Thursday, 29 June 2017

Irreparable damage to the rule of law in Scotland

[On this date in 2007 Professor Hans Köchler issued a statement on the decision by the Scottish Criminal Cases Review Commission to refer the conviction of Abdelbaset Megrahi back to the High Court of Justiciary for a further appeal. It reads as follows:]

Dr Hans Köchler, President of the International Progress Organization (IPO) and Head of the Dept. of Philosophy at the University of Innsbruck, Austria, served from 5 May 2000 until 14 March 2002 as international observer at the Scottish Court in the Netherlands ("Lockerbie Court"). He had been nominated by the Secretary-General of the United Nations,  Mr Kofi Annan, on the basis of Security Council resolution 1192 (1998). Dr Koechler issued two comprehensive analytical reports after the Trial (3 February 2001) and after the Appeal (26 March 2002) respectively, which the International Progress Organization submitted to the United Nations.

In his reports, Dr Köchler was highly critical of the proceedings and questioned the fairness and impartiality of both the Trial and Appeal Courts. In an interview for the BBC on 14 March 2002, he described the dismissal of the appeal as a "spectacular miscarriage of justice" (BBC News World Edition). At the time, the Scottish judicial establishment had tried to dismiss Dr Köchler's conclusion as a misunderstanding of the Scottish judicial system. The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the case of Abdelbaset Ali Mohamed Al Megrahi back to the Scottish High Court of Justiciary has - after additional investigations lasting more than five years - confirmed Dr Köchler's original concerns. In particular, the SCCRC had doubted the credibility of one of the key witnesses, Maltese shop owner Tony Gauci, stating in its News Release of 28 June 2007 "that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items [clothes that were found in the wreckage of the plane] from Mary's House [in Malta] took place on 7 December 1988." Exactly this point had been stated in some detail by Dr Köchler in his appeal report of 26 March 2002 (!) (Paras 10, 15 and 16).

However, in interviews conducted yesterday by representatives of the Scottish, British and German media, Dr. Koechler expressed his surprise at the Commission's focus of review and apparent bias in favour of the judicial establishment: "In giving exoneration to the police, prosecutors, and forensic staff, I think they show their lack of independence. No officials to be blamed, simply a Maltese shopkeeper." (The Herald, Glasgow, 29 June 2007)

The decision, announced by the Scottish Criminal Cases Review Commission (SCCRC) on 28 June 2007, to refer Mr Al Megrahi's case back to the High Court of Justiciary has been long overdue and has created the chance for a second legal evaluation by an Appeal Court of five Scottish judges.
It is to be hoped that, in view of the far-reaching political implications and international ramifications of the case, this time the judges will act in full independence and that the proceedings will meet the standards of fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. If this final chance to put things right and conduct criminal proceedings in a fair and fully transparent manner is missed, irreparable damage will be done to the rule of law in Scotland and to the principle of "devolution" of important areas of public administration from the United Kingdom level to that of Scotland.
The undersigned would like to restate the point he made in his appeal report in 2002, namely that the final arbiter of the fairness of Scottish criminal proceedings (after all means of review in the domestic context have been exhausted) is the European Court of Human Rights (Strasbourg) that exercises its jurisdiction on the basis of the European Human Rights Convention.
Regrettably, the SCCRC has not disclosed all its grounds of referral and, in its news release of 28 June, has basically concentrated on the dubious role of Maltese witness Tony Gauci - while at the same time engaging in a rather strange exercise of "preventive exoneration" of certain people belonging to the British and/or Scottish police and judicial system whose behaviour, as pointed out in the undersigned's reports and confirmed, in the meantime, in several affidavits, has been highly questionable and may have detrimentally affected the fairness of the proceedings (see IPO News Release of 14 October 2005). It is particularly difficult to comprehend why the SCCRC would take great pains to "absolve" Mr Megrahi's defense team during the trial and first appeal from any criticisms in regard to their performance in the interest of their client (para 4.1 of the News Release of the SCCRC). The lack of integrity of the defense was obvious to the undersigned during the two years he observed the proceedings at Camp Zeist in the Netherlands and was the object of a conversation of the undersigned with the appellant (Mr Megrahi), arranged, at the latter's request, by the Scottish Court Service at HM Prison Zeist.
In view of the flawed trial and appeal proceedings, now acknowledged, at least in part, by the Scottish Criminal Cases Review Commission, and for the sake of transparency, the report of the Commission should be made public in its entirety. The victims' families as well as the international public deserve to know the full truth about the reasons of referral of Mr Al Megrahi's case back to the High Court of Justiciary.
In conformity with the principle of transparency of the proceedings that was guiding United Nations Security Council resolution 1192 (1998) (operative para 6), the proceedings of the Scottish Appeal Court should again be witnessed by international observers.
The undersigned renews his call for a full and independent public inquiry of the Lockerbie case and its handling by the Scottish judiciary as well as the British and US political and intelligence establishments. In order to avoid bias, such an investigation will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries that are not involved in the Lockerbie dispute.
Those politicians in the United Kingdom and the United States who have proclaimed an international "war on terror" will not be credible in their strategy if they prevent a full investigation into the causes of the explosion of Pan Am flight 103 over Lockerbie. All those responsible, without exception,  must be brought to justice.
(signed) Dr Hans Köchler

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