1. Introduction
The use of proportionality and balancing by the European Court of Human Rights (ECtHR or the Court) is inconsistent and fails to provide clear guidelines for the drafting of policies that strike a fair balance between individual rights and public interests, while not impairing the essence of the rights at stake. This unstructured balancing process does not create a body of jurisprudence that can be analysed to determine when infringements of rights are not justified in the face of competing interests. While ad hoc and unprincipled balancing may be justified on the theoretical level,Footnote 1 on the practical level a policymaker seeking to understand which types of infringement constitute clear violations of the European Convention on Human Rights (ECHR or the Convention)Footnote 2 is left puzzled.
This article will clarify this confusion by breaking down several aspects of the right to a fair trial under the ECHR into clear-cut ‘red lines’, or minimum thresholds of protection, which, when overstepped, constitute a clear violation of the right. The article also addresses the jurisprudence of the Court on justification for violations of those rights. ‘Fair trial’ is used here in the broad sense, covering rights that are dealt with under both Articles 5 and 6 of the ECHR. Identifying these red lines is intended to assist legislators and policymakers in drafting laws and policies that conform with their states’ obligations under the ECHR, and also to instruct policymakers outside the Council of Europe member states.
Accordingly, the article first reviews the ECHR and its Court, including its broad scope of influence and assessing it in comparison with the jurisprudence of other international courts, followed by an examination of the Court's use of balancing and proportionality. The article then delves into five aspects of the right to a fair trial, breaking them down into the clearest possible red lines, and compares the Court's stand on these issues with that of other international tribunals and supranational institutions. Within this framework, the following five issues are discussed: (i) the admission of evidence obtained through torture or other forms of ill-treatment; (ii) the use of anonymous witnesses in trial proceedings; (iii) limitations on disclosure of information basing allegations against detainees; (iv) trials in the absence of the defendant; and (v) the legality of preventive detention for security purposes and intelligence gathering. The article concludes with a discussion of the case law of the ECtHR within the context of international law and compares the Court's position with that of other international bodies.
2. ECtHR Jurisprudence beyond the Borders of the Council of Europe
The judgments of the ECtHR can serve as instructive sources for policymaking beyond the borders of the Council of Europe, even though states which are not subject to the Court's jurisdiction are not compelled to follow its jurisprudence. The ECtHR must tread a fine line between universalism and respect for the sovereignty of member states;Footnote 3 this results in judgments that are sensitive to the need for states to pursue policies, but at times are at the expense of upholding rights. The considerations the Court weighs mirror the kind of deliberative process in which policymakers engage in seeking to reconcile collective goals with the protection of individual rights. This is true also for domestic courts that deal with administrative or constitutional complaints. However, the ECtHR is especially reluctant to define bright-line rules or to draw clear red lines which can be extended in a principled manner beyond ad hoc rulings. Without bright-line rules and in the absence of categorical reasoning, minimum thresholds must be identified as the minimum essence which must be protected under any circumstances.
As for institutional aspects, the ECHR is ‘widely regarded as the most effective transnational judicial process for complaints brought by individuals and organizations against their own governments’.Footnote 4 This is partly as a result of the enforcement mechanisms incorporated in the Convention to ensure that the Court's judgments are implemented.Footnote 5 These procedural mechanisms contribute to embedding the Court's rulings within the law of the member states and, in turn, allow the Court to exert influence on the shaping of fundamental rights on the multinational level, as well as on domestic policymaking.Footnote 6 Yet, despite it being a regional court, the judgments of the ECtHR have been invoked by other international human rights bodies and by constitutional courts of states not parties to the ECHR.Footnote 7
It is further noteworthy that although the ECtHR has jurisdiction to scrutinise human rights violations only when these are carried out by member states of the Council of Europe, citizenship of a member state is not a prerequisite for filing a complaint with the Court. Any individual in the world who claims to have had a protected right under the ECHR violated by a member state can turn to the ECtHR. In this sense, the Court has a cosmopolitan quality, opening its door on an individual basis, regardless of citizenship affiliation.
This ‘cosmopolitan quality’ can also be extrapolated from the nature of the Convention itself. The Court has interpreted the Convention as a lawmaking treaty.Footnote 8 In contrast to a contractual treaty that is designed to create reciprocal obligations binding exclusively the parties to the treaty, a lawmaking treaty is designed with a wider common aim: the protection of fundamental rights of individuals.Footnote 9 Accordingly, a ruling of a violation of the Convention is a mixture of two kinds of claim in respect of: (i) the nature of member states’ obligations, and (ii) the moral rights to which individuals are entitled by virtue of being human.Footnote 10 The breadth of the Court's rulings can assist policymakers in states that are not signatories to the ECHR yet share the values on which the Convention rests.Footnote 11
Concluded in the aftermath of the Second World War, the ECHR was modelled closely on the provisions of the United Nations (UN) Universal Declaration of Human RightsFootnote 12 and was intended to be ‘the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.Footnote 13 Together with particular treaties, declarations and resolutions concluded by the UN and many other international forums, the jurisprudence of the ECtHR and other human rights courts form the body of international human rights law (IHRL), some of which can be considered part of customary international law.Footnote 14 Considering their shared goal to protect fundamental rights, the question of what exactly is entailed in these rights, or which concrete red lines can be deduced from abstract rights, is certainly worth discussing within broader international jurisprudence.Footnote 15 This is also evident in the cross-referencing that these courts make to the jurisprudence of their fellow courts and to international human rights instruments.Footnote 16
As for a specific comparison of the jurisprudence of the ECtHR with the statutes and jurisprudence of international criminal tribunals, considering the unique objectives and practices of international criminal law (ICL)Footnote 17 it may be argued that there is no room for such a comparison or the bundling of the jurisprudence of the tribunals with that of a human rights court. This can be countered by the following arguments. First, ICL is not a monolithic legal regime. Notwithstanding institutional and structural resemblances, the nature of the relationship between the various tribunals is far from undisputed.Footnote 18 Second, in terms of the content of its norms, ICL is a composition of domestic criminal law (from which ICL imports its fundamental legal principles) and of IHRL and international humanitarian law (IHL) (from which definitions of crimes and parameters for the assessment of offences committed during armed conflict are drawn).Footnote 19 The immediate connection between ICL and IHRL was explicitly established in the drafting of the Statute and the Rules of the International Criminal Tribunal for the former Yugoslavia (ICTY), during the course of which ‘every attempt was made to comply with internationally recognized standards of fundamental human rights’.Footnote 20 Article 21 (rights of the accused), which is of particular relevance to the matters discussed here, was drafted explicitly in light of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).Footnote 21 Moreover, Article 21(3) of the ICC Statute states that the ICC has to interpret its internal legal framework in such a way as to abide by ‘internationally recognized human rights’ law.Footnote 22 Third, while recognising the need to interpret the statute's provisions in light of the objectives of the international tribunal, the ICTY has stated that decisions on the provisions of the ICCPR and the ECHR have been found to be authoritative and applicable.Footnote 23 Fourth, some of the issues discussed here concern rules of evidence, which belong to procedural law. The attempt to weave a patchwork that integrates continental and common law traditions in ICL has received its share of critique.Footnote 24 Without dwelling on this issue, it can be concluded that ICL has succeeded in developing a system of procedural law – a system grounded in international human rights law and the basic norm of the right to a fair trial.Footnote 25 Thus, the influence of IHRL is also apparent in procedural ICL. In particular, the ICC has significantly deferred to the case law of the ECtHR in determining the scope of the rights of the defence and their limitations, regarding them as carrying ‘persuasive authority’.Footnote 26 In conclusion, notwithstanding the respective particularities of ICL and IHRL, the influence of the latter on ICL is undeniable and, accordingly, cross-fertilisation and comparison should be welcomed.Footnote 27
2.1. Unsystematic Balancing in the Jurisprudence of the ECtHR
Balancing is central to the reasoning process of the ECtHR, yet it is considered by many to be in tension with the Court's chief aim of protecting fundamental rights.Footnote 28 Balancing in the jurisprudence of the ECtHR is essentially synonymous with proportionality assessment, the adjudication method used by the Court in the vast majority of its cases.Footnote 29 Far from the textbook structured proportionality review,Footnote 30 proportionality as adopted by the ECtHR is a flexible, open-ended balancing test in which competing claims of individual rights and collective goals are weighed against each other on a case-by-case basis.Footnote 31
The conversion of proportionality analysis to an all-inclusive balancing exercise has been a source of criticism. While some critics take aim at the Court's unique approach to proportionality, others make a more general attack on balancing and its erosion of the normative priority of rights over collective interests.Footnote 32 This critique is targeted against balancing in general. Yet it seems particularly relevant to the ECtHR as its balancing process resembles what Möller has described as ‘balancing as reasoning’Footnote 33 – namely, the bringing together of all relevant considerations with no fixed hierarchy or blueprint as to how the various interests are to be weighed. Moreover, it implies that, as a matter of principle, public interests can always be weighed against rights. This may result in loss of the rights’ special normative force.
