The Effects of Drug Court

Drug court was developed in Florida during the late 1980s because incarceration rates were extremely high among individuals arrested for drug-related crimes (Rigg, 2017). Addiction has been a problem in America for decades due to the effects substance abuse has on an individual. Drugs continue to keep getting stronger resulting in substance abuse issues for people using them. When an individual becomes addicted, they will do anything to get their drugs even if it means breaking the law and committing several crimes. Nonetheless, being in possession of drugs is a felony in itself however, the people who are using them do not think about the consequences while they are in active addiction. Moreover, being addicted to drugs can make it more inevitable to lead to a criminal record. On the contrary, having a criminal record can make it very difficult to find jobs and housing. Drug court is known as a sentencing alternative to treatment rather than prison for individuals who have nonviolent drug-related offenses. People who participate in drug court have to plead guilty to their charges, but the charges are temporarily suspended as long as the participants comply with the requirements of the program (Taylor, 2012). Not only is drug court a deterrent to committing crimes it helps to rehabilitate drug related offenders by making them productive members to society. Once drug court is completed most of these offenders charges are dropped down to misdemeanors or even forgotten altogether. However, many individuals who could benefit from drug court are not accepted into the program which can most likely cause a barrier in sentencing and the start of institualization. There are many factors that are put into consideration when accepting or denying an individual to the drug court program. Most people are denied if they have past convictions of same or similar offenses making the individual a liability by allowing them in the program (Reuter,2013) However, only a select few have received chances when it came to past convictions. Drug court is not easy however, it does help people recover from active addiction by learning to trust the process and the court system. This research project will help show how consequences can better an individual’s future through an alternative of incarceration. How does drug court help individuals recover from drug addiction? The researcher hypothesizes that drug court will hold people accountable, use treatment programs to achieve rehabilitation, and decrease recidivism. When an offender is incarcerated for drug related crimes with no rehabilitation that offender will most likely get out and commit other crimes, because of the control drugs have among an individual. Therefore, by placing the individuals in a program to get the help they need such as, drug court there would be less reoffending and more people recovering from addiction.

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Drug court is a program to help offenders who have been charged with drug crimes to receive the help they need along with reducing jail and prison population. All participants are required to take drug tests weekly, attend twelve step meetings, and obey treatment plans. Once the treatment requirement is fulfilled, they move to a new phase within the program which makes them closer to graduation (Taylor 2013). Nonetheless, being held accountable will help an offender take control of their life. When an individual is held accountable, they are in charge of their actions. Being eligible for drug court can help save a person’s life from a world of crime due to an addiction. These participants avoid jail time and the ability to have their charges dropped as if it never happened. Moreover, there are four phases in the drug court program, once an individual completes the last phase, they successfully graduate the program. When graduation occurs the individuals, charges are dropped and most of the time expunged from their record. If termination from the program occurs the judge will sentence them to jail or prison to serve their sentence (Taylor, 2013). However, it takes several sanctions to be terminated from the program. Sanctions occur when a participant fails to follow their treatment plan by using drugs and failing a drug test. These court professionals understand certain individuals will relapse at some point and they are there to help them get the help they need to be successful in the program. Relapse is a part of recovery when dealing with addiction that’s why it happens. However, it is completely up to the individual to fix the problem that led them to relapse, by being accountable can make them be successful in the future. Nonetheless, one bad situation should not have to be what ruins someone’s life. Drug court is not meant to be easy however, many individuals have graduated the program. Drug court is an alternative of sentencing for drug crimes with this program people who are successful do not need to serve any jail time however, they do have to follow the rules of the program which can be a well enough influence to staying clean. Drug courts consist of drug treatment, monitoring by the courts (probation), regular drug testing, and the use of sanctions for program noncompliance (Reuter, 2019). Drug test are a big part of the program since people are to abstain from the use of drugs, by monitoring these tests it is the best way to know if people are following the program rules. These drug tests are random every week, some individuals are put on a color code system. These systems insist of being told a color, having to call a number to see if that color was called for the day. If so, an individual has a certain amount of time in the day to take the urine sample. Not only does urine analyses hold people accountable it gives them a way to speak up before they get caught. Many addicts are never held accountable while in active addiction so teaching them other ways can better their future and completion rates. Drug court can be a hard task for the courts since most of the participants are used to negative influences and bad behaviors. Therefore, trying to positively influence a different behavior for a population that is not easy to treat can be very difficult. “The objective is to persuade offenders who are by definition impulsive and resistant to acknowledge their addiction and its control over their lives, to begin reconciling past behaviors, and to comply with restrictive legal supervision (Daigle,2019)”. Furthermore, if an individual fails a urine analysis, they are held accountable through their test results so the best thing for that individual to do is be honest. Which will most likely result in receiving a sanction which usually insist of spending a couple days in jail or revisiting a treatment program. Sanctions represent accountability for people to know the importance of changing a behavior through modification (Daigle,2019). Moreover, failing a urine analysis is considered being non-compliant which could possibly terminate a participant. However, most of the people who are in drug court at one point had a problem with drugs and alcohol so keeping them accountable could install different outcomes.

