European Court of Human Rights and lawyers

I have two important items to report under this heading.

First, I hope you will forgive some boasting when I declare that my own organisation, the Council of Bars and Law Societies of Europe (CCBE), has just published a very useful document, called The European Court Of Human Rights - Questions & Answers For Lawyers. If the response on Twitter is anything to go by, it satisfies a gap in information. (And the boasting is organisational, not personal, since I had nothing to do with its drafting.)

The guide contains information and practical advice in three distinct areas: (1) proceedings before national courts prior to application to the ECtHR; (2) proceedings before the court itself; and (3) actions during the enforcement of the court’s judgments.

In the foreword to the guide, written by the president of the ECtHR, Dean Spielmann, he says that ‘although the guide is primarily intended for lawyers, it is not to be forgotten that it concerns the procedure before a human rights court and that, by helping lawyers to navigate the sometimes technical waters of proceedings before the court, the guide ultimately benefits the interests of their clients: the citizens of Europe.’

He adds that ‘the release of the guide coincides with the entry into force of the significantly amended Rule 47 of the Rules of Court, which introduces stricter conditions for applying to the court. Thus, the guide may well be one the first instruments dealing with the ins and outs of how to apply to the court in accordance with the new rules’.

The booklet proceeds by way of a series of questions and answers. To give you an idea, here is a small sample of the questions. At what stage during proceedings before national courts should human rights violations be pleaded? Is it mandatory to appeal to the highest court before making an application to the ECtHR? Is it important to exhaust all available domestic appeal procedures?

What is the time limit for lodging an application with the court? What should be included in the new application form? What documents should be attached to an application? How can interim measures be obtained? And of special interest to the UK is one of the questions in the enforcement section: Can the ECtHR invalidate laws or decisions of national courts that violate the European Convention on Human Rights?

Second, there was recently a very important decision in the ECtHR regarding the lawyer-client relationship. It arose out of the case of Öcalan v Turkey (2) (18 March 2014) in which the court had to deal, amongst several other issues, with complaints concerning three areas: Mr Öcalan’s right of access to a lawyer; the restrictions imposed on the visits of his lawyers to prison; and communications with his lawyers. (There were other substantial issues in the case apart from this. Mr Öcalan has previously been identified by the Turkish courts as the founder of the PKK, an illegal organisation.)

For the lawyer part, some of the facts were as follows. Owing to weather conditions which prevented boats from ensuring the usual shuttle service between the island where Mr Öcalan was imprisoned and the mainland, requests for visits from his lawyers were regularly rejected. Most of the interviews with his lawyers took place in the presence of an official and were recorded.

The authorities considered on several occasions that Mr Öcalan had taken advantage of such visits to transmit instructions to the group of which he was leader. A number of Mr Öcalan’s lawyers were prohibited from representing him, and their offices were searched.

Strikingly, the court, when examining the fact that Mr Öcalan was not authorised to have confidential meetings with his lawyers, stated that the authorities were entitled to impose ‘legitimate restrictions’ on prisoners convicted of terrorist activities insofar as they were strictly necessary to protect society against violence.

The judgment is not final, in the sense that within three months of its delivery, any party may request that the case be referred to the Grand Chamber of the court.

First, lawyers as representatives before the ECtHR, and, second, lawyers as representatives of defendants that governments and citizens fear and hate… I hope that the CCBE guide to the court will provide some help in the democratic process.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs