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McCanns and the ECHR

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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by sar 22.03.21 23:43

@PeterMac wrote:AN UPDATE.
In their case presented to the ECHR in 2017 the McCanns (& Healy) sought to rely on two main legal precedents.
Axel Springer v Germany, and Larrañaga Arando and others v. Spain.
The latter case had not been decided at that point, (so in legal terms is was NOT a precedent).


And so it has turned out.  Larrañaga Arando et autres c. Espagne was declared Inadmissible in Jun 2019.


The facts in Larrañaga are beyond belief.   Relatives of ETA terrorists were seeking compensation for their deaths at the hands of other terrorist groups. Not surprisingly it was chucked out, but not before lawyers had no doubt added to their own pension funds.


The facts in Axel Springer are curiously relevant to the McCann's case - but not in the direction they would want us to believe.  Axel Springer, a German publishing company was sued for breach of an injunction preventing publication of the details of an arrest at the Munich Beer festival for possession of cocaine of a TV star.  They paid the €1000, and then a further €5000 when they continued to publish the story.


The ECHR held; [forgive me for pasting the lot, because it is important]
firstly, that the published articles concerned the arrest and conviction of an actor, that is public judicial facts that could be considered to present a degree of general interest. Second, the actor was sufficiently well known to qualify as a public figure and, even though the nature of the offence was such that it would probably not have been reported on had it been committed by an ordinary individual, the fact that the actor had been arrested in public and had actively sought the limelight by revealing details about his private life in a number of interviews meant that his legitimate expectation that his private life would be effectively protected was reduced. As regards the third criterion – how the information was obtained and whether it was reliable – the first article about the actor’s arrest had a sufficient factual basis as it was based on information provided by the public prosecutor’s office and the truth of the information related in both articles was not in dispute between the parties. The applicant company had not acted in bad faith: not only had it received confirmation of the information from the prosecuting authorities, there was nothing to suggest that it had not undertaken a balancing exercise between its interest in publishing and the actor’s right to respect for his private life before concluding, in the light of all the circumstances, that it did not have sufficiently strong grounds for believing it should preserve the actor’s anonymity. As to the content, form and consequences of the publications, the articles had not revealed details about the actor’s private life, but had mainly concerned the circumstances of his arrest and the outcome of the criminal proceedings. There had been no disparaging comments or unsubstantiated allegations. The applicant company had not challenged a court injunction prohibiting it from publishing photographs and it had not been shown that the publication of the articles had resulted in serious consequences for the actor. As regards the final criterion, while the sanctions imposed on the applicant company were lenient, they had nevertheless been capable of having a chilling effect and were not justified in the light of the factors referred to above. Accordingly, the restrictions imposed on the company had not been reasonably proportionate to the legitimate aim of protecting the actor’s private life.

Article 41: EUR 17,734.28 in respect of pecuniary damage, corresponding to penalties and costs incurred in the domestic proceedings less the two penalty payments of EUR 5,000.


In my humble opinion there are some strong parallels there with McCann & Healy v Amaral which we recall the McCanns LOST in the Appeal and then the Supreme Court. The same court which said at the time it had considered precedents from the ECHR.


Even more odd are the other two cases apparently relied on by the McCanns.
In von Hannover there was found to be NO violation of s8. when details of Prince Rainier of Monaco's final illness were published
In Bédat v Switzerland the journalist was penalised for publishing details of an incident under active investigation.  The ECHR held: that there was NO violation of his rights under s.10 because the penalty (suspended sentence replaced by fine) had been " imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life."


In other words, as the world knows, you are not allowed to publish details of an ACTIVE case.
How this affects the McCanns whose case has been shelved since 2008 is not entirely clear.


Is this their second Wisconsin v Zapata moment ? 


REFS:
https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22MCCANN%20ET%20HEALY%20c.%20PORTUGAL\%22%22],%22itemid%22:[%22001-207898%22]}

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-12570%22]}


https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-106%22]}
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-98%22]}

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-11094%22]}
this is interesting...


"had actively sought the limelight by revealing details about his private life in a number of interviews meant that his legitimate expectation that his private life would be effectively protected was reduced."
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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by PeterMac 23.03.21 6:43

... which is why I posted in such detail.

The State of Portugal can rely on exactly those precedents in its response.
Dr Amaral's book is covered by von Hannover
The shelving of the case means that Bédat v Switzerland, and Allen v UK are applicable
The McCann's relentless publicity drive, book, TV interviews and Press articles from 'Friend of the family' and spokes-people means Axel Springer is the authority.

It is a very strange list of cases their lawyer has sought to rely on.

