Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

for prison authorities to handcuff a terminally ill patient while he was receiving chemotherapy treatment at a hospital outside prison. Arden LJ pointed out that according to the jurisprudence of the Strasbourg Court, ill-treatment must meet a minimum level of severity if it is to fall within article 3 of the Convention. It was, however, clear from the jurisprudence of the Strasbourg Court that, for example, a high level of vulnerability experienced by the applicant would impose special obligations on the state.114 The Strasbourg jurisprudence on the issue had held on the one hand that the wearing of handcuffs by a prisoner when they are outside the prison and there is reason to believe that they will abscond or cause injury does not in general amount to degrading treatment,115 and on the other hand that the use of restraints such as handcuffs during medical treatment

must be justified objectively: there was a violation when the prisoner who was forced to wear handcuffs ‘was infirm as a result of his illness’.116 In a

2009 judgment, however, the Strasbourg Court had held that there was a violation when a female prisoner, who was not infirm, was subject to a gynaecological examination while handcuffed, with male security officers present. It is necessary for present purposes to look at this judgment by the Strasbourg Court in some depth. The Court in Filiz Uyan v. Turkey,117 which concerned a woman who had been sentenced to twenty-two years’ imprisonment on grounds of membership of a terrorist organisation, had said that the insistence on the use of handcuffs during an examination by a gynaecologist, and the presence of three male security officers in the examination room during consultation, even behind a folding screen, were disproportionate security measures, when there were other practical alternatives. For example, the officers could have secured the room by leaving the female prison guard there and placing one of the gendarmes outside the window of the consultation room.118

The Strasbourg Court had cited the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading

114See generally, E. Bjorge, ‘Torture and “Ticking Bomb” Scenarios’, Law Quarterly Review 127 (2011) 196–9, at 196 (hereinafter Bjorge, ‘Ticking Bomb’).

115ECtHR, Raninen v. Finland (Appl. No. 152/1996), Judgment (Chamber), 16 December 1997, Reports 1997-VIII, at paras. 55–6.

116Arden, ‘Peaceful or Problematic?’, at 9: this is Mary Arden’s summary of ECtHR, Mouisel v. France (Appl. No. 67263/01), Judgment (First Section), 14 November 2002, Reports 2002-IX, paras. 37 and 47.

117ECtHR, Filiz Uyan v. Turkey (Appl. No. 7496/03), Judgment (Second Section), 8 January 2009, not reported.

118Ibid., para. 32.

Treatment or Punishment (CPT), which cautioned against the use of handcuffs in civil hospital examinations:

If recourse is had to a civil hospital, the question of security arrangements will arise. In this respect, the CPT wishes to stress that prisoners sent to hospital to receive treatment should not be physically attached to their hospital beds or other items of furniture for custodial reasons. Other means of meeting security needs satisfactorily can and should be found; the creation of a custodial unit in such hospitals is one possible solution.119

The strict measures at issue failed, in the view of the Strasbourg Court, to allow a flexible and more practical approach to be taken; in particular, the Court found that the government had failed in the case to demonstrate that the applicant presented such an acute security risk that measures of this nature were required for a gynaecological procedure. The Court concluded that there was a violation of article 3, as the security conditions on which the Turkish government had insisted ‘must have caused the applicant humiliation and distress, beyond that inevitably associated with the treatment of a prisoner, which was capable of undermining her personal dignity’.120

Arden LJ in Faizovas121 noted that: ‘[t]he Convention is interpreted as a living instrument and it would thus not be surprising if the standards set in earlier cases had been increased in a later decision’, bearing testimony to the fact that UK courts are, on a conceptual level, on board with the doctrine of evolutive interpretation of Convention rights.

The claimant in Faizovas had suffered from pancreatic cancer which had spread to other organs, for which he was undergoing chemotherapy. During his course of chemotherapy, in the period March 2007–February 2008, he was ‘handcuffed by standard handcuffs (one on his arm and one on the arms of a prison officer) and attended by two prison officers’. The standard handcuffs on arrival were replaced by an escort chain of two-and-a-half metres linking him and a prison officer. He received treatment, which took about thirty minutes, while remaining handcuffed, generally on an escort chain. The applicant, on his own admission, had felt shorn of his dignity during treatment. As a result of the infirmities

119 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), ‘The CPT Standards: “Substantive” Sections of the CPT’s General Reports’ (CPT/Inf/E (2002) 1 – Rev. 2006), at 31 and 34. See Filiz Uyan,

para. 21.