Treatment programs help rehabilitate individuals who were once in active addiction fighting to find themselves through relapse prevention. Treatment programs help with the therapy aspect of the behavior when it comes to the negative behavior, they participated in while becoming addicted to drugs or alcohol. Nonetheless, addiction is a fragmentation of mental health hence, they go hand and hand. When an individual uses substance it has the ability to mess with the chemical imbalance in the brain effecting dopamine levels therefore, inducing mental health issues and co- occurring conditions such as; depression or anxiety. Treatment just doesn’t focus on relapse prevention it also, helps with maintaining mental health through behavioral therapy and medication management. Moreover, treatment plans are set in place to help each individual stay clean. Therefore, being something that they must follow, Therefore, drug court participants receive treatment plans they must obey by which could include attending twelve step meetings, outpatient or inpatient treatment programs, maintain mental health, medications, and forms of therapy. Twelve step meetings are available to help each individual stay clean by meeting new people and building a foundation surrounded by positive influences. In addition, treatment programs are exceptional for changing a negative behavior into something positive through relapse prevention for individuals who had a problem and were unmanageable due to their addiction. Furthermore, by getting help through treatment programs made it possible to help manage what they’re downfall was by setting up a plan to prevent that from happening again. Treatment has been known to reduce drug use by rehabilitation. “Studies have shown that the people who attended a treatment program had a better success rate on staying clean then an individual who did not go to treatment at all (Taylor, 2019). Rehabilitation is the major role into abstaining from drugs along with reducing crime. Each individual in drug court are held responsible for their commitment to the program, weekly appearances in front of the judge, drug testing, and participation with treatment plans (Rigg 2017). Drug treatment programs can be very successful for most people due to the underlying issue that got them addicted to begin with. In addition, treatment programs are usually court ordered especially in Drug Court which has a higher success rate because they are mandated to doing so. Many individuals arrested for drug related crimes either receive a treatment program, drug court, or worst-case scenario incarceration. Most people do not want to be incarcerated therefore, being forced into treatment programs. However, treatment programs are most important to helping an individual abstain from all substances. “Recent research confirms that legally mandating treatment tends to lower dropout rates, reduce illicit drug use, and criminal offending (Taylor, 2012)”. Moreover, treatment is the major role of rehabilitation because an individual will learn the tools, they need to stay clean. Nonetheless, being forced to go to treatment can be what an individual needs to get the help they need by changing a negative behavior. Receiving therapy through treatment can change a behavior and make people productive members to society by reducing drug use. What makes treatment effective is the ability to focus on high risk offenders, come up with a productive treatment plan, and having an aftercare program to meet the needs of the individual (Taylor, 2012). Therefore, when treatment is effective the program will break the cycle and help the individual maintain sobriety through rehabilitation.

Lastly, prison and jail population has been on a rise for decades due the war on drugs. What began as a single drug court in Miami, Florida, in the late 1980s now has over 2,459 programs that is being effective in every state and almost half of all U.S counties (Reuter,2019). Drug court has the ability to reduce prison population and recidivism among offenders who commit drug related crimes. “Problem solving courts such as; Drug Court has been widely preferred as an important tool for reducing prison and jail populations by diverting drug-involved offenders into treatment rather than incarceration (Reuter,2019). However, a problem is the ability for an individual to be accepted into the program since it has strict guidelines. This could be an issue when it comes to reducing the population in jails and prisons. Nonetheless, an offender who is a preputial offender would have a hard time getting into the program because of past charges held against them. Reuter has discovered that drug courts will only be able to help lower prison and jail populations if big changes are made in the eligibility and sentencing guidelines. However, it is clear that substance abuse is linked to higher crime rates because of the effects substances have over individuals. Sample sizes have measured that, people who are at high risk for drug abuse and have been known to have such dependence will have a better change at being eligible for the program then an individual who has not (Reuter, 2019). Therefore, this evidence goes to show that the program is for people who struggle with drug dependence and the court believes the program would be beneficial to help these individuals. In addition, to staying clean there is a higher chance it could most definitely reduce recidivism while helping offenders. Although, there are risk factors for eligibility among certain individuals it is still possible for some as an alternative of sentencing. Furthermore, there has been “52,777 people admitted to drug court in the past ten years (Reuter, 2019). The number of people who were eligible for drug court were able to receive an alternative to incarceration which then was able to reduce the jail and population for that time. Therefore, not only giving people a chance but helping them in the process.

In conclusion, drug court is very successful with the growth it has achieved over the past twenty years. In addition, people have the ability to go through the drug court program to put their offenses behind them and start over. The program helps these individuals with rehabilitation, accountability, and reducing recidivism. Not only is drug court helping the government save money it is helping the individual to recover and become productive members to society once again. According to Reuter, drug court has grown extraordinary from state to state over the past twenty years making it a standard model of therapeutic reinforcement for the justice system in the United States. Instead of individuals being incarcerated for drug related crimes the court system has established different forms of sentencing that is implied to help the offender instead of incarcerating them all around the world. Drug court is becoming more and more effective making drug court successful for rehabilitation, holding people accountable, and by reducing recidivism. Therefore, drug court is helping addicts with all it has to offer and the court system with the program.