(Larrañaga is not a legal precedent, in much the same way that Winconsin v Zapata was not)


The McCanns are both moderately educated people capable of understand how legal precedent works.
Did they not discuss all this before committing to this self-destructive route ?
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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by PeterMac 30.03.21 9:04

Looking back to the Supreme court judgment  (https://www.mccannpjfiles.co.uk/Supreme_Court_31_01_2017.htm)  we find that they quoted several ECHR precedents, and made it clear they were relying on them as guidance.

Smolarz v Poland (17446/07) is mostly concerned with the legal time lag between decisions in the Polish courts.
Thoma v Luxembourg (38432/97 (2001)) related to a journalist who quoted something written by another journalist.  The fact that the original statement was defamatory, and that Thoma did not specifically distance himself from it led to his being made to pay € 1 to each of the Plaintiffs.    The ECHR allowed his appeal as fair reporting.

In Palomo Sanchez et al. v Spain. (ECH 1319, 2011) a Trade Union newspaper published a cartoon and comments about named members who had testified against the Union in a dispute with management. The cartoon was grossly disgusting, vulgar and coarse. The journalists were sacked.
Held:  They lost. There is a clear distinction between criticism and insult. The latter justifies sanctions

And then they used Allen v UK.  I quote the relevant bit in full, so that everyone can all understand.


In the Allen vs UK case, the ECHR emphasised the importance of the presumption after the acquittal or dismissal of the criminal investigation, explaining that this principle prevents suspects or defendants in such cases are treated as if they were in fact responsible for the criminal offences of which they were accused and stressing that without this second level of protection – the level of full respect for acquittal or archiving – the presumption of innocence would remain illusory or merely ideal.
Likewise, the presumption of innocence requires that the absence of guilt that emanates from it is respected, after the acquittal or dismissal, in all legal proceedings of any kind and by any authority that comes into contact with these facts [idem Allen vs United Kingdom].


In this case, the claimants Kate and Gerald McCann never ceased to benefit from this presumption of innocence and from the behaviour imperative that it places on national judicial and justice authorities and on all the civil servants and agents.
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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by Doug D 30.03.21 11:46

This is the ECHR stuff on friendly settlements (link thanks to Textusa).
Looks like it's almost a standard procedure at this stage.


[size=32]Friendly Settlements[/size]

The friendly settlement procedure in the European Court provides the respondent government and the applicant with an opportunity to resolve a dispute. It is an agreement between the parties which is very much like an out of court settlement in national legislation and affords them an opportunity to resolve an issue, usually on payment to the applicant by the respondent Contracting Party of a specified sum of money or on the basis of an undertaking by the respondent Contracting Party to provide appropriate resolution of the issue, or both.

The legal basis for friendly settlements is found in Article 39 of the European Convention on Human Rights, paragraph 1 of which stipulates:

“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.”

At the same time as a case is communicated to the respondent government, the European Court will write to the parties to inform them that the Court is at the parties’ disposal for the purpose of securing a friendly settlement and inviting proposals from either party (Rule 62¹§1 of the Rules of Court). The Court will usually set a time limit for any proposals. However, the time limit may be extended (the Court is keen for cases to be resolved and so is likely to grant more time if a settlement is a real possibility).

It is common for the European Court actively to become involved in facilitating settlement in a proactive way, and it may consider striking out an application if an applicant is considered “unreasonably” to have refused friendly settlement proposals. For example, when financial negotiations run into difficulties, the Court may be prepared to suggest what would represent a reasonable sum for settlement of the case. Rule 62 of the Rules of Court permits the Court to take any steps that appear necessary to facilitate settlement, which may include arranging a meeting between the parties (see, e.g., Koksal v. Netherlands, application no. 31725/96, 20 March 2001). The Court’s practice as regards applications concerning “well-established case-law” is now to be rather more proactive: in order to encourage the resolution of such cases, the Court may of its own motion send settlement proposals to the parties.

Friendly settlement negotiations are confidential and are without prejudice to the parties’ arguments in the contentious proceedings (Article 39§2 of the Convention and Rule 62¹§2 of the Rules of Court). The details of the negotiations cannot be referred to or relied on the substantive proceedings, or in any other contentious proceedings. Breaching this confidentiality could lead to an application being declared inadmissible on grounds of abuse of the rights of application.(See, e.g. Handrabova and others v. Czech Republic, application no. 42165/02 and 466/03, dec. 29 September 2007; Popov v. Moldova (No. 1), application no. 74153/01, 18 January 2005; Mirolubovs v. Latvia, application no. 798/05, 15 September 2009).

The European Court will be willing to facilitate settlement of cases as this will mean a reduction in the Court’s substantial backlog of cases. If terms are agreed, both parties should write to the Court to confirm the terms of the settlement agreement and request that the case be struck out of the Court’s list of cases. The Court will publish a decision or judgment (if concluded post-admissibility) recording the facts of the case and terms agreed between the parties and formally striking the case out of the list (Articles 39§3). This decision will be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision (Articles 39§4). Settlements therefore have a higher “visibility” than was previously the case prior to the implementation of Protocol No. 11.