120 Ibid., at paras. 34–5.

caused by his cancer, he died on 21 May 2008.122 The risk of harm to the public and of escape had been reduced to low from 11 December 2007 for all but one hospital visit.

As foreshadowed above, much play was made by counsel for the claimant of the Strasbourg Court judgment in Filiz Uyan. Counsel had argued that the more stressful the treatment, the greater the need for justification for insisting on handcuffs; there had been no contraindication – the medical term for a circumstance indicating that a particular technique or drug ought not to be used in the case in question – in Filiz Uyan, but the effect of handcuffing had been to undermine dignity. Arden LJ was not swayed by this line of argument:

the Strasbourg court found that [Filiz Uyan] must have suffered humiliation and distress beyond that inevitably associated with being a prisoner. At first sight, it is surprising that the Strasbourg court was willing to assume this without proof. But this was a matter that could be inferred from the fact that the prisoner refused treatment under the conditions under which it was offered. … In my judgment, the humiliation or distress did not necessarily mean that there had been a violation. Humiliation and distress, however, were an indication that the treatment was degrading. The absence of justification for the security measures in question, having regard to the security risk posed by the prisoner, the particular type of treatment she had to undergo and the possibility of more suitable means of security led to the finding of a violation.123

The Court of Appeal distinguished the case, as Filiz Uyan was found to turn on its own particular facts.124 Though this particular part of the reasoning of the Court of Appeal in Faizovas may be unobjectionable – as what judges do is to adjudicate in cases which turn on their own particular facts – it may also serve as an example of how, in the particular instances of a case, national judges put a stop on characteristic features of the ECHR schema with which they, on a conceptual level, do not have any quarrel. For example, the Strasbourg Court in Paradysz v. France,125 handed down after Filiz Uyan, drew other conclusions from its own article 3 line of authority, including Filiz Uyan.

The Strasbourg Court in Paradysz pointed out that in considering whether article 3 was triggered, one would have to have regard to

124Ibid., para. 35; Arden, ‘Peaceful or Problematic?’, at 9.

125ECtHR, Paradysz v. France (Appl. No. 17020/05), Judgment (Fifth Section), 29 October 2009, not reported (available in French only).

‘l’ensemble des données de la cause, notamment de la durée du traite-

ment et de ses effets physiques et mentaux, ainsi que, parfois, du sexe, de l’âge et de l’état de santé de la victime’.126 Only in cases where the

wearing of handcuffs was part of lawful detention and did not involve more force or public exposure – ‘exposition publique’ – than could reasonably be deemed necessary would it be compatible with the exigencies of article 3, said the Court.127 The Court further pointed out that the applicant complained of the use of shackles only during transport to the hospital and not during medical consultations, and that it was the use of such constraints during medical consultations which remained the main preoccupation of the Court with regard to article 3. The Court did not exclude that the wearing of shackles during transport to the hospital, especially in view of the health of the prisoner, could be in breach of article 3.128 It did not, however, find that there had been a breach in the present case, and for the following reasons. First, the wearing of the shackles had not affected the applicant physically. Second, his infirmities were not so grave as to gainsay the use of the shackles. Third, considering the penalty he had served, his criminal and violent record, the Court held that the decision to make him wear shackles – limited to three journeys to the hospital – was proportionate with regard to the obtaining exigencies of security.129

If one compares the facts and the lines of argument of the two courts in Paradysz and Faizovas, a picture emerges in which it is not wholly clear that the Court of Appeal in Faizovas was right to temper the impact of the ECHR by way of distinguishing the case from the apposite Strasbourg authorities. If one were to take the line of argument of the Strasbourg Court in Paradysz as a yardstick for how it might have decided Faizovas, the case seems to take on a different complexion. It seems clear, for example, that the level of infirmity of the claimant in Faizovas was higher than in Paradysz (the fact that the applicant in Faizovas died of his cancer shortly after his treatment seems to be a fairly good indication of that); the number of visits in which the applicant was subjected to the measure at issue was eighteen in Faizovas as opposed to three in Paradysz; and the applicant in Faizovas had been deemed to have only a ‘low’ risk of harm to the public and of escape from 11 December 2007 for all but one hospital visit.

The question was not so much one of whether the wearing of handcuffs on all eighteen visits, en bloc, represented an interference with the claimant’s article 3 rights; it would have been enough for there to have been a breach at one of them. In light of this, and the reasons set out above, it is not altogether clear that the Court of Appeal struck the right balance. Though it was not minded to conclude in this way, the better view would be that there had, in fact, been an interference with article 3 during at least some of the last hospital visits.

