 80(b); ICTR, Rules of Procedure and Evidence (n 85) r 80(b). The ICC Statute prohibits trials in absentia except in the narrow circumstances in which the accused may be removed from the courtroom on the ground of continuous disruption of the trial. Such measures ‘shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required’: ICC Statute (n 18) art 63. r 125 of the ICC Rules of Procedure and Evidence (n 105) allows charges to be confirmed in the absence of the defendant, yet defendants must nonetheless be present for at least part of their trials.
160 Compare Human Rights Watch, Letter to the Secretariat of the Rules and Procedures Committee, Extraordinary Chambers of the Courts of Cambodia, 17 November 2016, https://www.hrw.org/sites/default/files/related_material/Letter%20Cambodia-HRW-ECCC%20Rules%2011.17.06_0.pdf (noting rejection of the French recommendation to allow proceedings in absentia with automatic retrial upon arrest) with UNSC, Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (3 May 1993), UN Doc S/25704, and UNSC, Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993): Corrigendum, UN Doc S/25704/Corr.1, Pt V.A, para 101 (the UN Secretary-General's Report on the establishment of the ICTY suggested that the interpretation of art 14(3) ICCPR required prohibiting the conduct of trials in absentia).
161 Statute of the International Criminal Tribunal for the former Yugoslavia, UNSC Res 827 (25 May 1993), UN Doc S/RES/827 (ICTY Statute), art 21(4)(d); Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955 (8 November 1994), UN Doc S/RES/955 (ICTR Statute), art 20(4)(d). The Statute of the Special Court for Sierra Leone (UNSC Res 1315 (14 August 2000), UN Doc S/RES/1315) includes the same provision in art 17(4)(d). Yet r 60(A) of the Special Court's Rules of Procedure and Evidence (n 86) allows for much wider exceptions; conducting full trials in absentia is in any case prohibited.
162 Gardner (n 156) 104.
163 SCSL, Prosecutor v Sesay, SCSL-04-15-T-194, Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004, [8]; see also SCSL, Prosecutor v Barayagwiza, ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, [24].
164 Gardner (n 156) 102 and the text accompanying n 65.
165 ECHR (n 2) art 5.
166 ECtHR, Ciulla v Italy, App no 11152/84, 22 February 1989, para 38; ECtHR, Al-Jedda v United Kingdom, App no 27021/08, 7 July 2011, para 100; ECtHR, Lawless v Ireland (No 3), App no 332/57, 1 July 1961, paras 13–14; ECtHR, Ireland v United Kingdom, App no 5310/71, 18 January 1978, para 196; ECtHR, Guzzardi v Italy, App no 7367/76, 6 November 1980, para 102; ECtHR, Jecius v Lithuania, App no 34578/97, 31 July 2000, paras 47–52.
167 Jecius v Lithuania, ibid para 51; Guzzardi v Italy, ibid para 102; Ciulla v Italy, ibid; ECtHR, M v Germany, App no 19359/04, 17 December 2009, para 89; ECtHR, Shimovolos v Russia, App no 30194/09, 21 June 2011, para 54.
168 Guzzardi v Italy (n 166) para 102.
169 ECtHR, Ostendorf v Germany, App no 15598/08, 7 March 2013.
170 ibid para 87.
171 The Court has rejected security detention in strong terms: Lawless v Ireland (No 3) (n 166) para 14.
172 ECHR (n 2) art 15 (‘Derogation in time of emergency’) permits derogation from the Convention under the circumstances described therein; art 15(2) lists rights which cannot be derogated from; art 5 is not listed among them, and therefore is subject to derogation.
173 ECtHR, Murray v United Kingdom, App no 18731/91, 8 February 1996, para 58.
174 UN ICCPR, General Comment No 29: States of Emergency (Article 4) – Derogations during a State of Emergency (31 August 2001), UN Doc CCPR/C/21/Rev.1/Add.11, para 4.
175 Lawless v Ireland (No 3) (n 166) para 12.
176 ibid paras 31–38 (eg, supervision by Parliament; the establishment of a Detention Commission, consisting of a military officer and two judges, which could hear complaints from detainees and, if its opinion was favourable to release, was binding on the government; the ordinary courts could compel the Detention Commission to carry out its functions; the government publicly announced that it would release any detainee who gave an undertaking to respect the law and the security act).
177 UK House of Lords, A v Secretary of State for the Home Department [2004] UKHL 56.
178 eg, despite the difficulties concerning the investigation of terrorist offences, periods of 12–14 days prior to judicial intervention were held to be irreconcilable with the notion of ‘speedy’: ECtHR, Sakik and Others v Turkey, App nos 23878/94, 23879/94 and 23880/94, 26 November 1996. In the context of derogation, the ECtHR decided that a detention period of 4 days and 6 hours breached art 5(3): ECtHR, Brogan and Others v United Kingdom, App nos 11209/84, 11234/84, 11266/84 and 11386/85, 29 November 1988. See also ECtHR, Mehmet Bilen v Turkey, App no 5337/02, 8 April 2008 (9 days were found to be a violation of art 5); ECtHR, Tanrikulu and Others v Turkey, App nos 29918/96, 29919/96 and 30169/96, 6 October 2005 (10 days were held to be a violation of art 5).
