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Conselho Editorial

The presumption of innocence and the right to a fair trial in international law

Autor: Timothy Otty QC

Blackstone Chambers, London
November 2015.

This article addresses two substantive areas.

First the key case law of the European Court of Human Rights insofar as it applies to the presumption of innocence and the right to a fair trial more broadly, with a particular focus on the dangers associated with pre-trial detention and adverse pre-trial publicity.

Secondly how the principles work in practice as illustrated by an examination of how they have applied in two sets of proceedings in which I have been involved in different international and domestic jurisdictions in recent years: the case of the Kurdish leader Abdullah Ocalan against Turkey in the European Court of Human Rights;([1] ) and the Guantanamo Bay litigation before the United States Supreme Court.([2] )

Each case in its own way illustrates the particular challenges presented by high profile litigation. They also demonstrate how it is often in the most difficult and sensitive contexts that the Courts in any properly functioning democratic state have a particular obligation to act as guardians of the rule of law and fundamental rights.

As the cases referred to show that role is perhaps particularly acutely required where those on trial or the causes they represent are for one reason or another unpopular with the majority of the public and the press.

But before all of that, some history.

No English lawyer writing about fair trial rights in 2015 can do so without at least marking an event of momentous significance in English legal history, and in the development of the Rule of Law across the world.

2015 is the 800th anniversary of Magna Carta and it is perhaps worth pausing briefly to reflect on the fundamental principles established by that instrument so long ago.

With the exception of the Bible this short document has been cited in more parliamentary, congressional and constitutional debates than any other text.

It has been invoked by liberation movements across the world including those directed against the British Empire in India and the apartheid regime in South Africa.

And whatever its oddities and unsavoury aspects – amongst its less celebrated clauses it proposed forced repatriation of migrants and barred Jews from commercial enterprise – it contains two provisions in Clauses 29 and 40 of profound and lasting resonance.

Clause 29 provides that “No free man will be taken or imprisoned or [dispossessed] or outlawed or exiled or in any way ruined, nor shall we go or send against him, save by the lawful judgment of his peers and / or by the law of the land.

And Clause 40 states that “To no one shall we sell, to no one shall we deny or delay right of justice.”

In those two short sentences are the seeds of the rule of law, the right to a fair trial and the right to liberty and the protection of habeas corpus as we understand them today.

Both provisions remain in force in English law eight centuries on and there can be little doubt as to the profound influence they have had on constitutions and the protection of liberty across the globe, even if their authors could not have conceived of that at the time of their parochial dispute with King John.

As explained below Magna Carta has continuing and direct relevance today. It was one of the first authorities cited in the United States Supreme Court challenges to the Guantanamo Bay detentions and, together with the constitutional instruments which it has inspired, it represents a first line of defence to an overreaching State in times of national crisis of whatever nature.

Judge Goldstone of the South African Constitutional Court has recently summarised Magna Carta’s significance in the following way:

“The role of the rule of law in democracies can hardly be overstated. As we have seen, in leading democracies it has been violated from time to time, especially in times of actual or perceived threats to the nation. The need for vigilance by the legislature and civil society cannot be overstated.

No leader of a democratic state, and few even of oppressive societies, has publicly renounced the centrality of the principles of the rule of law. Their adherence to the doctrine is a deterrent to wider violations and is tribute to the endurance of the concept. For all people who support a democratic form of government there is much to celebrate in 2015 on Magna Carta’s eight hundredth anniversary”.([3] )

So much for the history lesson, and the origins of the rule of law, what of the more modern human instrument the European Convention of Human Rights?

The Convention was drafted in the aftermath of the Second World War and it now applies across the whole of the Council of Europe.

The Council includes 47 States and, remarkably, each one of the 820 million citizens and residents of those States have a right of individual petition to the European Court of Human Rights if they allege that their rights under the Convention have been violated.

Although an international body charged principally with the grant of declaratory relief the Court also has a very significant remedial jurisdiction.

For present purposes the focus is on just one of the many significant areas regulated by the Convention and subject to the jurisdiction of the Court, the right to a fair trial and, within that, to the presumption of innocence.

These rights are each guaranteed by Article 6 of the European Convention.

Article 6.1 provides that “In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

And Article 6.2 provides that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

There is nothing very surprising about either statement taken at such a high level of generality.

What is of perhaps greater significance is how, on a case by case basis these overarching guarantees have come to be interpreted.

