Saturday, 12 December 2015

May the right of petition to Strasbourg actually be hindered? The Wang Yam case.

The United Kingdom is bound in international law by the European Convention on Human Rights (ECHR).   The road from the UK to the European Court of Human Rights (E Ct HR) opens once Arts. 34 and 35 apply:

Art 34 - The court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.  (My  emphasis).

Art 35 - The court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

Art.35 goes on to prevent the E Ct HR dealing with anonymous applications or applications which are substantially the same as a matter already examined by the court.  Applications may also be ruled inadmissible if one or more of a number of grounds apply - e.g. that the application is "manifestly illfounded."

The last sentence of Art.34 is clearly important - "The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."  Applications are against the State (referred to as a High Contracting Party) and it is therefore logical that the State (the respondent to any application) should not place obstacles in the way of individuals being able to present their application to the court.  It is arguable that restrictions ought not to be imposed by the State so that the individual is prevented from presenting his application to Strasbourg in the way he wishes.  In the case of Wang Yam, this has come before the English courts.

Article 38 should also be noted.  This enables the E Ct HR to request additional information from the UK government if it is considered necessary to decide an application.

Wang Yam case:

An appeal from the High Court in the case of R (Wang Yam) v Central Criminal Court and others has been heard by the Supreme Court of the UK.  The hearing may be viewed via the Supreme Court website.   The certified question is whether there is a power under the common law or under s.12 of the Administration of Justice Act 1960 to prevent an individual from placing material before the European Court of Human Rights and, if so, can the power be exercised where the domestic court is satisfied that it is not in the interests of state for the material to be made public even to the Strasbourg Court.

Wang Yam was charged with the murder of Allan Chappelow in 2007   The prosecution successfully applied to Ouseley J for large parts of the case to be heard in camera ("the Order"). The appellant's attempt to appeal the order to the Court of Appeal was unsuccessful. He was ultimately found guilty of murder and his appeal against conviction was also unsuccessful. He now seeks to make an application to Strasbourg on the basis that holding parts of his trial in secret was a breach of his rights under art.6 ECHR.  Lord Pannick QC (for Wang Yam) informed the Supreme Court that the European Court was taking his client's application (alleging breach of Article 6 - Right to Fair Trial) seriously and had already communicated with the British government regarding the case.  

In February 2014, Ouseley J refused to vary the order to permit the appellant to deploy information covered by the order in his application to Strasbourg - 27th February 2014 - Judgment of Ouseley J.  The appellant then applied for judicial review of Ouseley J's decision. Permission for judicial review was granted, but the appellant's substantive application was dismissed. The Divisional Court certified a question for a 'leapfrog' appeal in accordance with s.1(2) of the Administration of Justice Act 1960, but refused permission to appeal.  The Supreme Court permitted the appeal to go ahead - The Independent 18th June 2015.  The judgment appealed is at [2014] EWHC 3558 (Admin)

It therefore appears that the order of Mr Justice Ouseley is hindering the effective exercise of Wang Yam's right of individual petition to the court.  Wang Yam seeks to present to the court information but is prevented from doing so by the order of the High Court.

Ouseley J had received a Public Interest Immunity certificate giving reasons why parts of the Wang Yam trial had to be held in camera.  The Divisional Court held that it must be open to the court in an appropriate case to conclude that the public interest, such as ensuring national security and possibly the right to life itself, will be so undermined by making confidential material available to third parties, that the court can order that there should be no communication of such material.  The court went on to state that the Government could not simply assert that in its view priority should be given to national security and thereby draw a veil over the issue. It is ultimately for the court to balance the conflicting interests and to determine whether or not the interference is proportionate.

Of course, the E Ct H R is no ordinary third party.  It is an international court operating under the aegis of the Council of Europe and with a clear jurisdiction to hear individual petitions.  It would be a worrying underlying issue if the E Ct H R could not actually be trusted with material considered by the UK government to affect national security.  Is there a lack of trust in  either (or both) of the European court's procedures or staff (including perhaps the judiciary).  The Rules of the E Ct H R make provision for hearings to be in camera on (inter alia) grounds of national security (Rule 63).

The Supreme Court of the UK will hand down its judgment on Wednesday 16th December.

In the event that the Supreme Court decides against Wang Yam there are other avenues available to him via the European Court - e.g. he could complain that the UK has hindered his Art 34 right of individual petition.  This possibility is discussed near the start of the afternoon session.

Notes and Links:

The pre-trial interlocutory appeal against order of Ouseley J - Lord Phillips LCJ, Silber and Underhill JJ: [2008] EWCA Crim 269.

Appeal against conviction - judgment of the Court of Appeal (Criminal Division)

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