ECHR Holds that Arrest for Displaying Controversial Flag Breached Right to Freedom of Expression

In the case of Fáber v. Hungary, the ECHR held that Article 10 of the European Convention on Human Rights had been violated where Government authorities arrested and fined a man for displaying a controversial flag. 

On the day Mr. Fáber, a Hungarian national, was arrested, the Hungarian Socialist Party (MSZP) was holding a demonstration against racism and hatred in Budapest.  At the same time, members of Jobbik, a right-wing political party, held a counter-protest nearby.  Police observed Mr. Fáber standing near the demonstrators and holding an Árpád-striped flag at a location where, during the Arrow Cross regime(1944/1945), many Jews were exterminated. The police, who had testified that they were instructed not to allow the Árpád-striped flag within 100 meters of the MSZP demonstration, requested that Mr. Fáber cease displaying the flag or leave the area.  Mr. Fáber refused, saying that the flag was a historical symbol and no law prohibited its display.  He was held in police custody and subjected to interrogation for six hours.  He was also fined for disobeying police instructions.  On appeal, the Hungarian court upheld Mr. Fáber’s conviction, reasoning that his behavior was of a provocative nature. 

Article 10 reads as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ....

Mr. Fáber complained that his prosecution constituted an unjustified interference with his freedom of expression. 

The Court considered that this type of case required it to balance the right to freedom of assembly against the right to freedom of expression and, allegedly, against the right of others to freedom of assembly.

As the issue was not disputed, the Court concluded that there was an interference with Mr. Fáber’s right to freedom of expression.  The Court also concluded that the interference was prescribed by law and pursued the legitimate aims of “prevention of disorder” and “the protection of the rights and freedoms of others.”

To ascertain whether restrictions on the exercise of freedom of expression are necessary in a democratic society, the court determines whether the interference complained of corresponds to a pressing social need. 

The Court stated: “Given the applicant’s passive conduct, the distance from the MSZP demonstration and the absence of any demonstrated risk of insecurity or disturbance, it cannot be held that the reasons given by the national authorities to justify the interference complained of are relevant and sufficient.” 

Although some demonstrators may have been troubled by the display of the Árpád-striped flag, they made no verbal threat.  With respect to the rights of other demonstrators and public tranquility, the Court found that there was no pressing social need for police to intervene.  The Court found that, although some demonstrators may have considered the flag offensive, shocking, or “fascist,” its mere display could not disturb public order or impede the exercise of the demonstrators’ right to assemble, since it was “neither intimidating, nor capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons….”  The Court emphasized that bad feelings or outrage, in the absence of intimidation, could not constitute a pressing social need for the purposes of Article 10 § 2 of the Convention. 

The Court found that the restriction on Mr. Fáber’s right to freedom of expression did not meet a pressing social need and could not be regarded as necessary in a democratic society.  Thus, there was a violation of Article 10 read in light of Article 11 of the Convention. 

Malian Government Refers Situation in Mali to ICC

The Government of Mali, through its Minister of Justice H.E. Malick Coulibaly, has referred the situation in Mali since January 2012 to the International Criminal Court (ICC) so that it might be ascertained whether one or more specific persons should be charged with the commission of crimes.  The Malian Government says its courts cannot prosecute or try the perpetrators.

Earlier in the year, a coup toppled Mali’s democratic government.  More recently, the northern part of the country has fallen into the hands of Islamist rebels. 

The Government of Mali alleges that serious human rights violations and breaches of international law have occurred, including summary executions of Malian soldiers, rape, massacre of the civilian population, enlistment of child soldiers, torture, enforced disappearances, and the destruction of buildings and landmarks.  Such acts are within the ambit of articles 7 and 8 of the Rome Statute. 

According to a statement by ICC Prosecutor Fatou Bensouda, the Malian cabinet decided on May 30, 2012, to refer the situation to the ICC.  Ms. Bensouda stated that her office had been following the Mali situation since violence erupted around January 2012.  On July 1, Ms. Bensouda had warned that deliberate destruction of shrines in Timbuktu may constitute war crimes under article 8 of the Rome Statute. 