References:

Moore, K. A., Barongi, M. M., & Rigg, K. K. (2016). The Experiences of Young Adult Offenders Who Completed a Drug Court Treatment Program. Qualitative Health Research, 27(5), 750-758. doi:10.1177/1049732316645782

Sevigny, E. L., Pollack, H. A., & Reuter, P. (2013). Can Drug Courts Help to Reduce Prison and Jail Populations? The ANNALS of the American Academy of Political and Social Science, 647(1), 190–212. https://doi.org/10.1177/0002716213476258

Guastaferro, W. P., & Daigle, L. E. (2012). Linking Noncompliant Behaviors and Programmatic Responses: The Use of Graduated Sanctions in a Felony-Level Drug Court. Journal of Drug Issues, 42(4), 396–419. https://doi.org/10.1177/0022042612461773

Bahr, S. J., Masters, A. L., & Taylor, B. M. (2012). What Works in Substance Abuse Treatment Programs for Offenders? The Prison Journal, 92(2), 155–174. https://doi.org/10.1177/0032885512438836

Kelly, J., Bergman, B., Hoeppner, B., Vilsaint, C., & White, W. (2017). Prevalence and pathways of recovery from drug and alcohol problems in the United States population: Implications for practice, research, and policy. Drug and Alcohol Dependence, 181. Retrieved from http://search.proquest.com/docview/1980095082/

 

Role of the Forensic Criminologist in Court

Introduction

Forensic criminology is a subcategory of criminology where the theoretical meets the practical (Van Der Hoven, 2006). Forensic criminology is a science, behavioural and forensic science (Petherick, Turvey & Ferguson, 2010). Where criminology develops theories and studies the cause and the effect of crimes on society; forensic criminology has an academic background and brings the scientific method to the investigation of criminal cases.

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It is essential to understand the difference between criminologists and criminalistics, even though both of them are based on forensic science. While criminalistics use scientific method and analysis on physical evidence to investigate and solve crimes (Inman & Rudin, 2002; California Association of Criminalistics, 2019); criminologists explain the crime as social phenomena, and are from different backgrounds such as psychology or sociology (California Association of Criminalistics, 2019). Forensic criminologists in the court offer a wide range of knowledge because of the multidisciplinary of this field of study and have multiple areas of expertise (Petherick, Turvey & Ferguson, 2010).

This paper will discuss the role of forensic criminologist as an expert in court, the admissibility of expert testimony and the professional status of the forensic criminologist in the court in the first instance. The last point of this paper will be a critique of criminologists as an expert in court.

Roles in the Court Room

The purpose of the forensic criminologist is to help the court make a decision by bringing facts or evidence based on the forensic criminologist’ field of expertise (Jackson & Jackson, 2011). Being an expert witness indicated having more knowledge than the majority of people in a specific area of study (US Legal, 2019). Like every element of the court, the expert has some duty in the court:

1)     “An expert must help the court to achieve the overriding objective by giving an objective, unbiased opinion on matters within his expertise

2)     This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid

3)     This duty includes an obligation to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement” (Jackson & Jackson, 2011). 

The court calls the forensic criminologist for two distinct roles:

A consultant can work for both the plaintiff and defence attorneys. Even though forensic criminologists do not have to know as much as the lawyers about the civil litigation process, they have to know the essential characteristics such as the basic rules, the methods and the procedures, to professionally assist the court and give it answers (Gotham and Kennedy, 2019). The forensic criminologist work side by side with the criminal justice system to help identify and predict the psychological, sociological and economic features that may conduct people to commit the crime (Gotham and Kennedy, 2019).

In addition to the investigation, they are called during the trial to testify and explain the circumstances in which someone committed a crime. They can have the task to provide testimony or submit written reports related to the victimology aspect of the case, which includes residential, relationship or even medical history (Petherick, 2015). The first step to present evidence in court in the written report. Once called to the witness box, the expert is allowed to bring the written report without annotations to refer to it when answering questions. It is then followed by a cross-examination from the opposite side, where the facts and opinions given by the expert are rigorously tested (Jackson and Jackson, 2011).

Admissibility of Expert Testimony

Forensic criminologists have to be aware of the basic features of the litigation process. One of the most important sets of rules that the forensic criminologist has to be mindful of is the Federal Rules of Evidence, which highlight the admissibility of expert testimony and its limitations (Gotham & Kennedy, 2019) in the United States Federal Court. However, different states or countries, such as Australia, have adopted these rules.

For example, “Rule 702. Testimony by Experts” highlights that at the time a scientific, technical knowledge will be used to assist and help to understand evidence, an expert in this field of expertise can be called in order to testify about the evidence and give its opinion based on its different qualifications. “Rule 703. Bases of Opinion Testimony by Experts” suggests that if an expert’s viewpoint is based on facts and data before the hearing, the expert has to make them suitable with the facts and data of the trial. Only the admissible data will be disclosed by the jury (Petherick, Turvey & Ferguson, 2010).

Various Federal Rules of Evidence are based on several key cases called The Daubert Trilogy which is composed of Daubert v. Merrel Dow Pharmaceuticals, General Electric Co v. Joiner and Kumho Tire Co v. Carmichael cases (The Daubert Standard, 2013).