This article will highlight five core principles relating to the presumption of innocence, and then say something about the related fair trial implications of pre-trial detention.

The presumption of innocence first and the five core principles.

First and most obviously the principle of the presumption of innocence requires that when carrying out their duties the members of a trial court should not have, and should not be perceived as having, any preconceived idea that the individual defendant has committed the offence charged.

So in the case of Lavents v Latvia([4] ) a violation of the Convention was found as a result of a judge, at a press conference held before the conclusion of a trial, commenting that she had not decided whether to convict or partially acquit a defendant. This was held to violate Article 6(2) as, unsurprisingly, was the Judge’s suggestion that the defendant should prove his innocence.

The case of Lavents also illustrates the dangers of both judicial officers and other high public officials being drawn into inappropriate comment as a result of the high profile of a case, the extent of damage caused to the wider public by the matters in issue and the consequent unpopularity of the defendant suspect.

Mr Lavents was the Chairman of Latvia’s largest bank. The Bank had collapsed causing severe damage to the national economy and the financial ruin of hundreds of thousands of people. Mr Lavents was accused of fraudulently seeking to create the impression of a prosperous and stable bank and he was, in consequence, not a popular man.

Mr Lavents’ bail terms were amended and relaxed after he suffered a heart attack and the Prime Minister and the Minister of Justice both made public statements expressing disagreement with this course of action. The next day the trial panel resigned citing “pressure from the Government and the public”.

The replacement presiding judge went on to make a series of statements of the kind described above, criticising the conduct of defence counsel and alluding to the outcome of the trial. She also expressed her surprise that the applicant was persisting in denying the charges against him and called on him to prove his innocence. Mr Lavents was convicted and sentenced to 9 years in prison. The European Court held that he had been unlawfully deprived of his liberty and that there had been a violation of the presumption of innocence.

In Lavents the focus of the Court in finding a violation of the Convention was on the trial judge’s comments but a violation could equally well have been founded on the observations of the Prime Minister and the Minister of Justice.

This analysis leads to the second key principle. The presumption of innocence is binding not only on the court before which a person is charged but on other state organs too.

The term “public official” is a wide and flexible term in this respect and extends to any well-known or public figure making statements about an accused person. So in Allenet de Ribemont v France([5] ) the Applicant was described by police officers as being the instigator of the crime under investigation and the Court rejected France’s argument that Article 6(2) applied only to the judicial authority in the context of criminal proceedings ending in a conviction.

Likewise in Konstas v Greece([6] ) the European Court found a violation of the Convention when, during pending appeals against fraud convictions, government ministers – including the Minister of Justice – made statements to parliament impugning the defendants as “crooks”. The Court held that these remarks offended the presumption of innocence and underlined the need for discretion and restraint, particularly by a Minister of Justice.

The third key principle is related to this. It is that where adverse comments appear in the press this may adversely affect the overall fairness of the trial under Article 6(1) as well as raising issues under Article 6(2) and leading to a conclusion that the entitlement to the presumption of innocence is violated regardless of the outcome of the proceedings. This will be particularly so where the press coverage could be regarded as inspired by, and thus under the responsibility of, the authorities.

The fourth principle is that an investigator carrying out a pre-trial investigation into alleged offences may also activate the application of Article 6(2). This has been shown by a case where an investigator was found to have conducted a blatantly partial and one-sided inquiry with preconceived opinions of those under investigation. Likewise unfairness on the part of the police responsible for an investigation may be sufficient to give rise to a violation of the right to a fair trial in Article 6(1). It is important here to emphasise that the right to a fair trial begins from the moment and individual is arrested.

The fifth principle is that while it may be possible for breaches of the presumption of innocence to be cured by a superior court in the event of acquittal or termination of the proceedings, in some cases even this will not be sufficient. On occasion a breach of the right can be so gross and cause such irremediable damage that it will distort the proceedings and render cure impossible. An individual or a business can have their reputation and livelihood irreparably damaged if press coverage of an unbalanced and prejudicial nature is permitted to proceed unchecked for a lengthy period.

Similar concerns arise as a result of excessive pre-trial detention and there are a series of well-established principles recognised across both international and comparative law.

First the importance of the liberty interest and the presumption of innocence are such that fundamental principle regards pre-trial detention as offensive to the rule of law.

Secondly such detention should accordingly only be permitted if strictly necessary and based upon legitimate aims related to the administration of justice; and the power to detain must accordingly be exercised in a manner which is proportionate and fair.