The Prosecutor stated that she intends to engage in a preliminary examination of the situation to determine whether an investigation should be opened.

ICC Issues Two Arrest Warrants

On July 13, 2012, Pre-trial Chamber II of the International Criminal Court (ICC) issued two arrest warrants with respect to the situation in the Democratic Republic of the Congo, one for Sylvestre Mudacumura and one for Bosco Ntganda.

Bosco Ntganda

Mr. Ntganda is suspected of committing war crimes and/or crimes against humanity during the conflict in the district of Ituri, Province Orientale. 

Mr. Ntganda was the deputy chief of staff for the Union des Patriotes Congolais (UPC)/Forces Patriotiques pour la Libération du Congo (FPLC) and commander of operations of the FPLC.  Ntganda commanded all FPLC sectors and brigades and all of the organization’s military operations. 

The prosecutor contended that Ntganda planned and commanded military attacks against the Lendu and other non-Hema tribes.  UPC and FPLC troops allegedly overran and ransacked villages and towns, killing and raping civilians across Ituri. 

Before a Chamber issues an arrest warrant, article 58(1) of the Rome Statute (hereinafter called “Statute”) requires that the Chamber be satisfied that there are reasonable grounds to believe that the accused person committed a crime within the jurisdiction of the ICC.  The evidence need only establish a reasonable conclusion that the person committed a crime within the jurisdiction of the Court, and it is not required that this be the only reasonable conclusion that can be drawn from the evidence.

Based on evidence presented by the Prosecutor, the Chamber determined that there are reasonable grounds to believe that Ntganda is responsible for three counts of crimes against humanity: persecution based on ethnic grounds; rape and sexual slavery; and murder.  The Chamber also concluded that there are reasonable grounds to believe that Ntganda is criminally responsible for the following war crimes: attack against the civilian population, murder, rape and sexual slavery, and pillaging. 

The Chamber found that Ntganda’s arrest was necessary to ensure his appearance at trial, to ensure that he does not obstruct or endanger the investigation, and to prevent the commission of crimes within the jurisdiction of the Court. 

This is the second arrest warrant issued by the ICC with respect to Mr. Ntganda.  The first arrest warrant for Ntganda was issued on August 22, 2006, for three counts of war crimes allegedly committed in Ituri: enlistment of children under age fifteen, conscription of children under age fifteen, and using children under age fifteen to participate in hostilities.

Sylvestre Mudacumura

Sylvestre Mudacumura is suspected of committing war crimes during the conflict in the Kivu provinces in the Democratic Republic of the Congo between January 20, 2009, and September 30, 2010.  Mudacumura was the top military commander of the Forces Démocratiques pour la Libération du Rwanda (FDLR) during the relevant time period and still appears to hold that position.  Based on evidence presented by the Prosecutor, pretrial Chamber II found that there are reasonable grounds to believe that Mr. Mudacumura is responsible for nine counts of war crimes, including murder, mutilation, attacks against civilians, cruel treatment, rape, torture, pillaging, destruction of property, and outrages against personal dignity. 

Mudacumura allegedly bears individual criminal responsibility under article 25(3)(b) of the Rome Statute for ordering the commission of these war crimes.

Acts specified in article 7(1) of the Statute qualify as crimes against humanity only if they are committed as part of a widespread or systemic attack directed against any civilian population with knowledge of the attack.  According to article 7(2) of the Statute, “attack directed against any civilian population” means a course of conduct involving the multiple commissions of acts referred to in article 7(1) against any civilian population pursuant to or in furtherance of a state or organizational policy to commit such an attack.  Thus, it must be demonstrated that a state or organizational policy existed under which a civilian population was the primary object of the attack, and, according to the Elements of Crimes, a “policy to commit such attack” requires that the state or organization “actively promote or encourage such an attack against the civilian population.”

The Chamber decided that there were no reasonable grounds to believe that crimes against humanity were committed because, although the FDLR was responsible for commission of multiple acts referred to in article 7(1), the Chamber could not reasonably conclude that the civilian population was the primary object of those acts. 