Within a vertically structured proportionality analysis, rights clearly prevail over the public interest when the latter can be attained with the use of a less restrictive measure.Footnote 34 However, this rule in practice is inapplicable to the ECtHR, not only because of the Court's horizontal application of proportionality analysis, but also because of its inconsistent use of the less restrictive means test.Footnote 35 Analysing the Court's use of this test, Brems and Lavrysen have concluded that it is difficult to systematise the Court's use of the test, and that among those cases in which the Court does apply the test it does not consider itself under an obligation to do so.Footnote 36 Brems and Lavrysen, furthermore, have found that the test has occasionally been applied in a ‘reverse’ manner – to evaluate the chosen measure in comparison with more (as opposed to less) restrictive means,Footnote 37 thus running counter to the objective of the test.
The resort to an all-inclusive balancing test also carries controversial side effects that impact on the review stages preceding the proportionality assessment. The first of these concerns the definitional stage at which the scope of the right should be made explicit. According to Tsakyrakis, ‘definitional generosity’ is a basic methodological principle of the balancing approach.Footnote 38 The widening of the scope of rights at the definitional stage further perplexes those who seek to draw clear elements of ‘do and do not’ from the Court's case law, in that the finding of a prima facie interference merely triggers an assessment of whether the infringement is justified and does not serve to carve out a scope of the right which is void of any interference. Thus the recognition of the complaint as falling within the scope of a right does not elevate the normative force of the rights-holder's claim, or give the holder any position of priority over competing policy considerations.Footnote 39
Gerards and Senden pose an even harsher critique, arguing that the ECtHR often completely skips the definitional stage or pays lip service to it by accepting that the case falls within a Convention right without providing an explanation.Footnote 40 When the Court does address the definition of the right, it often merges this analysis with the assessment of the justification for its limitation,Footnote 41 thus avoiding the need to draw the scope of the right independently of competing policy considerations. The ECtHR, in the words of Gerards and Senden, can ‘hide behind the specific circumstances of the case and avoid having to make structural decisions on the scope of a Convention right’.Footnote 42 Furthermore, the entanglement of definition and justification creates uncertainty concerning the allocation of the burden of proof, as the definition of the right falls to the group asserting its infringement and the justification for its limitation falls to the state.Footnote 43 This is usually to the detriment of the applicant, as the interests raised by the respondent government are taken into consideration in the initial stage of defining the scope of the right and the reason for interfering with it.
The second notable side effect concerns the ‘legitimate aim’ stage, in which illegitimate policy aims should be filtered out. Arai notes that very rarely has the Court determined a violation of ECHR rights on the basis of the legitimate aim standard because such an assessment is usually carried out with the proportionality assessment.Footnote 44 Šušnjar argues that the aim is usually upheld swiftly without extensive evaluation. At times, the legitimacy of the aim is assumed, explicitly or implicitly.Footnote 45 Similarly, Gerard holds that the ECtHR tends to accept aims that are framed in general and abstract terms and do not require further specification.Footnote 46 Gerard notes that although mentioned in each case, the Court has rarely found an aim to be illegitimate and has refrained from developing sub-requirements to help to elucidate the requirements entailed in the different prescribed aims.Footnote 47
Sadurski has also affirmed the Court's very lax evaluation of the legitimate aim requirement.Footnote 48 He holds that even in the rare instances in which the Court expresses mild doubts concerning the aim, it brackets or disregards these doubts and proceeds to assess the proportionality of the application of the challenged measure/law.Footnote 49 The result of this process is that the illegitimacy of the aim is integrated into the proportionality assessment and is not the outcome of independent scrutiny.Footnote 50 In this context, refraining from stating clearly which aims could never justify an interference with a right indirectly relaxes the definition of the right. The failure to articulate unjustified aims elevates collective goals, regardless of their incompatibility with what we value as essential to a given right.Footnote 51