Daubert v. Merrel Dow Pharmaceuticals in 1993 concluded that judges are the gatekeepers and have the power to exclude unreliable expert testimony. They can decide if such evidence can be used in trial or not. The admissibility of the forensic evidence is then determined if the theory can be tested if it has already been tested by another expert, if the rate of error is known and if the technique or the theory have been recognised by the science community (Gotham & Kennedy, 2019)

General Electric Co v. Joiner in 1997 held that judges are the gatekeepers to ensure that expert testimony is relevant enough to be presented in court.  It also showed that judges need scientific knowledge to be able to decide if the methodology used reinforce the conclusions (Gotham & Kennedy, 2019).

Kumho Tire Co v. Carmichael in 1999 found that the court has to evaluate all scientific or non-scientific evidence with the same admissibility criteria (Gotham & Kennedy, 2019).

Federal court cases use The Daubert Trilogy regarding the admissibility of expert witnesses’ testimony. Any expert has to be familiar with this rule in order to better understand why a piece of evidence can be rejected or an expert testimony excluded (Forensic Group, 2016).

Professional status in Court

Even though the Federal Rules of Evidence support the forensic criminologist as an expert witness in the court, this does not change the fact that criminology is one of the only professions which does not have a code of ethics despite the broad range of disciplines that composed criminology. The non-presence of a code of ethics means that criminologists can practice without having to be part of any organisations (Petherick, Turvey & Ferguson, 2010). However, criminologists can become members of an organisation, such as the Australian Society of Criminology, by accepting the general principles of the organisation, but this is not an obligation.

Like other witnesses, expert witnesses are unaffected from civil lawsuits due to the evidence they gave to the court. However, this does not protect them from disciplinary actions from their respective regulatory bodies (Jackson & Jackson, 2011). As a young graduate forensic criminologist, it is essential to keep in mind the social responsibility that we have facing the court. Indeed, the judge’s decision can be based on our expertise and on the opinions and facts that we testify (Siegel, 2008). In this way, it is essential not to forget that if we do not feel qualified enough, it is better to decline the offer of being an expert witness than risking to, first, induce negative and fake facts and second, to break its career.

Criticism at criminologists as an expert in Court

“Skating on thin ice” (Bowers, 2013, p. 143)

This paragraph highlights the risk of not being qualified enough as an expert. Some characteristics have to be taken into consideration to offer a qualified expert at the court, such as its educational background, licences and certifications, teaching experience, books and articles written or even the number of times the individual has been qualified as an expert (Bowers, 2013). However, it is also the responsibility of the forensic criminologist to decline an offer of expertise if the expert does not feel that he is qualified enough.

One of the most relevant examples of an expert not qualified enough would be Fred Zain. He lied about his qualifications as a chemist to have a position in the serology department in the State Department of Public Safety. He also stated being graduated from the West Virginia State College with a major in biology and a minor in chemistry while he only majored in biology (with a C average) but never took chemistry as a minor subject. He also failed an FBI course in forensic science.

Nonetheless, no one checked his background and hired him as a forensic laboratory technician in West Virginia, where he falsified serology results to obtain convictions (Rutherford, 2010). From 1979 to 1989, a large number of defendants have been sentenced to a lengthy prison term’s based on Zain’s falsified results (Giannelli, 2010). This example highlights that even though most of the experts called in court testify with honestly, it is essential to question their integrity due to the social responsibility they have (Petherick, 2006).

Above else, forensic criminologists have to be objective. It means that whatever they like or not the nature of the information, they have to be able to investigate it without letting their feelings disturb what they see or hear (Kennedy & Kennedy, 1972). In this way, forensic criminologist has to be able to distinguish the truth from the opinion of others. Forensic criminologists should not forget to act like scientists; they have to test and falsify their hypothesis to prove their statements. However, no expert is totally impartial. Due to the sensibility of some cases, it is difficult to not have some prejudice (Thornton & Voigt, 1988). One of the main ones is the observer effect, “the results of forensic examination are distorted by the context and mental state of the forensic examiner to include the examiner’s subconscious expectations and desires” (Coley & Turvey, 2007).

This bias is human and funded on the fundamental principle of cognitive psychology, that says that our subconscious needs and expectations impact both our perception and interpretation. In the case of forensic criminology, this bias is often seen due to the different situations where information can easily cultivate conscious or unconscious expectations. For instance, in juvenile courts, it is usually for the best interests of the children rather than winning the case (Thornton & Voigt, 1988). In this way, according to the documentation (photos, reports, etc.) that the forensic criminologist can possess, he can work on the case with already unconscious expectations. 

Conclusion

  Observer effect highlights the fact that despite the objectivity that forensic criminologists should have in court, there are situations where the subconscious impacts directly the perception and the interpretation of evidence. However, forensic science and the scientific method on which forensic criminology is based help to bring reliable and possible opinions in the court.

Similarly, the Federal Rules of Evidence regulate the admissibility of opinions and facts as trustworthy evidence in the court. This set of rules is essential as the judge can base the judgement or punishment on the expert’s testimony. However, a problem remains, the non-presence of a code of ethics for criminologists. The Academy of Behavioural Profiling guidelines is generally enough to apply to criminologists, but it would be interesting to have a system as other professions have. Even though some issues are evident in their moral status, it is not the case for all of them. And for a young professional, having a clearly defined code of ethics would help in times of doubt but would also offer a delimited set of sanctions.