The Chamber found that the arrest of Mudacumura was necessary to ensure that:

1)      he will appear before the judges;

2)      he will not obstruct the Court proceedings; and

3)      he will not continue with the commission of a crime within ICC jurisdiction.

International Criminal Court Sentences Thomas Lubanga Dyilo

Trial Chamber I of the International Criminal Court sentenced Thomas Lubanga Dyilo to fourteen years in prison, less the time from his surrender to the ICC (on March 16, 2006) until today.  He was convicted of conscripting and enlisting children under the age of fifteen and using them to participate in hostilities in the Ituri region of the Democratic Republic of the Congo. 

The prosecution argued that the Chamber was required to take into consideration facts and circumstances beyond those in the charges, while the defense argued that the matters the Chamber could take into account were limited by the Decision on the Confirmation of Charges.  The Chamber concluded that evidence admitted for consideration at the sentencing stage could exceed the facts and circumstances set out in the confirmation decision, provided the defense had a reasonable opportunity to address that evidence.   

The prosecution asserted that aggravating factors should be based on a “balance of probabilities” test, while the defense argued that aggravating factors must be proved beyond a reasonable doubt.  The Chamber had to establish the standard of proof for the purpose of sentencing, since the Statute and Rules do not provide guidance.  The Chamber concluded that, since aggravating factors could have a significant effect on the length of Mr. Lubanga’s sentence, those factors must be established beyond a reasonable doubt. 

The Chamber concluded that the standard of proof for mitigating factors should be the “balance of probabilities” standard. 

In assessing the gravity of the crime, the Chamber noted that conscripting and enlisting children under age fifteen and using them to participate in hostilities are very serious crimes that affect the international community as a whole.

The Chamber stated that, in accordance with Rule 143, it considered the gravity of the crimes in the circumstances of this case, with regard to the extent of the damage caused, in particular “the harm caused to the victims and their families, the nature of the unlawful behavior and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person”.

With respect to the “circumstances of manner, time, and location” of the crimes, the Chamber had concluded in its Judgment that the evidence established beyond a reasonable doubt the recruitment of young people, including children under fifteen, was widespread, that a significant number of children were used as military guards and as escorts for senior commanders, and that children under fifteen were used in hostilities.

With respect to the degree of participation and intent of the convicted person, the Chamber did not conclude that Mr. Lubanga intended to conscript and enlist children under fifteen and use them in hostilities; rather, the Chamber concluded that he was aware that this would occur. 

In considering the individual circumstances of the convicted person, the Chamber noted that Mr. Lubanga is intelligent and well-educated and would have understood the seriousness of the crimes of which he was convicted.  The Chamber viewed the “marked level of awareness on his part” as a relevant factor for sentencing.

The Chamber found no aggravating factors in the case. 

The Chamber accepted as a mitigating factor Mr. Lubanga’s respectful attitude and cooperation with the Court throughout the proceedings, despite some onerous circumstances. 

ICC Trials Scheduled in Two Kenyan Cases

Trial Chamber V of the International Criminal Court issued scheduling orders setting the trial start dates for two cases.   The Prosecutor v. William Samoei Ruto and Joshua Arap Sang is scheduled to begin on April 10, 2013, and The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta is set to commence on April 11, 2013.

William Samoei Ruto is a former Minister of Higher Education, Science and Technology of the Republic of Kenya.  He is accused of being criminally responsible as an indirect co-perpetrator (pursuant to article 25(3)(a) of the Rome Statute) for the following crimes against humanity:  murder, deportation or forcible transfer of population, and persecution.

Joshua Arap Sang is Head of Operations at KASS FM in Nairobi, the Republic of Kenya.  The pre-trial chamber found no substantial grounds to believe he was an indirect co-perpetrator because his contribution to the crimes was not essential to their commission.  He is accused of having otherwise contributed (within the meaning of article 25(3)(d) of the Rome Statute) to the following crimes against humanity: murder, deportation or forcible transfer of population, and persecution.