Thirdly that requirement for proportionality and fairness will place a particular burden on courts to facilitate expeditious access to court to allow challenge to any detention and then to scrutinise strictly the justifications advanced for detention by the State.

Fourthly it can never be a lawful and sufficient justification for detention merely that the offence under investigation is serious or that there is a desire to use such detention to place pressure on a suspect to provide co-operation to the investigating authorities whether through the provision of evidence or the entry into plea bargain agreements.

Fifthly the concerns flowing from pre-trial detention will be increased if it occurs in a context of unregulated and prejudicial press statements and commentary.

And sixthly and critically the burden of proof in justifying detention will always rest on the State. The operative presumption is always in favour of freedom and so if there is doubt as to the outcome release of the detainee must follow immediately.([7] )

Whether a detention is defended on the basis of a risk of interference with evidence, the risk of offending or the danger of absconding a common theme is present throughout. Specific and concrete evidence of facts justifying the contentions advanced by the State is required. It will not be enough for the State to defend a detention by reference to generality or stereotype and less severe alternatives to detention must always be fully and rigorously considered both by the detaining authorities and by the reviewing Court.

As to process and the need for special diligence in determining challenges under both the Convention and the ancient principles developed in common law and civil law jurisdictions in relation to the remedy of habeas corpus, time is of the essence. Liberty is prized as perhaps the most significant of all human rights – because unless it is guaranteed no other rights can be protected – and it is afforded commensurate protection.

Each element of these principles is illustrated by the two sets of proceedings referred to at the start of this article: the case of Abdullah Ocalan v Turkey and the Guantanamo Bay litigation. Each in their own way illustrates the importance of the principles just discussed, what they look like in action and the fundamental role of the domestic or international courts in seeking to uphold them.

Ocalan v Turkey.

In the early 1990s a major internal conflict raged in the South East of Turkey. Atrocities were reportedly committed on both sides by the Kurdish group the PKK led by Abdullah Ocalan from his base in Syria and by the Turkish military.

Caught in between were ordinary Kurdish villagers. Villages were destroyed, young men and women including defence lawyers, local politicians, journalists and simple farmers were arbitrarily detained and tortured. Others disappeared. A state of emergency was declared and those fortunate enough to be charged and to face a criminal process as opposed to extra-judicial sanction faced trial before military courts. Up to 30,000 people were estimated to have died in the conflict and such was the sensitivity of the issue of Kurdish rights that it was illegal even to speak the Kurdish language.

When, in 1999, the Kurdish leader Abdullah Ocalan was captured I was among the team of international lawyers asked to act on his behalf before the European Court of Human Rights. In the pre-9/11 world the facts of Ocalan’s case were extraordinary. He was forced to flee his hideout in Syria as a result of Turkish and American pressure on the Assad regime and after an odyssey taking him as far afield as Moscow, Corfu and Italy he sought refuge at the Greek Embassy in Nairobi.

He was located there by CIA satellite and then the subject of what would prove to be the first of many rendition operations which would follow in the years to come. He was denied any access to Court in Kenya, drugged, blindfolded and placed on a private jet back to Turkey.

Once there he was taken to the prison island of Imrali and within months he had been tried and sentenced to death. The political and media climate in Turkey was feverish and hysterical. Mobs danced on the streets brandishing nooses. Those domestic lawyers brave enough to act for Ocalan faced serious physical intimidation and the domestic Courts failed utterly to ensure that he had adequate defence facilities. No confidential visits with lawyers were permitted and all meetings that did occur were recorded. Access to Imrali island was severely restricted as was access to the case file and for much of the proceedings a military judge sat on the panel despite previous Strasbourg rulings showing such an arrangement to breach the right to a fair trial before an impartial tribunal as guaranteed by Article 6.

After a long battle before the European Court Mr Ocalan’s rights were substantially upheld. The death penalty imposed upon him was ruled unlawful, the trial he faced was held to be substantively unfair and the prison conditions he faced were held to breach the minimum standards prohibiting inhuman and degrading treatment.

For present purposes what is of relevance to note is the Article 6 issues that the lack of proper confidential access to counsel and the climate of media hysteria gave rise to and the particular challenge that the profile of the case presented for Turkey’s judicial authorities. That was a challenge they regrettably failed but it was one which the European Court met.

Finally then to perhaps the most egregious test for the rule of law in a democratic state in modern times: Guantanamo.