In the court, the expert witness such as the forensic criminologist is an advantage when the case requires expertise. Their specific knowledge offer testimony on a wide range of criminal justice principles and procedures but also give explanations on social issues in court. Nowadays, forensic criminology expertise has increasingly been asked in court due to the multidisciplinary of the field.  

References

Bowers, C. (2013). Forensic testimony: Science, law and expert evidence. London: Elsevier Science and Technology.

California Association of Criminalists. (2019). What is Criminalistics? Retrieved 10 October 2019, from https://www.cacnews.org/membership/criminalistics.shtml.

Cooley, C. M., & Turvey, B. E.  (2007).  Observer effects and examiner bias: Psychological influences on the forensic examiner.  In Chisum, W. J., & Turvey, B. E.  (eds.).  Crime Reconstruction. Boston, San Diego: Elsevier Science

Forensic Group. (2016). What is the Daubert standard for expert testimony? Retrieved 11 October 2019, from https://www.forensisgroup.com/daubert-standard-for-expert-testimony/.

Giannelli, P. (2010). Scientific fraud. Criminal Law Bulletin, 46(6), 1313-1333.

Gotham, K., & Kennedy, D. (2019). Practicing forensic criminology. London: Elsevier Science and Technology.

Inman, K., & Rudin, N. (2002). Principles and practice of criminalistics: The profession of forensic science. Boca Raton: CRC Press. 

Jackson, A., & Jackson, J. (2011). Forensic science (3rd ed.). Harlow: Pearson.

Kennedy, D., & Kennedy, B. (1972). Applied sociology for police. Springfield, Ill.: Thomas.

Petherick, W. (2006). Serial crime: Theoretical and practical issues in behavioral profiling. London: Elsevier.

Petherick, W. (2015). Applied crime analysis: A social science approach to understanding crime, criminals and victims. Waltham: Elsevier.

Petherick, W., Turvey, B., & Ferguson, C. (2010). Forensic criminology. London: Elsevier.

Rutherford, T. (2010). Former news anchor recalls “Mall Rapist” saga. Retrieved 11 October 2019, from https://web.archive.org/web/20150908151432/http://archives.huntingtonnews.net/local/101025-rutherford-localmallrapist.html.

Siegel, L.J. (2008). Criminology: The core. Belmond, Wadsworth Thompson.

The Daubert Standard. (2013). Forensic evidence admissibility and expert witnesses: Daubert standard. Retrieved 11 October 2019, from http://www.forensicsciencesimplified.org/legal/daubert.html.

Thornton, E., & Voigt, L. (1988). Roles and ethics of practicing criminologist. Clinical Sociology Review, 6(1), 113-133.

US Legal (2019). Expert witness law and legal definition. Retrieved 10 October 2019, from https://definitions.uslegal.com/e/expert-witness/

Van der Hoven, A.E. (2006). The criminologist as an expert witness in court. Acta Criminologica, 19(2), 152-171.

 

European Court of Human Rights and Religious Discrimination

 “The European Court of Human Rights is unable to protect religious minorities from discrimination”. Critically discuss this statement with references to case law.

In response to the question, I will argue whether there is any truth behind the statement that the European Court of Human Rights (hereafter ECtHR) is unable to protect religious minorities from discrimination. To do so I will be looking at article 14 in conjunction with Article 9 of the European Convention of Human Rights (ECHR). Religion along with race and gender is one of the grounds directly mentioned in Article 14 of the ECHR. The Court’s attempts to rule in relation to Article 9- “one of the foundations of a ‘democratic society’ within the meaning of the Convention” (Bielefeldt, 2013)[1]– this protects the freedom of thought, conscience, and religion, prompted opposition on the part of state authorities desiring to maintain their freedom to rule in this area without any external interference.

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     The battle against all different kinds of discrimination seem to be among the top priorities of the European institutions which are involved in the promotion and protection of human rights. In co-operation with the EU, whose role has been involved into force of the Charter on Fundamental Rights[2], the ECtHR is also following this trend competing for the lead role in taking positions against states which are indirectly discrimination those subjects under their jurisdiction who are more susceptible to unjust treatment as a cause of their ethnic origin, gender, sexual orientation and religion.[3] In this essay, the main focus will be on those that are religious minorities in their respective countries.

     This essay will explain how Article 14 in conjunction with Article 9 has been successful and will also discuss the shortcomings the courts have experienced in protecting religious minorities from indirect and direct discrimination. It also aims to highlight how the limitation of Article 14 has changed in recent case law and whether this has had an effect on how the Court has approached different cases in countries such as Greece, Italy, Turkey and France, amongst others.

