Sher and Others v. the United Kingdom (application no. 5201/11)
 
UK courts struck right balance between the fight against terrorism and suspects’ procedural rights
 
In today’s Chamber judgment1 in the case of Sher and Others v. the United Kingdom (application no. 5201/11) the European Court of Human Rights held:
by six votes to one, that there had been no violation of Article 5 § 4 (right to take proceedings to challenge lawfulness of detention) of the European Convention on Human Rights;
and unanimously, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention.
The case concerned the arrest and detention of three Pakistani nationals, the applicants, in the context of a counterterrorism operation. The applicants were detained for 13 days, before ultimately being released without charge. During that period they were brought twice before a court with warrants for their further detention being granted. They were then taken into immigration detention and have since voluntarily returned to Pakistan. In their complaints before the European Court, they complained in particular about the hearings on requests for prolongation of their
detention because certain evidence in favour of their continued detention had been withheld from them and that one such hearing had been held for a short period in closed session. They also complained about the search of their homes during their detention.
The Court accepted that the UK authorities had suspected an imminent terrorist attack and had launched an extremely complex investigation aimed at thwarting it. Reiterating that terrorism fell into a special category, it held that Article 5 § 4 could not be used to prevent the use of a closed hearing or to place disproportionate difficulties in the way of poliçe authorities in taking effective measures to counter terrorism. In the applicants’ case, the threat of an imminent terrorist attack and national security considerations had justified restrictions on the applicants’ right to adversarial proceedings concerning the warrants for their further detention.
Similarly, the Court found that the fight against terrorism and the urgency of the situation had justified a search of the applicants’ homes pursuant to a search warrant framed in relatively broad terms.
Moreover, there had been sufficient safeguards against the risk of arbitrariness both in respect of the proceedings for warrants of further detention, in the form of a legal framework setting out clear and detailed procedural rules, as well as in respect of the search warrants, which had been issued by a judge, without the applicants suggesting that there had been no reasonable grounds for doing so.

L.M. and Others v. Russia (application nos. 40081/14, 40088/14, and 40127/14)
 
Expulsion from Russia to Syria would violate the European Convention on Human Rights
 
The case of L.M. and Others v. Russia (application nos. 40081/14, 40088/14, and 40127/14) concerned the impending expulsion of three men to Syria from Russia and their detention pending expulsion in Russia.
In today’s Chamber judgment1 in the case, the European Court of Human Rights held, unanimously:
that the applicants’ forced return to Syria would give rise to a violation of Article 2 (right to life)
and/or Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights;
that there had been a violation of Article 5 § 1 (f) (right to liberty and security) and Article 5 § 4
(right to have lawfulness of detention decided speedily by a court); and
that Russia had failed to comply with its obligations under Article 34 (right of individual petition).
This was the first time that the Court addressed in a judgment the issue of returns to Syria in the current situation. The Court found that, in view of international reports about the crisis in Syria and additional information about the applicants’ individual situation, the applicants had put forward a well-founded allegation that their return to Syria would expose them to a real risk to their lives and personal security.
Having regard to its finding that the applicants’ detention, since the last decision by the Russian courts confirming their expulsion order in May 2014, had been in breach of Article 5, the Court held, in application of Article 46 (binding force and execution of judgments), that Russia was to ensure the immediate release of two of the applicants who had so far remained in detention.

Aleksandr Shevchenko v. Russia (no. 48243/11)

The applicant, Aleksandr Shevchenko, is a Russian national who was born in 1979 and lives in Volzhskiy, Volgograd region (Russia).

The case concerned his pre-trial detention on suspicion of drug offences.

Mr Shevchenko was arrested in October 2010 on charges of attempted drug trafficking and, the charges subsequently being reclassified to purchase and storage of drugs, was convicted in April 2012 and sentenced to three years’ imprisonment. Before the referral of his criminal case for trial, he was detained on the basis of individual detention orders; after referral, he was detained on the basis of a collective detention order, which included his co-defendants. Mr Shevchenko’s appeals against his continued detention during the whole period of that detention were rejected, the judicial authorities referring to the gravity of the charges against him (and later also against his codefendants) and the risk that he/his co-defendants might abscond or reoffend. He was ultimately granted early release in February 2013.

Relying mainly on Article 5 §§ 3 and 4 (right to liberty and security) of the Convention, Mr Shevchenko alleged that his pre-trial detention for one year and six months had not been justified and that his appeals against certain detention orders (made in January and September 2011 and February 2012) had not been examined speedily.

Violation of Article 5 § 3

Violation of Article 5 § 4

Just satisfaction: 6,500 euros (EUR) (non-pecuniary damage)

In its decision in the case of Constancia v. the Netherlands (application no. 73560/12) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final.

The case concerned Mr Constancia’s complaint about being detained as a person of “unsound mind” in the absence of a precise diagnosis of his mental state. Mr Constancia, who was convicted of the violent manslaughter of an eight-year old boy, had refused to be examined, making the assessment of his mental condition impossible.

The Court found in particular that Mr Constancia’s trial court, in the face of his complete refusal to cooperate, had been entitled to conclude from the information obtained – notably via existing psychiatric reports drawn up on previous occasions, the opinion of a psychologist and a psychiatrist on Mr Constancia’s complete case file, including the audio and audio-visual recordings of his interrogations, as well as the trial court’s own investigation of the case file – that he was suffering from a genuine mental disorder which was of a kind or degree warranting compulsory confinement.

This is the first case in which the Court allowed other existing information to be substituted for a medical examination of the applicant’s mental state.

In today’s Chamber judgment in the case of Gallardo Sanchez v. Italy (application no. 11620/07) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 5 § 1 (f) (right to liberty and security) of the European Convention on Human Rights.

The case concerned the excessive length of a Venezuelan national’s detention in Italy with a view to his extradition to Greece.

The Court found that deprivation of liberty could be lawful in terms of domestic law but still arbitrary and thus contrary to the European Convention. Deprivation of liberty under Article 5 of the Convention was justified only for as long as extradition proceedings were being conducted.

Accordingly, where the proceedings were not conducted with due diligence the detention ceased to be justified.

The Court held in particular that in the context of an extradition allowing the requesting State to try a defendant, the criminal proceedings were still pending, the person detained with a view to extradition was presumed innocent, their ability to exercise their defence rights was considerably

limited, or even non-existent, and the authorities of the requested State were debarred from undertaking any examination of the case on the merits. For all those reasons the requested State was required to act with special diligence. However, Mr Gallardo Sanchez had been detained with a view to extradition for one and half years and the judicial phase.

In today’s Chamber judgment in the case of Corbet and Others v. France (applications nos. 7494/11, 7493/11 and 7989/11) the European Court of Human Rights held:

by a majority, that the applicants’ complaint under Article 6 §§ 1 and 2 (right to a fair trial / right to be presumed innocent) of the European Convention on Human Rights was inadmissible;

unanimously, that there had been a violation of Article 5 § 1 (right to liberty and security) on account of Mr Corbet’s detention on 24 July 2003.

The case concerned the applicants’ prosecution and conviction for misappropriating assets from the airline Air Liberté before it was put into compulsory liquidation.

The Court found that it had not been established that the use in criminal proceedings of statements made by the applicants before a parliamentary commission of inquiry had had any impact on their conviction or sentence.

The Court further held that Mr Corbet’s detention on 24 July 2003 had had no lawful basis and reiterated that at the time of the events there had been no provisions in French law governing detention from the expiry of a period in police custody until the detainee was brought before an investigating judge.