Francis Kirimi Muthaura is a former head of the Public Service and Secretary to the Cabinet of the Republic of Kenya.  Uhuru Muigai Kenyatta is the Deputy Prime Minister and former Minister for Finance of the Republic of Kenya.  The two are accused of being indirect co-perpetrators of the following crimes against humanity: murder, deportation or forcible transfer, rape, persecution, and other inhumane acts.

Ratko Mladic Trial Resumes

First Witness Takes Stand

The trial of Ratko Mladic before the International Criminal Tribunal for the Former Yugoslavia resumed on Monday, and the Prosecution's first witness testified. 

General Mladic led the Bosnian Serb Army from May 12, 1992, until at least November 8, 1996, and is charged with war crimes, crimes against humanity, and genocide.

More on this story from BBC News*


*The owner of this blog takes no responsibility for the content of external sites.

ECHR Rules Lutsenko Arrest and Detention Unlawful

In a Chamber judgment in the case of Lutsenko v. Ukraine (no. 6942/11), the ECHR held that Articles 5 §§ 1-4 and Article 18 of the European Convention on Human Rights had been violated.  The Court held that Lutsenko’s arrest was arbitrary; no valid reasons were given for his detention; he was not informed of the reasons for his detention; and the lawfulness of his arrest and detention were not properly reviewed.

The applicant, Yuriy Vitaliyovych Lutsenko, is a prominent opposition politician in the Ukraine.  He is the leader of Narodna Samooborona, an opposition political party, and was Minister of the Interior in the government headed by Yulia Tymoshenko until January 2010.  Mr. Lutsenko is currently detained in Kyiv. 

In November 2010, the Ukrainian General Prosecutor’s Office initiated criminal proceedings against Mr. Lutsenko, alleging that Mr. Lutsenko had illegally arranged work-related benefits for his driver.  In December 2010, the General Prosecutor’s Office instigated another criminal case against Lutsenko for abuse of office, alleging that he had arranged for an apartment for his driver.  The cases were joined (“first case”), and Lutsenko was formally indicted.  The prosecutor allowed Lutsenko to study the case file, which he did on several occasions.  Then, on December 24, 2010, the General Prosecutor’s office instituted yet another set of criminal proceedings against Mr. Lutsenko for abuse of office, this time alleging that Lutsenko had unlawfully authorized search and seizure activities against an individual.

On December 26, 2010, Lutsenko was arrested by Security Service officers and the investigator of the General Prosecutor’s Office in connection with the criminal case initiated on December 24.  Mr. Lutsenko asserts that he was not given a copy of the charge sheet and was not informed of the reason for the arrest.

On the following day, Lutsenko and his attorney attended a court hearing, which they did not know about until twenty minutes prior to its commencement.  The subject of the hearing was the prosecutor’s request to keep Lutsenko in detention pending his trial in the first case.  Mr. Lutsenko alleged that he only discovered after the hearing began that it did not concern his arrest on the previous day.  The court granted the prosecutor’s request.  The court reasoned that Lutsenko and his attorney had studied the case file slowly and had given information about it to the media.  Additionally, the court found that Lutsenko had tried to prevent the investigation, was capable of influencing the investigation, and had not admitted guilt.  

Lutsenko’s lawyer lodged an unsuccessful appeal.  Lutsenko was convicted and sentenced to four years’ imprisonment and confiscation of property.  The judgment was upheld on appeal.  An appeal in cassation is pending.

Complaints and Procedure

Mr. Lutsenko complained that his arrest and detention were arbitrary and unlawful and that he had not been informed of the reasons for his arrest, in violation of Article 5 §§ 1(b)-(c), 2, and 3.  He also complained, under Article 6 §§ 1, 2, and 3(a)-(b) (right to a fair trial), that he was not informed in advance of the subject of the December 27 hearing, nor was he given time and facilities to prepare.  (The ECHR decided to consider the case under Article 5.) 

The application was lodged with the ECHR on January 21, 2011.  A Chamber hearing was held on April 17, 2012. 