     The ECtHR over the years has evolved into a venue where some of the most contentious questions regarding religion in European society are addressed. Since its establishment in 1959, it has seen a growth in its approach to religious cases, initially, its involvement with religion was very slow and limited. This remained the case until 1993, whereby the Court didn’t judge any cases based on the primary article of the ECHR defending and protecting religious freedom (Article 9). The landmark case of Kokkinakis v. Greece in 1993[4] marked the genesis of a serious and highly consequential engagement with religion. This case dealt with the compatibility of certain sanctions for proselytism [5]with Articles 7 and 9 of the ECHR. The ruling of six-to-three votes that a Jehovah’s Witness man’s freedom to manifest his religion, which is protected by article 9, had been violated by the Greek government. One judge stated that this case was “of particular importance” because it was “the first real case concerning freedom of religion to come to the European Court” since its establishment in 1959[6]. Since this case, the Court has dealt with topics such as whether religious symbols can be worn at work or at school, religious education, and the extent of a citizens’ bioethics related rights (abortion, medically assisted procreation (IVF), euthanasia etc.), the Court has made both bold and definitive statements, which have led to legal reform in many cases. As Heiner Bielefeldt, former UN Special Rapporteur on freedom of religion or belief explains, “On an abstract level, requirements of equality and non-discrimination receive an almost unanimous approval… [but] when it comes to drawing the necessary consequences from such general professions, things are often less clear”[7]. It has been made clear therefore, that there is a large gap between theory and practice regarding the relationship between freedom and equality is concerned, specifically concerning whether ECtHR are able to protect religious (or non-religious) minorities from discrimination.

    The ECtHR offers a plethora of case law regarding the issue of religious minority discrimination which is often drawn upon by different groups in their engagements with legal status-related issues, which reference different articles of the ECHR, often including Article 9 (freedom of religion) in conjunction with Article 14 (prohibition of discrimination). In Thlimmenos v. Greece (2000)[8], the applicant had been convicted for his refusal to wear a military uniform on the basis of his religious beliefs. Following this, he also wasn’t allowed to practice as a chartered accountant due to his criminal conviction. In this case, the Court interpreted Article 14 as prohibiting not merely the different treatment of persons in analogous situations but also the like treatment of persons who were not analogous. The Court held that in comparison to others, the applicant’s convictions were not deemed as morally reprehensible that would render a person unsuitable to enter the profession. According to the Court, there was no objective and reasonable justification for treating the applicant in the same way as other persons convicted of felonies. The Greek court was found in violation of Article 14 by failing to introduce exceptions to the blanket restriction on entry to the profession. This judgement is considered the landmark case in establishing the duties of differential treatment under the prohibition of discrimination. The slow development of the rationale in this case is due to the intrinsically engrained uneasy relationship between the Court and indirect discrimination.

    In a more recent case in Turkey, the nominally secular state combined with a heavily Sunni-Islam dominated governance renders practically all minority religions without legal status-conferred rights.  In the area of religious discrimination based case law, the religious minority group leading several cases in Turkey: the Alevis. In the case of Dogan and Others v. Turkey (2016)[9], the Court ruled that the Turkish state was discriminatory towards the Alevite branch of Islam in Turkey by not providing public Alevite religious services, even though services are provided for the majority Sunni population. The Court in this case reaffirmed some of the principles that were made in several decision such as the Metropolitan Church case (2001)[10] or Moscow Branch of the Salvation Army v. Russia (2006)[11], the judges felt it necessary to pay a greater amount of attention to the applicants’ being allowed to continue the practice of their religions in the cases whereby the Church did not have any legal recognition. In regards to the alleged violation of Article 14 in conjunction with Article 9, the Court recognised that, whilst the different treatment granted to citizens that followed the Sunni branch of Islam was suitable to uphold the Turkish principle of secularism, it was not proportionate enough for the achievement of this aim. The Court stated that the different treatment of Alevi followers had no objective or reasonable justification and it was therefore decided that there was indeed a violation of Article 14 in conjunction with Article 9[12]. In this particular instance, the ECtHR were able to protect a religious minority from discrimination.

   In contrast to what has been discussed previously, there have also been cases in which the ECtHR has been unable to uphold their duty to protect religious minorities from discrimination. A key case to look at would be SAS v. France (2014)[13] (also known as the ‘burqa ban case’), in this instance, the ECtHR upheld France’s decision to ban the burqa being worn by Muslim women. According to Dr Stephanie Berry, the ECtHR failed to support the principles of the ECHR by applying an assimilationist approach; the decision targeted Muslims due to a lack of neutrality, which in comparison to the Lautsi and Others v. Italy case[14], the Court concluded that a cross on the classroom wall is a ‘passive’ religious symbol, whereas the burqa is considered an ‘active’ one, therefore potentially disrupting the ‘living together’ principle. [15] Although the Court is expected to adopt a de facto high level of scrutiny when dealing with discrimination against religious minorities; their approach towards religion as suspect ground of differentiation is shockingly ambiguous, which can be seen in the two cases mentioned above. In its investigation of Article 14 in conjunction with Article 9, the Court avoids mentioning religion as a suspect ground; although it has been hinted at the suspect nature of religion as a ground of differentiation in some cases where the complaint was about discrimination in granting custody to a parent because of the religious affiliation of the parent concerned[16](see Hoffmann v. Austria (1993)[17]). Their reluctance to unequivocally denote religion as a suspect ground of differentiation is a result of the traditional line of jurisprudence under Article 9 which grants the participating states a broad margin of appreciation regarding ‘religion-state relations’. This answer however, does not explain the underlying question that remains which is why the Court feels the need to grant states a broad margin of appreciation regarding state-church relationships. More recently however, religion-states relations always concern various religions and thus differentiations between religions will inevitably exist. Therefore, when assessing these differentiations, the Court cannot allow states a broad margin of appreciation in matters of church-state relations under Article 9, and simultaneously acknowledge that religion is a suspect ground under Article 14, which entails a narrow margin of appreciation.

