Wednesday, 9 March 2011

Mann v Portugal and the United Kingdom [2011] ECHR 337 (1 February 2011): European Court of Human Wrongs

I mentioned before the European Court decision in Hirst, which has caused controversy and which has already been distinguished by an English judge.  If that decision was controversial, this one is shocking, disgraceful and a positive affront to justice.

Portugal hosted the European football championships in 2004.  Paranoid about hooliganism, it brought in a system of fast-track trials to deal with violence.  One such fast track trial was that of Garry Mann.  He was put on trial for hooliganism, convicted and imprisoned for 2 years, suspended while his appeal went forward; in the meantime, on the advice of the British consul, who said he wouldn't be sent down back home, he returned to England.  Five years later the Portuguese sought to extradite him to serve his sentence; his lawyers had forgotten to appeal, and the Portuguese learned Mann had not been serving his sentence in Britain.

Serves him right?  A convicted hooligan?  Well, not when you consider the trial.  Conducted in Portuguese, there were two interpreters between fourteen defendants; one of the interpreters was a hairdresser who spoke a smattering of English.  Mann had five minutes to prepare for his trial with a lawyer he didn’t know.  He had witnesses who could have proved his innocence, but in those five minutes they could not be found.  CCTV footage would also have shown he was not involved, but again five minutes was insufficient time to dig it out.

No wonder Moses J criticized the trial, and the extradition proceedings, in the most vehement terms.  But given the European Arrest Warrant and the European fiction that such a trial in Portugal was just as valid and binding as a proper trial with proper procedures, he could not do anything to prevent the extradition.  Mann, a patently innocent man, was returned to Portugal to serve his sentence.

Still, he would be able to bring a claim against the Portuguese government for breach of his human rights, wouldn’t he?  Pretty blatantly unfair trial.  Er, no.  In a decision that has just been published, the European Court of Human Rights rejected his complaint as inadmissible.  Because it was too late.  He should have brought it within 6 months of his trial in Portugal, not 6 months of his extradition.

6 months of his trial.  A trial where he didn’t know what was going on; where he left his appeal in the hands of his lawyer (who comprehensively naused it up by cocking up the paperwork).  And following which the British consul told him to forget about it as he could serve the sentence in England – where it would be commuted to nothing.

What’s more, the European Court held that there was insufficient evidence that the trial was unfair.  Insufficient evidence?  One English judge stated that “in circumstances that were so unfair as to be incompatible with the applicants’ right to a fair trial”.  Another stated that it was an embarrassment and a serious injustice.  A police observer described it as a farce.  All findings which the Portuguese authorities did not challenge.  Yet the European Court did not consider this sufficient evidence.  In part because the judges couldn’t agree on just how unfair the proceedings were…

So now we know why the European Court of Human Rights wants to give prisoners the vote.  It is quite happy to see the innocent sent there.

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