2.1.1. The ‘Very Essence of the Right’: A Deontological Constraint on Balancing?
Despite the dominance of the balancing method in the jurisprudence of the ECtHR, not all aspects of the rights are ‘up for grabs’.Footnote 52 The Court's jurisprudence is scattered with references to the ‘essence’ or ‘core’ of the right. This, at least in theory, suggests some kind of a deontological constraint within the balancing method. According to Tsakyrakis, ‘[o]nce we have accepted that this core content cannot be compromised under any circumstances we have left behind the idea that the right at stake can be weighed against competing public interests’.Footnote 53 This accords with the conclusion by Kumm and Walen that not only does balancing not exclude deontological constraints, but it actually requires the inclusion of such considerations.Footnote 54 A balancing exercise, they hold, should extend beyond interest-based balancing and attribute more normative force to the right-holder's claim in contexts in which respect for human dignity is concerned.Footnote 55 Such circumstances do not automatically elevate the right to an absolute status, but require ascribing it more weight than a neutral interest balancing would suggest.Footnote 56
However, the ECtHR does not define ‘essence’ with precision. Arai-Takahashi places the ‘very essence’ requirement close to that of the ‘practical and effective’, meaning that the guarantee of the right must not be of an illusory or theoretical nature.Footnote 57 Gerards argues that the closer an aspect of a right is to the general objectives of the ECHR (defined as the maintenance and promotion of a democratic society and the protection of human dignity and personal autonomy), the greater the likelihood that the Court will submit the infringement to stricter scrutiny and narrow the margin of appreciation afforded to the respondent government accordingly.Footnote 58
Indeed, the notion of essence is intertwined in the Court's jurisprudence with the concept of ‘human dignity’, the latter supposedly placing deontological constraints on the balancing process. Nevertheless, Christoffersen concludes that a finding of lack of respect for human dignity does not necessarily lead to a finding of a violation because of the Court's adoption of a relative theory of essence of rights. Thus, what can be ruled as constituting a violation of the essence of the right in one context can be ruled valid in a different context. This contextualism means that there is no nucleus to a right that cannot be violated.Footnote 59 In practice, the delimitation of the essence is entangled in the Court's proportionality analysis and delimited on the basis of a fair balancing test.Footnote 60
Arai has observed that the Court's approach has undergone ‘a notable shift from the restrained approach in the earlier decisions to a more assertive tendency, in the recent cases, to scrutinise the “very essence” requirements with rigour’.Footnote 61 Yet Arai's analysis of the case law supports Christoffersen's conclusion that the application of the notion of the ‘very essence' still remains insufficiently articulated.Footnote 62 In the context of the rights relating to a fair trial, Goss holds that the ECtHR has displayed a tendency to refer to the standards of proportionality and ‘very essence’ practically interchangeably,Footnote 63 so there is hardly any significant distinction between what constitutes a disproportionate infringement and what constitutes an impairment of the very essence of the right. In conclusion, the use of the ‘very essence’ standard does not cure the ambiguity of balancing and proportionality analysis in the Court's case law. Without a clear standard of what constitutes the essence of a right, it is without a doubt difficult to find a set of ‘red lines’ to determine an unequivocal violation, yet this difficulty also amplifies the need to attempt to do so.
The lack of a clear standard creates a situation where the ability to distil guidelines from its jurisprudence is made all the more difficult. Because the ECtHR does not implement proportionality in a principled and systematic manner, it is difficult to understand what would constitute clear violations, and conversely interferences which are proportionate. Indeed, one could argue that the Court has reasons for its unsystematic use of proportionality. Nonetheless, this praxis still has its downsides – among others, the difficulty in drawing wider policy considerations. Keeping in mind the Court's rhetoric on how it would like to rule – with proportionality and balance – a deeper analysis of how the Court actually rules can be explored. In doing so, the inchoate jurisprudence on proportionality and balance will be ever more clear.
3. Red Lines in the Jurisprudence of the ECtHR
3.1. The Prohibition of the Admission of Evidence Obtained Contrary to Article 3
Article 3 of the ECHR prohibits torture and inhuman treatment. However, use of evidence derived from such measures is not explicitly prohibited. Instead, the ECtHR has derived this prohibition from the right to a fair trial in Article 6. The Court has repeatedly stated that the use of evidence obtained through torture amounts to a ‘flagrant denial of justice’ and is therefore in violation of the right to a fair trial, irrespective of its probative value.Footnote 64
Over the years the ECtHR has developed a set of principles on the admissibility of evidence obtained in breach of the prohibition of torture and inhuman or degrading treatment: (i) confessions, whether obtained through torture or inhuman treatment, can never be used as evidence in a trial;Footnote 65 (ii) real evidence obtained as a result of torture is similarly to be excluded; (iii) real evidence obtained as a result of inhuman treatment will be excluded if the evidence obtained in violation of Article 3 had an impact on the conviction or sentence; (iv) these principles apply also when the victim of the ill-treatment was not the applicant himself, but a third person (such as a witness);Footnote 66 (v) these principles apply to all the states involved in the acts in breach of Article 3, irrespective of the fact that the said acts were carried out in a third state by its officials; (vi) the burden of proof imposed on an applicant claiming that disputed evidence had been obtained contrary to Article 3 need not go beyond the demonstration of a ‘real risk’ that evidence obtained by torture would be used in the trial;Footnote 67 and (vii) these rules apply to both criminal and administrative proceedings.
The ECtHR is less decisive in respect of real evidence obtained through inhuman or degrading treatment that falls short of torture. The admission of real evidence obtained under such circumstances does not automatically render the trial unfair, but it will be excluded in circumstances in which the evidence affected the outcome. In Jalloh v Germany Footnote 68 the Court addressed whether the forcible administration of emetics to the applicant to obtain evidence of a drug offence was in violation of Article 3 and whether the subsequent use of the evidence at the applicant's trial breached his right to a fair trial. Ruling in favour of the applicant, the Court held that the evidence collection was inhuman and degrading treatment in violation of Article 3. It also found a violation of Article 6 arising from, inter alia, the fact that the evidence collected was the decisive element in securing the applicant's conviction.Footnote 69
The distinction between torture and other forms of ill-treatment was upheld in Gäfgen v Germany. Footnote 70 In that case the Court held that, as a rule, the effective protection of individuals from the use of investigative methods in breach of Article 3 may require the exclusion from use at trial of real evidence obtained contrary to its requirements. However, the fairness of a criminal trial was at stake only if the evidence obtained in breach of Article 3 had an impact on the defendant's conviction or sentence.Footnote 71 The majority ruled against the applicant on the ground that he had repeated his statement voluntarily in the course of his trial. Consequently, the failure of the domestic courts to exclude the disputed evidence was found to have no bearing on the applicant's conviction and sentence.