The response of the United States to the terrorist attacks of September 11 2001 was ungoverned by any principled adherence to the rule of law. The length of time which it took for the United States Courts to assert their role in correcting this course is a matter of as much deep regret as their eventual approach was a matter of profound relief and celebration. The fact that the Courts ultimately did rein in the Executive again illustrates the critical role they can and must play even where the gravest crisis has struck.

The collective sense of shock the events of 9/11 gave rise to was extraordinary. The level of entirely justified outrage they produced would, however, have the disastrous consequence that values painstakingly developed and safeguarded for centuries being jettisoned.

At Guantanamo and elsewhere hundreds of men were detained without any access to lawyers or to court and were subjected to appalling forms of abuse only revealed to the watching world when exemplified by the horrifying pictures from Abu Ghraib and what would become known as the Torture papers.

Administration lawyers had crafted extraordinary legal opinions justifying any detainee treatment short of that causing organ failure or death as lawful and seeking to create a legal black hole at the Guantanamo Bay detention centre in which detainees could be held.([8] )

Justice Stevens gave the leading judgment in Rasul v Bush the first of a trilogy of cases to reach the Supreme Court. Citing cases going back four centuries, and invoking Magna Carta, his judgment includes the following passage:

“Executive imprisonment has been considered oppressive and lawless since King John at Runnymede pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land”.

In the last of the three cases to reach the Supreme Court – Boumediene v Bush – Justice Kennedy was also at pains to stress the historic nature of the litigation.

In one particularly compelling passage he traced the debates held at the New York Convention which ratified the Constitution in 1781, and quoted the following words from Alexander Hamilton:

“The practice of arbitrary imprisonments has been in all ages the favourite and most formidable instrument of tyranny..... To bereave a man of life ... or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government”.

In a short concurring judgment Justice Souter lamented the failure of the Courts to control the Executive’s conduct prior to that point and the critical nature of speed in the grant of habeas relief.

He had this to say:

“After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction, but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value, both to the prisoners and to the Nation”.

It is a bitter irony for a country with such a proud history as America that Guantanamo is likely to always be a reminder of how badly things can go wrong if the fundamental principles animating the rule of law are not respected in times of crisis, and if the Courts fail or delay in the discharge of their core obligation as the guardians of fundamental rights.

The common theme of these cases, and others like them, lies in the danger of what has been called legal exceptionalism. That exceptional times require exceptional measures, and that ordinary civil rights must be set aside.

In Turkey it was said that Abdullah Ocalan was “public enemy number one” and so all necessary measures had to be taken against him. In Guantanamo it was said that the War on Terror meant centuries old principles should be dispensed with.

In each of these cases, however, a constitutional instrument or international treaty obligation would ultimately prevail and provide the right principled course forward: in relation to Ocalan it was the European Convention and in relation to Guantanamo it was the US Constitution.

The core message in each context was that however difficult the terrain certain fundamental principles cannot be breached.

As Justice Barak of the Supreme Court of Israel has said it is the destiny of democracy to fight with one hand tied behind its back but it will nevertheless always have the upper hand.([9] )

As to the dangers of exceptionalism more broadly Justice Albie Sachs of the South African Constitutional Court has put the matter eloquently.

Justice Sachs was an ANC exile when himself the subject of an attempted assassination by South African security forces. Following the transition to democracy he became one of the judges of the new Constitutional Court. In a lecture he gave in 2006([10] ) he spoke of the ever expanding nature of detention laws in apartheid era South Africa and said the following:

“When 90 days wasn’t enough, they needed 180 days [and then said] ‘but that’s not enough we need indefinite detention because they always exploit the fact that they know they can come out after a certain period’… That’s the problem with the exceptional. The exceptional becomes the normal and then it becomes too little and then you have to make it more exceptional and more exceptional and more exceptional. And the dagger aimed at the enemy in the end is plunged inwards, perforating the very character of your own society and rupturing precisely what it is supposed to defend”.

That it seems to me is the constant challenge to democracies facing situations of crisis or controversy. To step back from the fray, and the heat, and the noise and to have confidence in the fundamental notions of fairness underpinning any proper constitutional framework.

And central to that exercise is what represents the engine of the rule of law. The imperative need for a strong and independent legal profession capable of providing every citizen with their fundamental right of access to counsel and so of access to justice.

Timothy Otty QC
Queens Counsel and member of the English Bar practising from London.
Ex-member of the Foreign Secretary’s Human Rights Advisory Group.
Visiting fellow or lecturer at Oxford University, the London School of Economics and Kings College.