In accordance with Article 37§1 of the Convention, in striking out applications, the European Court will continue the examination of the case “if respect for human rights as defined in the Convention and protocols thereto so requires”. The factors affecting this decision will include the importance of the issue raised by the case, the terms of settlement proposed by the parties and whether the issue has previously been considered by the Court. Thus, a friendly settlement that had been agreed between the parties in Ukrainian Media Group v. Ukraine was rejected by the Court because of the gravity of the alleged interferences with the applicant company’s right to freedom of expression (Ukrainian Media Group v. Ukraine, application no. 72713/01, 29 March 2005).

The European Court may also decline to confirm a friendly settlement agreement if, for example, it is not satisfied that the applicant has unambiguously consented to its terms (see, e.g. Paladi v. Moldova, application no. 39806/05, 10 July 2007, §§51-53, the case was subsequently referred to the Grand Chamber).

Article 37§2 enables the European Court to restore the case to its list if the terms of friendly settlement are not subsequently complied with (see, e.g. Katic v. Serbia, application no. 13920/04, dec. 7 July 2009).

Thus, the European Court always encourages parties to negotiate a friendly settlement. If no agreement is reached the Court will proceed to examine the merits of the application.

https://www.echr.am/en/functions/representation/friendly-settlements.html
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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by PeterMac 30.03.21 12:07

Thank for that.  An "Out of court settlement" by any other name, well known in English Law.

It is not immediately clear what the McCanns would accept, since 'losing' the case will mean the full costs of the entire legal farrago so far will fall on them, and it would be extraordinary if Portugal as a State decided to waive those costs in some way.
The bottom line is that they are out to destroy Dr Amaral, and giving up at this stage will leave them with nothing to fall back on.
I doubt very much whether Portugal would be interested in negotiating with two Brits who have attempted to trash their Police, their Prosecution services, the Supreme court, and their constitution.

and we also recall that they tried to get the Supreme Court to "reconsider" its own judgment, 
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McCanns and the ECHR - Page 4 Empty Is something happening?

Post by Jill Havern 01.04.21 8:43

McCanns and the ECHR - Page 4 Echr210

Thanks to PeterMac for the screenshot  thumbsup

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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by PeterMac 02.04.21 6:13

It's back to normal today, so who knows.
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McCanns and the ECHR - Page 4 Empty Re: McCanns and the ECHR

Post by Doug D 23.04.21 8:16

Textusa has posted that 12 weeks is now up, but I think it is the 16 weeks that ends on 6th May we should be looking at as the request to Portugal was under Rule 54 § 2 (b):

Information to applicants: 
Proceedings after communication of an application (single phase) 

1. Notification of an application to the respondent Government: Following a preliminary examination of the admissibility of your application, the Court has decided, under Rule 54 § 2 (b) of its Rules, that notice of the application should be given to the Government and that it should be invited to submit written observations on the admissibility and merits of the whole case or of one or more of the complaints you have raised. If a partial decision has been adopted, declaring the remainder of the application inadmissible, the examination of this/these complaint(s) is thereby terminated and you should not file any further submissions on this part of the application. 

2. Joint examination of admissibility and merits: As a rule, applications lend themselves to having their admissibility and merits examined at the same time, in accordance with Article 29 § 1 of the Convention and Rule 54A. In such cases, where the Court considers these applications admissible and ready for determination on the merits, it may immediately adopt a judgment under Rule 54A § 2. 

3. Exchange of observations on the admissibility and merits and just satisfaction claims:
The respondent Government are normally requested to submit their observations within sixteen weeks. Once these observations have been received, they will be sent to you for you to submit written observations in reply, usually together with any claim for just satisfaction under Article 41, within a time-limit of six weeks. In cases where the Government have been authorised to submit their observations in their national language (Rule 34 § 4 (a)), they must later provide the Court with a translation into English or French, within a time-limit of four weeks. These time-limits will not normally be extended. 

Should you not wish to avail yourself of the opportunity to reply to the Government’s observations and to submit compensation claims under Article 41, you must inform the Court of this within the same time-limit. Failure to do so may lead the Court to considering that you have lost interest in pursuing your application and to striking your case out of its list of cases (Article 37 § 1 (a) of the Convention). 

With regard to just-satisfaction claims, your particular attention is drawn to Rule 60: failure to submit quantified claims within the time allowed, together with the required supporting documents, will result in the Court either making no award of just satisfaction, or else rejecting the claim in part. This applies even if an applicant has indicated at an earlier stage of the proceedings that he or she seeks just satisfaction. …………………………
 
https://www.echr.coe.int/Documents/Applicants_communication_ENG.pdf
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