Some of the same mechanisms, national limitations or locks on ECHR law,130 are in play in R. v. Horncastle.131 The question with which the Supreme Court was faced in Horncastle was whether a conviction based ‘solely or to a decisive extent’ on the statement of a witness whom the defendant has had no chance of cross-examining necessarily infringes on the defendant’s right to a fair trial under article 6(1) and (3)(d) of the Convention. Article 6(1) provides that:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

Article 6(3)(d) says that everyone charged with a criminal offence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

The most recent Strasbourg authority on the issue was Al-Khawaja and Tahery v. United Kingdom.132 In the two applications jointly adjudged in this Chamber decision, statements had been admitted in evidence at a criminal trial of a witness who was not called to give evidence. The Strasbourg Court had held that, in both cases, the statement was the ‘sole or, at least, the decisive basis’ for the applicant’s conviction. The Court in Al-Khawaja took as one starting point the statement in Lucà v. Italy,133 that:

130See on the ‘lock’ terminology, P. Craig, ‘The European Union Act 2011: Locks, Limits and Legality’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford University Press, 2012).

131R. v. Horncastle and Others [2009] UKSC 14; [2010] 2 WLR 47 (hereinafter Horncastle)

132ECtHR, Al-Khawaja and Tahery v. United Kingdom (Appl. Nos. 26766/05 and 22228/ 06), Judgment (Grand Chamber), 15 December 2011, Reports 2011.

133ECtHR, Lucà v. Italy (Appl. No. 33354/96), Judgment (First Section), 27 February 2001, Reports 2001-II.

where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6.134

Neither the Court of Appeal nor the Supreme Court accepted in Horncastle that the Strasbourg Court’s decision in Al-Khawaja should be determinative of the results of the appeals in the case before them. Both courts held that, in the circumstances of each of the appeals, the claimants had received a fair trial.135 As, on 16 April 2009, the UK had requested, under article 43(1) of the Convention, that the Chamber decision in Al-Khawaja be referred to the Grand Chamber, and the Supreme Court at that time was about to begin to hear Horncastle, a Panel of the Grand Chamber on 5 June 2009 adjourned consideration of the request pending the Supreme Court’s judgment in Horncastle. This gave the Supreme Court a chance to have its say on the issue.

The claimants had submitted that the Supreme Court must treat Al-Khawaja as determinative of the success of their appeals. This, they argued, would be the appropriate response to the requirement of section 2(1) of the Human Rights Act 1998 (HRA), which requires a court to ‘take into account’ any judgment of the Strasbourg Court in determining any question to which such a judgment is relevant. It was submitted in this regard that the decision of the House of Lords in

Secretary of State for the Home Department v. AF (No. 3)136 exemplified the correct approach to a decision of the Strasbourg Court. In that case their Lordships had held themselves bound to apply a clear statement of principle by the Grand Chamber in respect of the precise issue with which the House was faced.

That submission a unanimous Supreme Court in Horncastle could ‘not accept’:137

The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg

134 Ibid., para. 40. 135 Horncastle [2009] EWCA Crim 964; [2009] WLR 173.

136Secretary of State for the Home Department v. AF (No. 3) [2009] UKHL; [2009] 3 WLR 74. See generally, P. Craig, ‘Perspectives on Process: Common Law, Statutory and Political’, Public Law (2010) 275–96.

137Horncastle, para. 11.

Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court.138

It should perhaps be added that the Strasbourg decision at issue was one against the UK, so the Strasbourg judges – who, as always with cases against the UK, included the British judge, Sir Nicholas Bratza – would perforce have been seised of such salient features of the common law scheme in question as the government presented in court.

Though this non-acceptance was a surprising move by the Supreme Court, it is not the first time one has seen signs of British judges taking issue with Strasbourg jurisprudence.139 The issue of courts martial in the UK furnishes an apposite example. The Strasbourg Court in Findlay v. United Kingdom140 had held that the UK was in violation of article 6(1) of the Convention, as a soldier successfully challenged the court martial procedure on grounds of lack of independence and impartiality. The UK court martial procedure was reformed by new legislation in 1996. In 2002, in Morris v. United Kingdom,141 the Strasbourg Court held that the new legislation also fell foul of the Convention rights. However, as another case, R v. Spear and Others142 reached the House of Lords in 2002, before new legislation had been introduced in response to the Strasbourg Court’s adverse decision in Morris, Lord Bingham in R v. Spear and Others found that, though it was for UK courts to accept the decisions of the Strasbourg Court, the legislation in issue satisfied the requirements of independence and impartiality. In the wake of R v. Spear and Others, a unanimous Grand Chamber of the Strasbourg Court in Cooper v. United Kingdom143 overturned their previous ruling in Morris, drawing on Lord Bingham’s analysis in R v. Spear and Others and giving its imprimatur to his conclusions.144

26 February 2002, Reports 2002-I.

142R v. Spear and Others [2002] UKHL 31; [2003] 1 AC.