     Building on what has been mentioned previously, another angle to look at is the treatment of religious minorities in regards to accommodation of religious practices and norms. There are measures taken in order to address the barrier of participation that certain groups of people that are confronted with in their physical or social environment. These measures are about appreciating the need for equal opportunities, equal access therefore amounting to substantive equality. They are commonly defined in regards to employment, public services, education and social services. It is important to note that these accommodation duties are not absolute, rather, they are limited to what is considered ‘reasonable’ in specific circumstances. The concept of reasonable accommodation was conceptualised in the US and Canada to accommodate the vast religious diversity which followed a period of high immigration. Moreover, the reviews of national regulations in regards to duties of reasonable accommodation revealed that when grounds were specified, they most often include religion.[18] However, with this being said, current EU legislation only explicitly identifies duties of reasonable accommodation on ground of disability.[19] This therefore highlights the inability to protect religious minorities in Europe even though within the law of human rights there seems to be ways to navigate around these seemingly explicit standards through interpretation. Furthermore, with this being said, it was only in February 2016 that the ECtHR was able to explicitly identify duties of reasonable accommodation in terms of Article 14, in a case regarding a blind person.[20] Therefore, this is a telling sign of the fact that it’s unlikely that there will be any significant changes in the way that the Courts view and identify duties of reasonable accommodation on the basis of Article 9 especially due to the Court’s tendency to grant the contracting states a wide margin of appreciation in matters concerning the elusive notion of ‘religion-state relations’ and the lack of a European consensus on duties of reasonable accommodation on religious grounds.

   Most of the complaints about the failures to accommodate religious minorities in a working environment regarding the sanctions for not respecting working hours so that they can attend religious services and/or respect their religious holidays. In the Koteski case[21] the discrimination case wasn’t about indirect discrimination- the claimant complained that he was the only person of the Muslim faith that needed to prove his allegiance in order to benefit from the accommodation that was provided to Muslim terms of days off (so that they could they could honour their holy days). After studying this case, it is evident that when selecting religious holidays, the holidays only seem to accommodate the majority religion of the state, the different treatments could be categorised as either just being denied or being disregarded due to the argument of consensus within the states: ‘in most countries only religious holidays of the majority are celebrated as public holidays.’[22] In other words, actual indirect discrimination complaints are not taken seriously at all. Case law shows that the Court is highly reluctant in highlighting any exemptions or adapting and reinforcing rules that would avoid a disproportionate impact on the followers of a particular religion. A notable exception is the Court’s reasoning which holds that it is the duty of public authorities to make reasonable efforts to provide prisoners with a meal that follows their religious prescripts.[23] An example of this would be Jakóbski v Poland (2010)[24]  and more recently, Vartic v Romania (2013)[25]  these two cases were only decided under Article 9. However, the applicants felt that it was also a violation of Article 14, the Court dismissed this immediately as manifestly ill founded (para 69). Nonetheless, there’s a steady line of jurisprudence since (1976) is based on Article 9, the Court opines that there is no need for a separate evaluation of Article 14 because the inequality of treatment had already been taken into consideration in the finding of a violation of Article 9. Once again, the Court’s case law clearly shows its unwillingness to assess the complaints regarding discrimination.

Bibliography:

Table of Cases:

Çam v Turkey (2016).

Dogan and Others v. Turkey (2016).

Grzelak v. Poland App. No. 7710/02, Eur. Ct. H.R., ¶ 85. (2010)

Hoffmann v. Austria (1993).

Jakóbski v Poland (2010)

Kokkinakis v. Greece (1993).

Kosteski v the former Yugoslav Republic of Macedonia (2006).

Lautsi and Othersv. Italy (2011)

Moscow Branch of the Salvation Army v. Russia (2006).

SAS v. France (2014).

Thlimmenos v. Greece (2000).

Vartic v Romania (2013).

X v the United Kingdom (1981).

Secondary Sources:

Charter of Fundamental Rights of the European Union, solemnly proclaimed in Nice in 2001 and reaffirmed in Strasbourg in 2007, O.J. of 14 Dec. 2007

Bielefeldt, H., 2013. Misperceptions of Freedom of Religion or Belief. Human Rights Quarterly, 35(1), p. 53

Danisi, C., 2011. How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence. International Journal of Constitutional Law, 9(3-4), pp. 793-807.

Ferri, M., 2017. European Papers. [Online] Available at: http://www.europeanpapers.eu/en/europeanforum/dogan-et-al-v-turkey-a-missed-opportunity-to-recognise-positive-obligations#_ftn5[Accessed 20 April 2019].

Henrard, K., 2012. Duties of Reasonable Accommodation in Relation to Religion and the ECtHR: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality. Erasmus Law Review, 5(1), p. 64.

Henrard, K., 2016. The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?. Nordic Journal of Human Rights, 35(3), pp. 157-177.

Veloy, A., 2014. Minority Rights. [Online] Available at: https://minorityrights.org/2014/09/25/europe-minorities-are-protected-but-by-whom/[Accessed 29 April 2019].