3.1.1. ECtHR Jurisprudence Situated within International Law
Discussions concerning the prohibition of evidence obtained by torture commonly begin with Article 15 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentFootnote 72 (CAT), which reads as follows:
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
The provision applies to ‘any proceedings’ – criminal, civil, administrative, extradition – regardless of whether the torture was carried out in a third countryFootnote 73 or if the evidence is used in proceedings against a person other than the victim of torture.Footnote 74 It applies exclusively to statements (not to real evidence) and to torture (not to inhuman or degrading treatment), contrary to a number of proposed drafts which included these expansions. According to the commentary to the CAT, the preventive purpose of Article 15 supports such broader application to statements made as a result of cruel, inhuman or degrading treatment.Footnote 75
Thienel argues that Article 15 CAT has achieved customary status.Footnote 76 As of March 2017, 161 states were parties to the CAT,Footnote 77 with no state party having made a reservation to Article 15. In contrast to many human rights provisions, state parties may not derogate from Article 15 in times of war or public emergency; nor is the application of the article made subject to considerations of national security or public order. Thienel further argues that general international law may lead to the inadmissibility of evidence obtained by torture in two separate ways.Footnote 78 First, the special status of the prohibition of torture as a rule of international jus cogens may impose on states an obligation to refuse to accept any results arising from its violation by another state. Second, he observes that state practice and opinio juris may have already given rise to an independent rule on the inadmissibility of such evidence.Footnote 79
UN bodies have persistently sought to expand the scope of the exclusionary rule through the General Assembly's Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.Footnote 80 Principle 16 requires prosecutors to refuse to use as evidence any statement obtained ‘by torture or other ill treatment except in proceedings against those who are accused of using such means’.Footnote 81 With the establishment of the ICTY, its judges adopted a rule that rendered inadmissible evidence that was ‘obtained directly or indirectly by means which constitute a serious violation of internationally protected human rights’Footnote 82 – a phrase broad enough to apply to both torture and cruel, inhuman or degrading treatment. Amended in 1995, it now reads: ‘No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings’.Footnote 83 According to the Tribunal's Second Annual Report, ‘[t]he amendment to Rule 95 … puts parties on notice that although a Trial Chamber is not bound by national rules of evidence, it will refuse to admit evidence – no matter how probative – if it was obtained by improper means’.Footnote 84 Similar provisions were included in the rules of the Rwanda Tribunal (ICTR),Footnote 85 the Special Court for Sierra Leone (SCSL),Footnote 86 and the International Criminal Court (ICC).Footnote 87 These provisions signal a trend towards widening the scope of the prohibition beyond mere statements made under torture.Footnote 88
The UN Human Rights Committee (HRC) has further statedFootnote 89 that ‘it is important for the discouragement of violations under Article 7 [of the ICCPR] … that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment’. This has been referred to in terms of developing a ‘tainted fruits of the poisonous tree’ doctrine, applying it to all forms of ill-treatment.Footnote 90 In its guidelines on the admissibility of evidence obtained by torture or other prohibited treatment, the UN Working Group on Arbitrary Detention included a broader provision than Article 15 CAT, covering other forms of cruel, inhuman or degrading treatment.Footnote 91
Returning to the jurisprudence of the ECtHR, its red line prohibiting the use of statements obtained through torture corresponds with Article 15 of the CAT, and its extension of the prohibition on statements obtained by other forms of inhuman or degrading treatment accords with the position of the UN bodies and the international criminal tribunals. As to the inclusion of all forms of evidence obtained through torture (that is, real evidence), this also accords with the international criminal tribunals, but it is the point where the tribunals, together with the ECtHR, diverge from the HRC, the latter confining the ‘tainted fruits of the poisonous tree’ doctrine flowing from Article 7 of the ICCPR to statements and confessions. This additional step taken by the ECtHR can be attributed to its willingness to expand the obligations of member states under the ECHR through purposive and dynamic interpretation.
The reluctance of the ECtHR to draw a clear red line on the status of real evidence obtained through means which fall short of torture also seems in tune with the provisions of the international criminal tribunals which grant broad discretion to judges to determine the scope of the vague notions of ‘substantial doubt’ regarding the reliability of the evidence, or whether its admission is ‘antithetical to’ and would ‘seriously damage’ the integrity of the proceedings. However, the Court's rule of excluding real evidence when shown that its inclusion has had an impact on the conviction could be interpreted as a lower threshold. In this sense, the ECtHR seems to display a willingness also to push its boundaries of exclusion. That said, in Jalloh the ‘impact’ requirement was equated with the decisiveness of the real evidence in securing the applicant's ultimate conviction (setting a relatively high threshold) and in Gäfgen the applicant's repetition of his confession in open court cancelled out such ‘impact’. Both of these rulings stirred controversy among the Strasbourg judges.Footnote 92 Subsequent developments in the case law of the ECtHR on the matter may shed light on the question whether the Court will indeed take this extra step, or remain within the current muzzy confines.
3.2. The Use of Statements of Anonymous Witnesses as Evidence to Found a Conviction
Although the ECtHR acknowledges the reliance on sources such as anonymous informants in the course of the pre-trial investigation stage, the subsequent use of their statements by the convicting court is a separate issue which requires strict examination.Footnote 93 The Court frames its assessment of the issue within the broader question of whether the applicant was afforded a fair trial. Specifically, it examines whether the restrictions placed on the defence were sufficiently counterbalanced by the procedure followed by the judicial authorities.Footnote 94 Until recently, the Court held that even when counterbalancing procedures could be found to compensate sufficiently for the impediments under which the defence labours, a conviction based either solely or to a decisive extent on anonymous statements sets far-reaching limitations on the rights of the defence, which are generally irreconcilable with the guarantees contained in Article 6 (‘the sole or decisive rule’).Footnote 95
More recently, however, the ECtHR has relaxed its sole and decisive rule.Footnote 96 Instead of a definite rule, which, if not met, would result in an automatic violation, it is now one consideration among several that inform the Court's reasoning, a violation of which alone is not enough to constitute a violation of the defendant's right to examine witnesses. That stated, the Court has defined a relatively closed checklist to follow in assessing the matter. In Ellis and Simms and Martin v United Kingdom Footnote 97 the evidence given anonymously was not the sole evidence on the basis of which the conviction was found, but was considered ‘decisive’ in respect of some of the applicants. The Court clarified the considerations that must be considered in establishing whether the use of anonymous statements violates the defendant's right to examine witnesses:Footnote 98
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• whether there are good reasons to keep the identity of the witness secret;
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• whether the evidence of the anonymous witness was the sole or decisive basis of the conviction;
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• when a conviction is based solely or decisively on the evidence of anonymous witnesses, the proceedings must be subject to the most searching scrutiny; this means that there must be sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence.
This list illustrates that notwithstanding the decisiveness or exclusivity of the evidence provided by an anonymous witness in basing a conviction, in principle counterbalancing factors are able to ‘cure’ their use. That said, in Ellis and Simms and Martin the Court considered that the defence had the opportunity to examine the anonymous witnesses. Clearly, this is considered a weighty counterbalancing measure, especially when such evidence is of more than marginal importance.Footnote 99 Therefore, Bas de Wilde suggests that in the absence of such a measure,Footnote 100 the Court ‘will not often accept anonymous statements of non-examined witnesses and that, in addition, such statements will not be allowed to be of decisive importance’. In any case, when such evidence is the sole base of a conviction, the counterbalancing measures must be very significant.Footnote 101
The recent ruling of the ECtHR in Balta and Demir v Turkey Footnote 102 confirms de Wilde's prediction. The case concerned the applicants’ conviction on the basis of statements made by an anonymous witness. The Court ruled in favour of the applicants, finding a violation of Article 6. Following the above list, the Court concluded that: (i) no reasons were given for the decision to preserve anonymity; (ii) the evidence was not the sole piece of evidence, but was decisive; (iii) the witness did not appear before the trial judge; (iv) the defence was not given the opportunity to direct questions to the witness; and (v) the domestic Turkish court did not even consider the use of less restrictive procedural safeguards available under Turkish law.Footnote 103 A question that still remains unanswered concerns circumstances in which the defence was denied the opportunity to question the witness, yet less restrictive means were implemented, or considered.