143ECtHR, Cooper v. United Kingdom (Appl. No. 48843/99), Judgment (Grand Chamber), 16 December 2003, Reports 2003-XII.

144Andenas et al., ‘A World Elsewhere’, at 831–66.

As adumbrated above, however, Lord Bingham in R v. Spear and Others crucially did not say that the House of Lords could choose not to follow the decisions of the Strasbourg Court. Rather, he clarified that they were, in point of fact, following it. Horncastle is different, in that it says not only that English law is in reality conforming with the precepts of article 6 of the Convention; it also says that if this is not the case, there is effectively no need for the Supreme Court to follow the Strasbourg jurisprudence. The idea of a ‘dialogue’ between judges145 was accepted with alacrity by the Supreme Court in Horncastle. To the dialogue the Supreme Court submitted nine conclusions, of which the Supreme Court ‘hope[d] that in due course the Strasbourg Court may also take account’.146

There are, the Supreme Court put forth as perhaps the most salient of its conclusions, safeguards designed to protect a defendant against unfair prejudice as a result of the admission of hearsay evidence, seen in the context of the more general safeguards which apply to every jury trial. These include the concept that the trial judge acts as a gatekeeper and has a duty to prevent the jury from receiving evidence which will have such an adverse effect on the fairness of the proceedings that it ought not to be received, and hearsay evidence is admissible only in strictly defined circumstances, in which the judge is satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness.147

It bears mention, however, that in R v. Davis,148 the House of Lords as recently as 2008 had held unanimously that it was a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.149 For this Lord Bingham cited common law authorities going back to Duke of Dorset v. Girdler from 1720, which held that:

The other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth.150

145See, e.g., Sudre, ‘Dialogue des Juges’, at 1028; A. Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication (Oxford University Press,

150Duke of Dorset v. Girdler (1720) Prec. Ch. 531–32, 24 ER 238. Lord Bingham also cited Sir Matthew Hale, The History of the Common Law of England, 6th edn (1820), at 345–6; W. Blackstone, Commentaries on the Law of England Bk. III, 12th edn (1794), at 373;

Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.157

One gets the feeling reading Horncastle that the Supreme Court views its relationship with the Strasbourg Court as a bilateral one, when, in fact, the Supreme Court represents one of nearly fifty member states. If the other courts of Europe were to take a leaf out of the Supreme Court’s book, the result could be a very chaotic situation indeed. It would furthermore hardly be in tune with ideas of ‘bringing rights home’, as claimants would have to go to Strasbourg to achieve their Convention rights. It bears mention that there is obiter support of the Horncastle approach in the newly decided Pinnock,158 though in the event, the Supreme Court followed the Strasbourg Court, overturning much of its own case law on the use of the proportionality test in demoted tenancy possession cases.159

The President of the European Court in an article published on the eve of the Grand Chamber’s decision in Al-Khawaja, had the following to say about Horncastle:

I believe that it is right and healthy that national courts should continue to feel free to criticise Strasbourg judgments where those judgments have applied principles which are unclear or inconsistent or where they have misunderstood national law or practices. But I also believe that it is important that the superior national courts should, as Lord Phillips put it in the Horncastle judgment, on the rare occasions when they have concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of the domestic process, ‘decline to follow the Strasbourg decision, giving reasons for adopting this course.’ If, as has happened in the case of Al-Khawaja, Strasbourg is given the opportunity to reconsider the decision in issue, what takes place may indeed as Lord Phillips put it, ‘prove to be a valuable dialogue between this court and the Strasbourg Court.’ I firmly believe that such dialogue can only serve to cement a relationship between the two courts which, whatever criticisms may be levelled against the Strasbourg Court, is a sound and solid one.160

157Ibid., para. 108.

158Manchester City Council (Respondent) v. Pinnock (Appellant) [2010] UKSC 45.

159Lord Bingham had persistently argued for this line, and in Pinnock his views finally prevailed. See the background story in Lord Bingham, Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law (Cambridge University Press, 2010), at 80–3.

160N. Bratza, ‘The Relationship Between the UK Courts and Strasbourg’, European Human Rights Law Review 5 (2011) 505–12, at 512.