Article 5 § 1 (right to liberty and security)

Arrest

The Court noted that Mr. Lutsenko was arrested within the framework of the second criminal case and taken to court on the next day.  However, the domestic court did not examine, and indeed had not intended to examine, the lawfulness of Mr. Lutsenko’s arrest.  The Court further noted that the prosecuting authorities took Mr. Lutsenko to court for the sole purpose of presenting their application to detain the applicant in connection with the first criminal case, and in fact opposed examination of the lawfulness of Lutsenko’s arrest.  In the Court’s view, this suggested that the purpose of Mr. Lutsenko’s arrest had not been to bring him before a competent legal authority within the same criminal case, but to ensure his availability for examination of the prosecuting authority’s application to detain the Mr. Lutsenko in connection with another set of criminal proceedings.

Furthermore, the Court observed that the arrest of Mr. Lutsenko had not been “necessary to prevent him from committing an offence or fleeing after having done so” for the purposes of Article 5 § 1.  Although one of the reasons given in the order for Mr. Lutsenko’s arrest was to prevent his continuing criminal activities, the authorities failed to explain in what way the applicant, being accused of abuse of office, could continue that type of activity almost a year after he had left the office of Minister of the Interior.  As to the risk of fleeing, Mr. Lutsenko was under an obligation not to abscond, which he had given to the same investigator who had arrested him and who did not appear to have any complaints regarding the applicant’s compliance with that obligation.

Based on the foregoing, the Court concluded that Mr. Lutsenko’s arrest had been for a purpose other than that indicated in Article 5 § 1 of the Convention and was therefore arbitrary and contrary to this provision.  Thus, there was a violation of Article 5 § 1 in this respect.

Article 5 § 1

Detention

The Court found that the domestic court’s decision ordering Mr. Lutsenko’s detention was based on questionable grounds.  With respect to the assertion that Mr. Lutsenko studied the case file slowly, the Court was not persuaded that deprivation of liberty was an adequate response in such a case, and the measure was applied after only ten days of studying the case file.  Furthermore, the applicant provided submissions to show that this ground for detention contradicted Ukrainian law, which provided that examination of the case file was a right, not an obligation, of the accused and that the time available to the accused to study the case file should not be limited.  However, the domestic courts did not examine these submissions and did not assess to what extent the manner in which the investigator provided the case file to Mr. Lutsenko complied with Ukrainian law.

With respect to the assertion that Mr. Lutsenko’s interviews with the media put pressure on a witness, neither the domestic authorities nor the Government explained how or in what way witnesses had been threatened by Mr. Lutsenko’s public statements.  Furthermore, they did not explain why detention could be considered an adequate response to such statements.  Since Lutsenko was a prominent political figure, he could be expected to express his opinion on the proceedings, and this would probably interest both his supporters and his opponents.  In the Court’s view, the fact that Mr. Lutsenko exercised his freedom of speech, which did not constitute any offence, did not justify depriving him of his liberty.

Advancing Mr. Lutsenko’s failure to testify and to admit his guilt as grounds for detention runs contrary to elements of a fair trial.  Specifically, it is contrary to the principals of freedom from self-incrimination and the presumption of innocence.  The Court viewed advancing such grounds to justify custodial measures as disturbing because the implication is that a person could be punished for relying on his basic rights to a fair trial. 

Finally, ordering detention without fixing a time limit contravened Article 5 § 1. 

Thus, Mr. Lutsenko’s detention was in violation of Article 5 § 1 of the Convention.

Article 5 § 2 (right to be informed of the reasons for one’s arrest)

Whether and to what extent Lutsenko was informed of the formal reasons for his arrest was in dispute.  However, the Government did not deny that, at the time of his arrest on December 26, 2010, Lutsenko had not been informed of the prosecutor’s application for his detention.  In fact, he was only informed of the application on December 27, more than 24 hours after his arrest.  Thus, the authorities failed to comply with their obligations under Article 5 § 2.  Accordingly, that provision was violated. 

Article 5 § 3 (right to be brought promptly before a judge)

When Mr. Lutsenko was brought before the court following his arrest, the court, despite Lutsenko’s complaint of unlawful arrest, did not examine the lawfulness of his detention.  It did not appear that the authorities had any intention of ensuring that the applicant was afforded the automatic judicial control of his detention required by Article 5 § 3.  Thus, Article 5 § 3 was violated.