3.2.1. ECtHR Jurisprudence Situated within International Law
International standards that deal specifically with witness anonymity are found primarily in the rules and procedures of the international criminal tribunals. Rule 69 of the Rules of Procedure and Evidence of the ICTY and the ICTR concern the ‘Protection of Victims and Witnesses’. According to the ICTY rule,Footnote 104 the prosecutor may, in exceptional circumstances, 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 such person is brought under the protection of the Tribunal’. Yet, the identity of the victim or witness must ‘be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence’. Under Rule 81(4) of the ICC Rules of Procedure and Evidence,Footnote 105 a Chamber shall, on its own motion or at the request of the prosecutor, the accused, or any state, take the necessary steps to protect the safety of witnesses and victims and members of their families, including by authorising the non-disclosure of their identity prior to the commencement of the trial. Decisions authorising the non-disclosure of the identity of a prosecution witness must be supported by sufficient reasoning. While the extent of the reasoning varies according to the specific circumstances of each case, it is nevertheless essential that the reasoning indicates with sufficient clarity the basis of the decision – that is, it must reveal the relevant facts underlining it.Footnote 106
The principle guiding the major international criminal tribunals is that measures implemented for the protection of victims and witnesses must be consistent with the rights of the accused and, with regard to anonymity, it will not be permanent. The identity of the witness must be disclosed to the defence with sufficient time before the trial to allow adequate time for the preparation of the defence.Footnote 107
On occasion, however, the ICC has allowed anonymity in segments of the trial proceedings, allowing concealment of identity 45 days before the witness is summoned to testify. In doing so, it has underscored that in future it would not easily defer to similar requests to extend the period of anonymity beyond the pre-trial stage.Footnote 108 In any case, concealment of the witness's identity cannot cover the period during which the witness is required to testify.Footnote 109 The ICTY also addressed anonymity in the Tadić case, where it permitted the use of anonymous witnesses whose identity was withheld from the defendant for the purpose of protecting the latter and his family from retaliation.Footnote 110 However, this case is ‘no longer good law’.Footnote 111 In his dissenting opinion in Tadić, Judge Stephen stressed that the ICTY Statute ‘does not authorize anonymity of witnesses where this would in a real sense affect the rights of the accused’.Footnote 112 Judge Stephen's opinion has prevailed in the long run and the ICTY has never since granted such anonymity, although the witness's identity may continue to be protected from the media and the public.Footnote 113
As detailed above, the jurisprudence of the ECtHR pivots around the ‘sole and decisive rule’, which requires that when a conviction is based solely or decisively on the evidence of anonymous witnesses, the proceedings must be subject to strict scrutiny. In its assessment the Court will also scrutinise the reasons underlying the decision to allow non-disclosure of the witness's identity and whether less restrictive means could have been implemented to diminish the limitation of the defendant's rights. In comparison, the rules and jurisprudence of the international criminal tribunals do not touch upon the weight given to the evidence in the conviction for the simple reason that they limit the use of anonymous witnesses to the pre-trial proceedings. The tribunals’ stand is therefore more clear-cut in favour of the defendant's rights.
This conclusion should be considered given that the ICTY and the ICC both hold that the protection of victims and witnesses – which is not explicitly included in Article 6 of the ECHRFootnote 114 – is one of the primary considerations that inform its interpretation of its rules.Footnote 115 Thus, one could expect that the ECtHR would attribute more weight to defendants’ rights when balancing between their rights and those of witnesses and victims, the latter falling within the interest of ‘protecting the rights of others’. This considered, the Court's recent loosening of the ‘sole and decisive rule’ in favour of a more flexible ‘proceedings as a whole’ approach is not only unfortunate, but also hinders the consolidation of a consistent body of international law on the matter.Footnote 116
3.3. Non-Disclosure of Information Forming the Basis of Allegations against the Detainee
When a person is detained on the basis of reasonable suspicion of unlawful behaviour, the guarantee of procedural fairness under Article 5(4) requires that the detainee be given an opportunity to effectively challenge the allegations against her or him.Footnote 117 This requires authorities to disclose to the detainee the information which informs the state's allegations. In cases where there exists a strong public interest in keeping some of the relevant information secret – for example, to protect vulnerable witnesses or intelligence sources – the ECtHR acknowledges the need to place restrictions on the right of disclosure, while ensuring that the detainee is not deprived of the opportunity to effectively challenge the basis of the allegations.Footnote 118 In order to be able to ‘effectively challenge’, the defence must have access to information necessary to assess the lawfulness of a detention. In other words, non-disclosure cannot deny a party knowledge of the very essence of the allegations against him or her. The ECtHR has upheld this standard against weighty arguments, for example, that disclosure would jeopardise ongoing and complex criminal investigations, or that withholding information is necessary to prevent suspects from tampering with evidence and undermining the course of justice.Footnote 119
The ECtHR has further stressed that it is the defendant who must be informed. Hence, the use of special advocates – who have access to secret intelligence information – does not replace the obligation to inform the defendant.Footnote 120 A and Others v United Kingdom Footnote 121 concerned ‘closed material’ procedures, which allowed the prosecution to introduce sensitive intelligence material in the course of secret hearings to which only the judge and special advocates had access. Some of the applicants had been charged with involvement in fundraising for, or membership of terrorist groups linked to Al Qaeda. The ECtHR accepted that during the period of the applicants’ detention there existed an urgent need to protect the UK population from terrorist attack, and a strong public interest in obtaining information about Al Qaeda and in maintaining the secrecy of the sources of such information.
However, while affirming that special advocates have the potential to fulfil a significant role in counter-balancing the lack of full disclosure and the lack of a full, open, adversarial hearing, the Court also noted that special advocates would be hindered in performing their function without participation by the detainee as to how to use the information. As such, the open material must be sufficiently specific, enabling the applicant ‘to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations’. General assertions do not meet this standard.Footnote 122
What is considered by the ECtHR as ‘sufficiently specific’? It found that allegations that included specific details about the purchase of equipment, possession of documents linked to named terrorist suspects, and meetings with named terrorist suspects satisfied the ‘sufficiently specific’ benchmark.Footnote 123 On the other hand, allegations of involvement in fundraising for terrorist groups supported by open evidence – such as evidence of large sums of money moving through a bank account or of money raised through fraud – did not meet the required standard as the evidence which had allegedly provided the link between the money raised and terrorism was not disclosed.Footnote 124 The open allegations in respect of the remaining applicants, which had been of a general nature (involving membership) were similarly found to violate Article 5(4).Footnote 125
3.3.1. ECtHR Jurisprudence Situated within International Law
The UN Working Group on Arbitrary Detention has enumerated exceptions to the detainee's right to full disclosure of the information underlying the detention.Footnote 126 The disclosure of information may be restricted where a court concludes that it is necessary in light of a legitimate aim as long as such restrictions are non-discriminatory and are consistent with relevant standards of international law, and provided that less restrictive means would be unable to achieve the same result. Any restriction must also be proportionate. In the event that the authorities refuse to disclose the disputed evidence and the court does not have the authority to compel such a disclosure, the court must order the release of the person detained.Footnote 127
The Court of Justice of the European Union (CJEU) addressed the legitimacy of the use of secret information in the ‘Kadi trilogy’. Kadi and Al Barakaat International Foundation were considered by the UN Sanctions Committee to be associated with Osama bin Laden, Al Qaeda or the Taliban. Pursuant to Security Council resolutions, all UN member states were obliged to freeze the funds and other financial resources controlled by such persons or entities. In order to give effect to those resolutions within the European Community (EC), the Council adopted a regulationFootnote 128 ordering the freezing of funds and other economic resources of persons and entities and created a list of such persons. Kadi and Al Barakaat were placed on the list in October 2001. They subsequently brought actions for annulment of the regulation. They claimed that the Council was not competent to adopt the regulation at issue and that it infringed several of their fundamental rights, inter alia, the rights of defence, especially the right to be heard and the right to effective judicial review. The Court dismissed the claims,Footnote 129 concluding that the member states were required to comply with the Security Council resolutions under the terms of the UN Charter.Footnote 130
Kadi and Al Barakaat brought appeals against those judgments before the CJEU. Deciding in their favour, the CJEU set aside the earlier judgments.Footnote 131 The CJEU found that Kadi and Al Barakaat were denied an effective review by the European courts based on the EU Charter of Fundamental Rights.Footnote 132 In reaching its decision, the Court stressed that the claimants were not properly informed of the grounds for their inclusion on the UN list and were therefore denied the opportunity to obtain judicial review of this decision, resulting in a violation of their right to be heard.Footnote 133
Following that judgment, the European Commission disclosed to Kadi the summary of reasons for his being listed. After obtaining his comments on those reasons, the Commission decidedFootnote 134 to maintain his name on the EU list. In response, Kadi brought a new action for annulment before the General Court.Footnote 135 The General Court held that because information and evidence had not been disclosed, and indications contained in the summary of reasons provided by the Sanctions Committee appeared to be too vague, Kadi's rights of defence had once again been violated. The judgment was appealed against by the Commission, the Council and the UK.