179 Cassel, Douglass, ‘Pretrial and Preventive Detention of Suspected Terrorists: Options and Constraints under International Law’ (2008) 98 The Journal of Criminal Law & Criminology 811, 837Google Scholar.
180 ECtHR, Fox, Campbell and Hartley v United Kingdom, Apps nos 12244/86, 12245/86 and 12383/86, 30 August 1990, paras 28–36.
181 Ireland v UK (n 166) para 212 (‘Many witnesses could not give evidence freely without running the greatest risks …; the competent authorities were entitled to take the view, without exceeding their margin of appreciation, that it was indispensable to arrest such witnesses so that they could be questioned in conditions of relative security and not be exposed to reprisals. Moreover and above all, Regulation 10 authorised deprivation of liberty only for a maximum of forty-eight hours’).
182 Cassel (n 179) 815. The use of security detentions is usually discussed in the context of suspected terrorists. Their detention is subject to roughly four international law frameworks: peacetime and public emergencies short of war, which are governed by IHRL norms, and armed conflicts of either an international or a non-international character, which are considered to be subject to both IHRL and IHL norms, despite some states’ arguments to the contrary: see, eg, Ben-Naftali, Orna (ed), International Humanitarian Law and International Human Rights Law: Pas de Deux (Oxford University Press 2011)Google Scholar; Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310 Google Scholar.
183 Hakimi, Monica, ‘International Standards for Detaining Terrorism Suspects: Moving beyond the Armed Conflict-Criminal Divide’ (2008) 33 Yale Journal of International Law 369, 392Google Scholar.
184 eg, the detention must be registered; must not be incommunicado for more than a few days; the detainee must be informed of the reasons for the detention and of her or his right to legal assistance: Cassel (n 179) 822–23.
185 ibid 832, 836.
186 UN HRC, Concluding Observations of the Human Rights Committee: Israel (18 August 1998), UN Doc CCPR/C/79/Add.93; UN HRC, Second Periodic Report Addendum: Israel (4 December 2001), UN Doc CCPR/C/ISR/2001/2.
187 Cassel (n 179) 834.
188 Hakimi (n 183) 392–93. See also UN Economic and Social Council, Situation of Detainees at Guantánamo Bay, Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention (27 February 2006), UN Doc E/CN.4/2006/120.
189 Hakimi (n 183) 393.
190 ibid 393–94 and the text accompanying nn 102–12.
191 Cassel (n 179) 831.
192 Oxford Pro Bono Publico, ‘Remedies and Procedures on the Right of Anyone Deprived of his or her Liberty by Arrest or Detention to Bring Proceedings before a Court: A Comparative and Analytical Review of State Practice’, University of Oxford, Faculty of Law, April 2014, http://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2014/05/2014.6-Arbitrary-Detention-Project.pdf (covering Argentina, Australia, Austria, Belgium, Canada, China, Germany, Greece, Hong Kong, India, Italy, Kenya, New Zealand, Russia, Singapore, South Africa, Sri Lanka, Switzerland, the UK, the US and Uruguay, and the jurisprudence of the ECtHR; also finding general acceptance of security detention, that detention for intelligence gathering is also practised, and further that only China, the ECtHR, and Sri Lanka require reasonable suspicion of actual involvement in a planned or completed terrorist attack of the detained person).
193 ibid para 46.
194 ibid paras 13–15 and 47–52.
195 ECtHR, O'Hara v United Kingdom, App no 37555/97, 16 October 2001, para 35; see also Fox, Campbell and Hartley v United Kingdom (n 180).
196 Cassel (n 179) 836.
197 eg, O'Hara v United Kingdom (n 195) para 35 (in the context of terrorism, though the member states cannot be required to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing confidential sources of information, the exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the safeguard secured by art 5(1)(c) is impaired); ECtHR, Labita v Italy, App no 26772/95, 6 April 2000, paras 155–61 (uncorroborated hearsay evidence of an anonymous informant was held not to be sufficient to found ‘reasonable suspicion’ of the applicant being involved in Mafia-related activities); but see ECtHR, Talat Tepe v Turkey, App no 31247/96, 21 December 2004, paras 56–63 (incriminating statements dating back to a number of years and later withdrawn by the suspects did not remove the existence of reasonable suspicion against the applicant; furthermore, it did not have an effect on the lawfulness of the arrest warrant).
198 Oren Gross and Aoláin, Fionnuala Ní, ‘From Discretion to Security: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) 23(3) Human Rights Quarterly 625 Google Scholar; Greene, Alan, ‘Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights’ (2011) 12 German Law Journal 1764 Google Scholar; Smith, Richard, ‘The Margin of Appreciation and Human Rights Protection in the “War on Terror”: Have the Rules Changed before the European Court of Human Rights?’ (2011) 8 Essex Human Rights Review 124 Google Scholar; but see National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges (European Parliament Think Tank 2014) (concluding that the member states’ margin of appreciation in cases connected with national security is no longer uniformly broad).
199 Cassel (n 179) 851.
200 Such an argument could be refuted by suggesting that the ECtHR is moving away from ad hoc judgments in the direction of consolidated principled rulings. A more theoretical response could build on the literature which argues that the ECtHR has over time developed into a constitutional court, focusing more on constitutional, rather than on individual justice: Stone Sweet (n 29); Senden (n 9) 16–20.