As the Court previously observed, the applicant was not informed of the hearing’s subject in advance, and the domestic court did not examine the necessity of the deprivation of Lutsenko’s liberty in a satisfactory manner.  The Court further observed that the domestic court did not consider the possibility of using measures other than deprivation of liberty.  Mr. Lutsenko’s request to be given appropriate time to examine the materials brought forward by the prosecution and to prepare his defense was refused without justification.  It was for Mr. Lutsenko and his lawyer, the Court said, and not the authorities, to decide whether he needed to study the materials used to support his arrest.  “Such behaviour by the domestic authorities,” the Court said, “seriously affected the equality of arms between the parties.”

Thus, the proceedings concerning the change in preventive measures (i.e., a change to pre-trial detention) applied to Mr. Lutsenko did not comply with the requirements of Article 5 § 3.  Accordingly, there was also a violation of Article 5 § 3 in this respect.

Article 5 § 4 (right to challenge the lawfulness of one’s detention)

The Kyiv Court of Appeal rejected Mr. Lutsenko’s appeal without giving a proper reply to his arguments, which, in the Court’s opinion, appeared to be pertinent and worthy of examination.  Additionally, it did not give an adequate response to a request signed by members of parliament and supported by the Ombudsman for Mr. Lutsenko’s release on bail. 

The Court concluded that Mr. Lutsenko had not been given a proper judicial review of the lawfulness of his detention.  Accordingly, Article 5 § 4 of the Convention was violated.

Article 18 (limitation on use of restrictions on rights)

In his submissions to the ECHR, Mr. Lutsenko complained, without referring to any Convention provision, that the proceedings against him and his arrest were used by the authorities to exclude him from political life and from participation in the upcoming parliamentary elections.  The Court decided that this should be considered under Article 18. 

As the Court had already established, the grounds advanced by the authorities for the deprivation of Mr. Lutsenko’s liberty were incompatible with Article 5 § 1 and were against the spirit of the Convention.  The Court observed that the profile of the applicant, one of the opposition leaders who had spoken with the media, had attracted considerable public attention.  The Court considered that, being accused of abuse of office, Lutsenko had the right to reply to the accusation through the media.  The prosecuting authorities indicated Lutsenko’s communication with the media as one of the grounds for his arrest and accused him of distorting public opinion about crimes he committed, discrediting the prosecuting authorities, and influencing the upcoming trial to avoid liability. 

The Court stated in its opinion: “In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrates their attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence, which he had the right to do. In such circumstances, the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons.”

Thus, there was a violation of Article 18 in conjunction with Article 5.

Detained ICC Staff Members Released

The four International Criminal Court (ICC) staff members who were detained in Libya have been released and have departed from Tripoli.  The four released staff members traveled back to The Hague in the company of ICC President Judge Sang-Hyun Song.  The Italian government provided an airplane to transport the group.

The four staff members, Melinda Taylor, Helene Assaf, Esteban Peralta Losilla, and Alexander Khodakov, were detained in Zintan from June 7 until July 2, 2012.  The ICC says that the detained staff members were treated well during their detention and are in good condition.  The ICC President thanked the Zintan authorities for their cooperation and expressed gratitude to the Libyan government for their agreement to release the Court’s staff members. 

The staff members had traveled to Zintan to meet with Saif Al-Islam Gaddafi and help preserve his rights in the ICC case against him.  However, the four were detained after staff members on the mission were accused of jeopardizing Libya’s national security.  The Libyan authorities investigated the matter and presented the results of that investigation to the ICC on June 22, 2012.  The ICC has expressed an intention to investigate the matter in accordance with ICC procedures. 

The Gaddafi case was referred to the ICC by the UN Security Council, but Mr. Gaddafi has been held in Libya since his arrest late last year.  The ICC had previously requested that the Libyan Government surrender Gaddafi, but the Libyan Government has instituted domestic proceedings against Gaddafi.  Whether Gaddafi will be tried in Libya is yet to be determined.  However, the Libyan authorities have allowed Gaddafi to meet with ICC lawyers.