In the third round,Footnote 136 the CJEU held that in proceedings relating to the listing of an individual on the suspected terrorist list, the competent EU authority must disclose to the individual the evidence underpinning its decision. Accordingly, the individual must be able to obtain the summary of reasons provided by the Sanctions Committee to support the committee's decision to impose restrictive measures on him. That authority must also ensure that the individual is given the opportunity to respond with his views on the grounds for the listing and must examine whether those reasons are well founded.Footnote 137
The CJEU held that in the event that the listed person challenges the lawfulness of the decision, the courts of the EU may request the competent authority to submit to it the information or evidence needed to assess whether those reasons are capable of supporting the inclusion of the listed person. If the authority is unable to accede to the request, it is then the duty of those courts to base their decision solely on the material which has been disclosed to them. If that material is insufficient to allow a finding that a reason is well founded, the EU courts must disregard that reason as a basis for the contested decision to list or maintain a listing.Footnote 138
If a court is satisfied that the reasons for the imposition of restrictive measures, relied on by the authority, do indeed preclude the disclosure to the person concerned of information or evidence produced before it, the court is allowed to consider possibilities such as disclosure of a summary outlining the content of the information or that of the evidence in question. At least one of the reasons mentioned in the summary must be sufficiently detailed, specific and substantiated, and must in itself constitute a sufficient basis to support the imposition of the restrictive measures at hand. In the absence of one such reason, the court must annul the decision.Footnote 139
Summing up the international instruments and bodies discussed above, it is possible to form a few common minimum standards. The need to restrict disclosure of information to claimants, suspects or defendants is widely acknowledged for the protection of competing interests – primarily, but not restricted to, national security, witness protection, and when disclosure may prejudice further or ongoing investigations. As it clearly runs counter to the principle of adversarial proceedings and places a significant obstacle on the right to an effective defence, non-disclosure, or restricted disclosure, should not only pursue a legitimate aim, but also be a last resort after less restrictive measures have been ruled out. In any case, the reasons informing a court's decision to allow non-disclosure should be made clear to all parties. The spirit of the CJEU Kadi rulings also entails the requirement that any decision on disclosure should be open to an appeal.
Even when non-disclosure satisfies these requirements, a certain core of the secret information must be disclosed to the defence. It is unclear though what constitutes ‘enough’ information in order not to completely empty the right to an effective defence. The CJEU has accepted a summary of the non-disclosed evidence, provided that it is sufficiently detailed and specific to allow effective exercise of the rights of the defence and judicial review of the lawfulness of the contested measure. The case law of the ECtHR discussed provides some examples,Footnote 140 as do the Kadi rulings. What stands out in the jurisprudence of these courts, and from the critique by the ECtHR of the UK's closed material procedures, is that the defendant must have access to the core of the evidence against him or her. The use of special advocates cannot substitute the requirement that defendants have control over their lines of defence.Footnote 141
Among the EU member states, there is no clear consensus regarding the role and legitimacy of the use of secret evidence.Footnote 142 Considering the disparity of practices and standards of protection, the jurisprudence of European courts should be attributed significant weight in attempting to consolidate international standards on the specificity of information that must be disclosed, notwithstanding competing interests. The central role of the ECtHR jurisprudence in the process of forming these international standards has been acknowledged by the ICC, which has interpreted its rules on the matter in light of corresponding ECtHR case law.Footnote 143
3.4. The Limits of Trial in Absentia
The duty to guarantee a defendant the right to be present in the courtroom (either during the original proceedings or at a retrial) is ranked by the ECtHR as one of the essential requirements of Article 6.Footnote 144 A defendant who wishes to be present at his or her trial, therefore, has a right to be present at the trial, subject to behaviour that does not obstruct the course of the trial. This does not mean that proceedings carried out in the absence of the defendant are in themselves contrary to Article 6.Footnote 145 However, the Court maintains:Footnote 146
A denial of justice will nonetheless occur where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been unequivocally established that he has waived his right to appear and to defend himself.
The unequivocal waiver must be accompanied by safeguards that recognise the importance of the right of appearance. A complete retrial before a first instance court or tribunal is not mandatory, provided that an appeal hearing allows the submission of new evidence and new legal arguments.Footnote 147
In the case of Sejdovic v Italy the Grand Chamber detailed the conditions under which a defendant is considered to have waived his right to participate in the trial. A waiver must (i) be informed voluntarily in an established unequivocal manner; (ii) be attended by minimum safeguards commensurate with its importance; and (iii) not run counter to any important public interest. In addition, it must also be shown that the defendant could reasonably have foreseen the consequences of her or his conduct, and a person charged with a criminal offence must not carry the burden of proving that he was not seeking to evade justice or that his absence was as a result of force majeure.Footnote 148
The ECtHR has made it clear that a defendant who decides not to appear does not lose the right to effective representation by counsel.Footnote 149 While acknowledging the need for the ability to discourage unjustified absences, the right to an effective defence is held by the Court to be ‘one of the fundamental features of a fair trial’, which may not be subject to such a restriction.Footnote 150 Therefore, the denial of legal representation as a sanction for absence in the proceedings is a disproportionate sanction.Footnote 151
3.4.1. ECtHR Jurisprudence Situated within International Law
The right of a criminal defendant to be present at his or her trial is universally recognised as a fundamental right, enshrined in Article 14(3)(d) of the ICCPR. Notwithstanding the apparently mandatory wording of the article,Footnote 152 the state parties to the ICCPR do not consider the right to be absolute, but subject to certain restrictions.Footnote 153 This view has been reaffirmed by the HRC.Footnote 154 In General Comment No 13, the HRC stated:Footnote 155
The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary.
However, it does not define what those ‘justified reasons’ are. Among the regional human rights bodies, the ECtHR is the only one that has elaborated on the reasoning of the HRC and defined the legitimate scope of the exceptions to trials in absentia,Footnote 156 as described above.
International criminal courts have taken a different approach (the Special Tribunal of Lebanon being a criticised exception).Footnote 157 Following the path paved by the International Military Tribunal at Nuremburg, which used its power to try defendants in absentia only once,Footnote 158 the statutes of the modern international criminal tribunals have not allowed trials in absentia.
