J.R. and Others v. Greece: A dangerous precedent for human rights lawyers in Europe
On 25 January 2018 the ECtHR issued its Judgement in the case J.R. and Others v. Greece.
Despite other aspects of criticism one may have about this Judgement (and these are many), the Human Rights Defenders Support Network alerts on what is clearly a dangerous precedent for human rights lawyers in Europe, regarding the art.34 ECHR complaint (par.148-153 of the Judgement) "added" by the German Lawyer representing the applicants at the Observations stage.
Some months after the ECHR application was lodged, the 1st applicant was called to the police station of hios, where he was made to answer questions under oath about the EHR application he had lodged and about his contacts and his correspondence with his lawyer. He claimed that his summoning and the interrogation he was subjected to had an intimidating effect on him and that these events cannot be interpreted differently than an attempt to dissuade him from continuing with his application.
The Government declared that in establishing the facts of the EHR case, it estimated as necessary to verify the duration of the applicants' stay (sic) in Vial and where they stayed after leaing Vial, that allegedly being the only reason why the 1st applicant was called to have "a conversation" with a policeman, in the presence of an interpreter. The reiterated that the Greek authorities facilitate the exercise of art.34 ECHR right to any person in their territory and, in particularr, by orregular migrants finding themselves in detention and "reception" centres.
The Court underlines that in pronciple it is not appropriate that the authorities of a respondent State enter in direct contact with an applicant on the subject of his/her ECHR application, citing extensive previous caselaw.
However, it went further, noting the following: "In parallel, the Court reaffirms that not any enquiry from the part of the authorities on the subject of an application pending before should be considered as a "measure of intimidation", asking for specific proof that attests the existence of pressure or acts of intimidation in order to conclude that the applicant has suffer hindrance in the exercise of his right to an individual ECHR application (as if the admittance by the Greek Government of an interrogation of an undocumented alien by the Greek Police, on his application, on his relationship with the lawyer and on the... content of lawyer-client communications would not be enough to intimidate such an applicant!).
Regarding the circumstances, the Court took note that the applicant was interrogated about his lawyer because the latter "was not present in the island of Chios" and "was German" (par.152), and because the Government "simply wanted to know their whereabouts after the application was lodged, to draft their Observations" (sic). (as if this requires an interrogation and sworn testimony!).
With this short promenade in jurisprudence and facts, the Court concluded (par153) that:
"In the Court's view, nothing indicates that the meeting in question was destined to push the applicants to repeal or modify their application or to obstruct them in any other manner in the exercise of their individual right, and neither did it have such a result. The authorities of the respondent State cannot be considered as having obstructed the applicants' exercise of their right to individual application. Consequently, the Court estimates that the respondent State did not violate the obligations incumbent on it by art.34 of the Convention".
In the light of the above, the Human Rights Defenders Support Network regrets to perceive that the Judgement in the case J.R. and Others v. Greece, as a precedent, exposes ECHR applicants and their defenders - lawyers to further victimization, and thus undermines the whole mechanism of protection under the Convention. It also vividly surfaces questions:
Despite other aspects of criticism one may have about this Judgement (and these are many), the Human Rights Defenders Support Network alerts on what is clearly a dangerous precedent for human rights lawyers in Europe, regarding the art.34 ECHR complaint (par.148-153 of the Judgement) "added" by the German Lawyer representing the applicants at the Observations stage.
Some months after the ECHR application was lodged, the 1st applicant was called to the police station of hios, where he was made to answer questions under oath about the EHR application he had lodged and about his contacts and his correspondence with his lawyer. He claimed that his summoning and the interrogation he was subjected to had an intimidating effect on him and that these events cannot be interpreted differently than an attempt to dissuade him from continuing with his application.
The Government declared that in establishing the facts of the EHR case, it estimated as necessary to verify the duration of the applicants' stay (sic) in Vial and where they stayed after leaing Vial, that allegedly being the only reason why the 1st applicant was called to have "a conversation" with a policeman, in the presence of an interpreter. The reiterated that the Greek authorities facilitate the exercise of art.34 ECHR right to any person in their territory and, in particularr, by orregular migrants finding themselves in detention and "reception" centres.
The Court underlines that in pronciple it is not appropriate that the authorities of a respondent State enter in direct contact with an applicant on the subject of his/her ECHR application, citing extensive previous caselaw.
