Thursday 3 July 2008

Statement by Professor Hans Köchler

Lockerbie Appeal:
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights

Statement by Dr. Hans Köchler

Vienna, 3 July 2008
P/RE/20161c

According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).

On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.

Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).

In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.

A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.

Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.

The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.

Dr Hans Köchler

3 comments:

  1. Anonymous04 July, 2008

    Seems Megrahi may have a tough time moving forward with the European Court of Human Rights per Kochler points.

    European Court of Human Rights Case Law states the following -

    "The entitlement to disclosure of relevant evidence is not, [however] an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. Nonetheless, only such measures restricting the rights of the defence which are strictly necessary ARE PERMISSIBLE under Article 6 § 1. Furthermore, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities...
    In cases where evidence has been withheld from the defence on public interest grounds, IT IS NOT THE ROLE OF THIS COURT [European Court of Human Rights] TO DECIDE WHETHER OR NOT SUCH NON-DISCLOSURE WAS STRICTLY NECESSARY since, as a general rule, IT IS FOR THE NATOINAL COURTS TO ASSESS THE EVIDENCE BEFORE THEM. ..." [emphasis added]

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  2. Anonymous09 July, 2008

    I would not doubt it but where is the source, please?

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  3. http://www.i-p-o.org/Koechler-Lockerbie-statement-appeal-July2008.htm

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