As a rule, the ICTY and the ICTR do not allow trials in absentia (subject to the exception of disruptive behaviour on the part of the defendant).Footnote 159 Trial in absentia was a contested issue during the drafting of the ICTY Statute owing to the difficulty in reaching a compromise among the different approaches taken in civil law, common law and international jurisdictions.Footnote 160
The final version, found in Article 21(d) of the ICTY Statute and Article 20(d) of the ICTR Statute, affords the accused the right to be tried in his presence, making no mention of exceptions.Footnote 161
Summing up, subject to limitations, full trials in absentia are generally accepted under international law.
Similarly, the ECtHR does not require an initial appearance by the accused in court in order to satisfy the fair trial guarantees contained in the ECHR according to the conditions discussed above. This being the state of the art, the principled approach of the international criminal tribunals seems to be the odd one out. This may be attributed to the unique complexity and sensitivity of the proceedingsFootnote 162 or to the importance of adhering to strict rules of procedure, especially in light of the criticism of illegitimacy which these courts often face. Although full trials in absentia are prohibited, the tribunals have allowed trials to continue when the defendant refused to attend further proceedings, reckoning that any other outcome would allow the accused ‘to impede the administration of justice’ and would be ‘tantamount to judicial abdication of the principle of legality and a capitulation to a frustration of the ends of justice without justification’.Footnote 163 The tribunals, therefore, in practice have come closer to the approach taken by the ECtHR, provided that a waiver can be established.
The ECtHR has persistently ruled against states which have placed heavy sanctions on defendants who failed to appear in court. As Gardner observed, the scrutiny by the ECtHR in recent decades has shifted the civil law sanction-based paradigm to a more rights-based approach. This can be seen in its rulings that the denial of legal representation as a sanction for waiving the right to be present is disproportionate.Footnote 164 In this respect, by the practice of the ECtHR, the traditional divergences between the civil and common law systems are gradually shrinking by moving closer to the common law model.
3.5. Preventive Detention for Security Purposes or for Intelligence Gathering
Article 5 protects the right to liberty and security, prohibiting detention which does not fall within one of the enumerated exceptions. The third exception, which is the most relevant for the discussion of detention for preventive purposes, read as follows:Footnote 165
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
Although the text of Article 5(1)(c) lends itself to the interpretation that preventive detention before the commission of an offence is in line with the ECHR (‘… or when it is reasonably considered necessary to prevent his committing an offence’) the Court has made it clear that detention within the meaning of Article 5(1)(c) is permitted only for the purpose of initiating criminal proceedings within a reasonable time.Footnote 166 Therefore, preventive detention is, as a rule, prohibited under the Convention.Footnote 167 For preventive detention to be lawful there must be concrete and specific offences which a person is to be prevented from committing. Vague references to offences of an extremist nature are insufficient. The detention of persons based on general suspicions, accordingly, is never permitted.Footnote 168
The case of Ostendorf v Germany Footnote 169 concerned a football supporter's complaint about his four-hour detention in police custody for the purpose of preventing him from organising and partaking in a violent brawl between football hooligans. The ECtHR was satisfied that the police had had sufficient information to assume that the applicant was planning a hooligan brawl during which concrete and specific offences, namely bodily assaults and breaches of the peace, would be committed. His detention could thus be classified as effected ‘to prevent his committing an offence’. However, for the preventive detention to conform with Article 5(1)(c), it was further necessary to be ‘effected for the purpose of bringing him before the competent legal authority’. The Court observed that the legal basis according to which the applicant was detained was aimed exclusively at preventing and not at prosecuting offences. The German courts had subsequently justified his police custody only by relying on preventive purposes. He had not been suspected of having committed a criminal offence, as his preparatory acts were not punishable under German law. His police custody had thus served purely preventive purposes and was not aimed at bringing him before a judge in a criminal trial.
The ECtHR dismissed the German government's opinion that the Court's case law should be reversed to the effect that Article 5(1)(c) be interpreted to extend to preventive police custody. The Court further dismissed the government's argument that the state's obligation under Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment) to protect the public from offences should be taken into account in the interpretation of Article 5(1) to authorise preventive police custody.Footnote 170
The interpretation of Article 5(1)(c) also excludes preventive detention for security purposes (security detention).Footnote 171 Thus, administrative detention for national security reasons such as the fight against terrorism is treated as an exception to the Convention guarantees, which may be justified exclusively by virtue of derogation from Article 5.Footnote 172 Yet the ECtHR has underscored that even under a justified derogation from Article 5 of the ECHR, ‘derogation is not a carte blanche’.Footnote 173 Measures adopted under derogation – such as pre-trial detention without judicial control – must last no longer than is ‘strictly required by the exigencies of the emergency requiring derogation’.Footnote 174
In the 1961 Lawless v Ireland judgment, the ECtHR considered Ireland's detention of an IRA activist for five months under an emergency statute that authorised a minister of state to order detention whenever the minister ‘is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State’.Footnote 175 The Court ruled that the security detention could not be justified by Article 5(1)(c) and then considered whether the detention was justified by virtue of the government's derogation from Article 15. The Court concluded in the affirmative, based on what it considered to be sufficient procedural safeguards.Footnote 176 Cassel, however, argues that, in light of a recent British rulingFootnote 177 as well as recent rulings of the ECtHR which limit the length of permitted detentions to approximately one week even under justified derogations,Footnote 178 ‘it is unclear whether prolonged security detention can still be justified by derogation from the ECHR’.Footnote 179
The detention of an individual for the sole purpose of questioning as part of an intelligence-gathering exercise is also in violation of Article 5, as this ground in itself does not satisfy the Article 5(1)(c) ‘reasonable suspicion’ requirement.Footnote 180 That stated, under derogation, detention for interrogation can be justifiedFootnote 181 ‘only in a very exceptional situation’ provided that the detention is proved to be a measure strictly required by the exigencies of the situation and is accompanied by sufficient safeguards.
3.5.1. ECtHR Jurisprudence in the Context of International Law
Security detention is governed by both IHRL and IHL. Considering the focus of this contribution, I shall focus on the IHRL norms guiding the issue and not discuss security detention in circumstances which call for the application of IHL.Footnote 182 Nor will I directly engage with the issue of procedural constraints, but turn my attention to the legitimate grounds for detention.
The ECtHR and the HRC have demonstrated different approaches in dealing with security detention. While preventive detention for security grounds is, as a rule, prohibited under the ECHR in ‘normal’ times (of non-emergency), pure security-based detention is permitted under the ICCPR as long as it is considered reasonably necessary to contain the security threat in question.Footnote 183 Preventive detention for security purposes is generally permitted by international law, provided that it is based on grounds established by law; is not arbitrary, discriminatory or disproportionate (the substantive aspect); and adheres to procedural safeguards (the procedural aspect).Footnote 184 A detention is considered arbitrary or disproportionate when the use of the measure extends beyond what is strictly necessary to achieve the objective of preventing the security threat.Footnote 185 An extreme example is the detention of persons based not on individual necessity, but on their worth as ‘bargaining chips’ for future negotiations – a practice prohibited under international law.Footnote 186 These substantive requirements apply also in times of public emergency in the context of a justified derogation from the right to liberty under the ICCPR.