However, it went further, noting the following: "In parallel, the Court reaffirms that not any enquiry from the part of the authorities on the subject of an application pending before should be considered as a "measure of intimidation", asking for specific proof that attests the existence of pressure or acts of intimidation in order to conclude that the applicant has suffer hindrance in the exercise of his right to an individual ECHR application (as if the admittance by the Greek Government of an interrogation of an undocumented alien by the Greek Police, on his application, on his relationship with the lawyer and on the... content of lawyer-client communications would not be enough to intimidate such an applicant!).
Regarding the circumstances, the Court took note that the applicant was interrogated about his lawyer because the latter "was not present in the island of Chios" and "was German" (par.152), and because the Government "simply wanted to know their whereabouts after the application was lodged, to draft their Observations" (sic). (as if this requires an interrogation and sworn testimony!).
With this short promenade in jurisprudence and facts, the Court concluded (par153) that:
"In the Court's view, nothing indicates that the meeting in question was destined to push the applicants to repeal or modify their application or to obstruct them in any other manner in the exercise of their individual right, and neither did it have such a result. The authorities of the respondent State cannot be considered as having obstructed the applicants' exercise of their right to individual application. Consequently, the Court estimates that the respondent State did not violate the obligations incumbent on it by art.34 of the Convention".
In the light of the above, the Human Rights Defenders Support Network regrets to perceive that the Judgement in the case J.R. and Others v. Greece, as a precedent, exposes ECHR applicants and their defenders - lawyers to further victimization, and thus undermines the whole mechanism of protection under the Convention. It also vividly surfaces questions:
Are persons who apply to the European Court of Human Rights and their Lawyers SAFE by doing so? Or would they be allowed to suffer further victimization (harassment, intimidation or other hindrance) because of applying?
The ECtHR told us today that it is "ok" in the light of art.34 ECHR that applicants are interrogated by the police on the content of their relationship and correspondence with their lawyer - ECHR representative, disregarding not only the CoE's guarantees for Human Rights Defenders, the UN Declaration on the Protection of Human Rights Defenders and the UN Basic Principles n the Role of Lawyers, but also the very "European Agreement relating to persons participating in proceedings of the European Court of Human Rights"
We should not be surprised if and/or when such a decision becomes final, we see even more interrogations of those who applied to the Court seeking redress taking place, and and an acute breach of the lawyer-client (sworn testimony on the relationship between the client and the lawyer and the content of their communications!!!) contact being "legitimized".
The responsibility about the subsequent gap in protection, regarding incidents of retaliation and harassment towards persons who dare to exercise their rights to seek supranational human rights protection and their defenders is not only clear but, unfortunately "fueled" by today's decision.
The ECtHR must alter such jurisprudence, bearing in mind that the relationship and correspondence between client and lawyer cannot possibly be the object of police interrogations, unless the Court waives the relevant immunity and provides good reasons for it, in an individual case.
The Human Rights Defenders Support Network also reminds that, according to the "European Agreement relating to persons participating in proceedings of the European Court of Human Rights" (which the ECtHR has uploaded on its site but does not seem to apply in today's decision in the J.R. case):
"Article 1
1The persons to whom this Agreement applies are:
a. any persons taking part in proceedings instituted before the Court as parties, their representatives and advisers;
Article 2
1. The persons referred to in paragraph 1 of Article 1 of this Agreement shall have immunity from legal process in respect of oral or written statements made, or documents or other evidence submitted by them before or to the Court.
Article 5
1. Immunities and facilities are accorded to the persons referred to in paragraph 1 of Article 1 of this Agreement solely in order to ensure for them the freedom of speech and the independence necessary for the discharge of their functions, tasks or duties, or the exercise of their rights in relation to the Court.
2a. The Court shall alone be competent to waive, in whole or in part, the immunity provided for in paragraph 1 of Article 2 of this Agreement; it has not only the right but the duty to waive immunity in any case where, in its opinion, such immunity would impede the course of justice and waiver in whole or in part would not prejudice the purpose defined in paragraph 1 of this article.
b. The immunity may be waived by the Court, either ex officio or at the request of any Contracting Party or of any person concerned.
c. Decisions waiving immunity or refusing the waiver shall be accompanied by a statement of reasons.
Article 6
Nothing in this Agreement shall be construed as limiting or derogating from any of the obligations assumed by the Contracting Parties under the Convention or its protocols."
The Human Rights Defenders Support Network will remain vigilant on risks posed by practices and jurisprudence on a European level and will litigate cases of HRD who find themselves in danger or at risk in Greek jurisdiction.
Breaching the rights of the victim's defender(s) is but further, secondary victimization of the victim, and an open wound to the Rule of Law and Democratic societies.
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