Detentions can thus be in violation of IHRL as a result of their arbitrariness, disproportionality or procedural deficiencies.Footnote 187 Hakimi argues that invalidation of detention, however, is rarely based on substantive grounds. She critically points out that the HRC has neglected to provide guidance on when security detention is considered ‘reasonably necessary’, preferring to focus exclusively on procedural constraints instead of on the legitimacy of the substantial grounds that initiated the detention. When reviewing the US detention regime in Guantánamo Bay, the HRC did not dismiss the use of administrative detention (as opposed to the possibility of detaining under criminal law) and also bypassed the question of whether the Guantánamo detentions would be ‘arbitrary’ even if accompanied by sufficient procedural safeguards.Footnote 188
Hakimi perceives the HRC's failure to elaborate on and scrutinise the standard of non-arbitrariness as ‘endemic to its jurisprudence on pure security-based detention’.Footnote 189 The HRC ‘ducks the question of arbitrariness’ not only in cases in which such detention runs counter to the procedural constraints flowing from the ICCPR, but also in the course of reviewing the practice of states which admit to implementing security detention while arguing to do so in compliance with their ICCPR obligations. Leading examples are the HRC's review of detention policies in India and in Israel, cases in which Hakimi argues that substantive constraints were violated, but were dealt with as procedural issues in the HRC review.Footnote 190
Unlike security detention – which is principally permitted under international law – indefinite detention, solely or primarily for purposes of gathering intelligence and interrogation, is, according to Cassel's assessment, probably not lawful under US or international law, although not explicitly prohibited under IHRL.Footnote 191 This conclusion does not correspond so well with up-to-date state practice as documented in the Oxford Pro Bono Publico report on the matter.Footnote 192 The report concludes:Footnote 193
[To] the extent that a trend in state practice can be detected, there may be a slight trend in favour of permitting administrative detention for, as a minimum standard, the purposes of securing evidence, gathering intelligence, or ensuring the availability of witnesses. However, the divergence in the practice of the jurisdictions under study makes it difficult to draw any conclusions regarding the potential content of customary international law on this issue.
However, the report's conclusions suggest an emergence of a customary international law norm prohibiting detention on grounds of security or intelligence gathering with no maximum duration.Footnote 194
Returning to the jurisprudence of the ECtHR, the red line observed is the prohibition of security detention in the absence of a public emergency which may justify derogation from Article 5. In addition, the ‘reasonable suspicion’ requirement incorporated in Article 5(1)(c) has been interpreted by the ECtHR as requiring concrete and specific suspicion that the detainee would otherwise commit an offence. In the context of terrorism the requirement is slightly weakened. A member state is not required to establish the reasonableness by disclosing confidential sources of information, yet ‘exigencies of dealing with terrorist crime cannot justify stretching the notion of “reasonableness” to the point where the safeguard secured by Article 5 is impaired’.Footnote 195 Because of the absence of a standard in IHRL for the quantity or quality of evidence needed to justify security detention,Footnote 196 the ECtHR rulings on the issue can serve as illustrative examples.Footnote 197
The Court tends to grant member states a wide margin of appreciation in assessing whether their domestic situation amounts to an emergency that allows for derogation, especially when domestic courts have reviewed and upheld the decision of the executive.Footnote 198 Thus, the crux of its review is – similar to Hakimi's argument with respect to the HRC – the member states’ compliance with procedural constraints. Nevertheless, the attempt by the ECtHR to limit the acceptability of security detentions to emergency situations and its prohibition of detention for intelligence gathering signals that, within the boundaries of an international community which does accept the use of security detention, inherent danger to liberty must be appreciated and its use kept to an absolute minimum.Footnote 199
4. Conclusion
This contribution set out to break down the right to a fair trial in the broad sense to a number of concrete guidelines, or ‘red lines’, which when overstepped will result in a violation of the right to a fair trial. Because of the centrality of balancing and proportionality in the jurisprudence of the ECtHR, the task of extracting clear-cut ‘do nots’ is not easy. Such an attempt could also be perceived as a categorical error in light of the fact that balancing is inherent in the ECHR and accordingly to its interpretation by the ECtHR. The article did not set out to refute such an argument.Footnote 200 Instead, its aim was more modest and pragmatic: in light of the aim of the Convention in guaranteeing rights that are ‘practical and effective’, how can a policymaker who seeks to implement these rights in a domestic setting extract guidelines from the vast sea of ad hoc case law? This is not to imply that the process of policymaking itself should not incorporate balancing, but that such balancing should not be totally unconstrained. Accordingly, the examples discussed show that even when quasi-guidelines can be identified, some room for discretion is always left. Yet these red lines do help in delimiting the sphere of discretion. For example, although the Court has relaxed its rule that a conviction based solely or to a decisive extent on anonymous statements is never fair, it has developed a list which structures the strict scrutiny that such circumstances call for.
The position of the ECtHR on the issues examined was subsequently set within the broader context of international law and compared with the jurisprudence of IHRL bodies and ICL courts. The ECHR is a treaty. Legally, it places obligations only on states parties to it. However, because of its lawmaking character and its explicit objective to enforce and give concrete interpretation to certain rights of the Universal Declaration of Human Rights, any country that defines itself as a member of the community of values which underlie the Convention should look to the Court's interpretation of the fundamental rights which it protects. As the most effective system of rights protection in the world, the ECHR and the ECtHR case law deserve a weighty position in the interpretation and consolidation of IHRL.
The contextualisation within international law and the comparison of the jurisprudence of the ECtHR with that of other bodies raised varying conclusions. As to anonymous witnesses, for example, the Court's approach leaves relatively little room for discretion when evidence obtained from anonymous statements is decisive in the finding of a conviction, and certainly when it is the sole evidence. However, it seems much less strict in comparison with the stand taken by ICL tribunals which limits the use of anonymous statements to pre-trial proceedings. This difference can be explained by the respective objectives of the ECHR and ICL and by the unique trials conducted in ICL tribunals. However, the more lax approach of the ECtHR cannot be brushed away considering that – contrary to the statutes of the ICL tribunals – the rights of witnesses and victims are not specifically protected under the ECHR. Thus, we could expect that a defendant's rights under the ECHR would receive at least the same protection as those of the ICL tribunals’ defendant which, pursuant to statutory provisions, must be balanced against the rights of witnesses and victims. As to the limits of non-disclosure of evidence to the defence, to give another example, the ECtHR case law on the specificity of information which forms the ‘essence of the allegations’ (and therefore must be disclosed, regardless of competing interests) is of significant importance because of the lack of consensus among states on the matter.
The limited number of issues discussed here does not enable the drawing of broader conclusions regarding the position of the ECtHR in relation to other IHRL and ICL regimes. It is also not clear that there is necessarily an overarching pattern. However, further contextualisation of specific ECHR rights and the red lines extracted from them in broader international law will help in assessing the Court's jurisprudence from a wider and richer point of view – and will enable, for example, putting into perspective characteristics of the Court as either activist and overly imposing obligations on its member states or, alternatively, conservative and hesitant in expanding the scope of Convention rights.