[1] App. No. 7710/02, Eur. Ct. H.R. (15 June 2010), ¶ 85.

[2] Charter of Fundamental Rights of the European Union, solemnly proclaimed in Nice in 2001 and reaffirmed in Strasbourg in 2007, O.J. of 14 Dec. 2007 (hereinafter CFR). In particular, see chapter III dedicated to equality.

[3] C.  Danisi, How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence, International Journal of Constitutional Law, Volume 9, Issue 3-4, October 2011, Pages 793–807, https://doi.org/10.1093/icon/mor044

[4] App No 14307/88 (Application No) A/260-A 

[5] The act of attempting to convert people to another religion or opinion

[6] ECtHR judgement, partly concurring opinion of Judge Pettiti

[7] H. Bielefeldt, (2013) ‘Misperceptions of Freedom of Religion or Belief’, Human Rights Quarterly, Vol.35, pp.33-68

[8] no. 34369/97

[9] no. 62649/10

[10] no. 45701/99

[11] no. 72881/01

[12] http://www.europeanpapers.eu/en/europeanforum/dogan-et-al-v-turkey-a-missed-opportunity-to-recognise-positive-obligations#_ftn5

[13]  No. 43835/11

[14] Application no. 30814/06 (2011)

[15] From the University of Sussex, 3rd September 2014

[16] K. Henrard, The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?, Nordic Journal of Human Rights, 34:3, 157-177, DOI: 10.1080/18918131.2016.1225656, 2016

[17]  No. 12875/87

[18] K Henrard, Duties of Reasonable Accommodation in Relation to Religion and the ECtHR: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality (2012) 5 Erasmus L Rev 64.

[19] UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3, art 5, 3; Council Directive (EC) 2000/78 ‘Establishing a General Framework for Equal Treatment in Employment and Occupation’ [2000] OJL 303/16, art 5.

[20] Çam v Turkey (App no 51500/08) ECtHR 23 February 2016

[21] Kosteski v the former Yugoslav Republic of Macedonia (App no 55170/00) ECtHR 13 April 2006

[22] X v the United Kingdom, EComHR Decision, 12 March 1981, DR 27, para 29.

[23] K. Henrard, The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?, Nordic Journal of Human Rights, 34:3, 157-177, DOI: 10.1080/18918131.2016.1225656, 2016

[24] App no 18429/06

[25] App no 14150/08
 

Relevance and Reliability of Eyewitness Testimony in Court

When individuals either witness or are a victim of crime they may be required to give evidence in court. This can involve recounting events that took place or identifying a suspect from an identity parade. Evidence presented in a trial contributes to a judge or jury deciding whether an individual is innocent or guilty and if the information provided by the eyewitness is incorrect then innocent people may be found guilty or guilty people may go free (Loftus, 1986). With DNA testing, many individuals initially identified by eyewitnesses as being the perpetrator have subsequently been found to be innocent (Wells and Olson, 2003). Therefore, it is important that eyewitness testimony presented in court is accurate. The following essay will present research that has investigated why eyewitness testimony can be inaccurate and may consequently not be relevant in a court case. The essay will also consider whether children are accurate and reliable eye witnesses.

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Reconstructive Memory and Schemas
When individuals observe an unusual event, such as a crime, their memory is often affected by their mental schemata, which involves prior knowledge and factors such as cultural background and values, and not solely information from the event. If there are gaps in people’s understanding of an incident they can reconstruct their memories so that they can make sense of them. The notion of reconstructive memory was proposed by Bartlett (1932, cited in Toglia, 2007, pp.240-241). Witnesses’ memories may be influenced by events that occur after the crime, for example, information from news reports in the media or other witnesses talking immediately after the event about what they saw or heard. This is relevant in particular to witnesses who observe one part of an event who then incorporate such information to elaborate and reconstruct their own memories. Toglia (2007) states that this is known as the misinformation effect and also source misattribution, which occurs when witnesses are unable to remember where the information originated from and they are then seen as being unreliable and not relevant to the court procedure.
In their 1974 study, Loftus and Palmer found that the wording of questions affected the recall of witness. Participants watched a film of a car accident and were then asked to write a brief summary of what they had seen. They were then were asked questions about the accident using different verbs to describe the accident such as, ‘how fast were the cars going when they smashed/hit/bumped each other?’ (Loftus and Palmer, 1974, p.586). The different words implied that the car was travelling at different speeds with some words implying a faster speed than other words. It was found that there was a 9 mile per hour difference between the slowest and fasted estimated speeds of the cars made by the participants. One week later, the participants returned and were asked further questions including ‘did you see any broken glass’ and, depending on the verb used in the original question, the faster the car was perceived to be travelling, the more participants reported seeing broken glass, even though there was no glass in the film (Loftus and Palmer, 1974, p.587). The study supports Bartlett and the way in which witnesses can reconstruct their memories with their previous knowledge. In a similar study, Loftus and Zanni (1975) reported that more participants said they had seen the broken headlight, rather than participants who were asked if they had seen a broken headlight, even there was no broken headlight in the film. However, both studies were undertaken in a laboratory environment and involved participants watching films, therefore it may not be possible to generalise the findings to the way witnesses respond when witnessing real-life accidents. The studies show the importance of the way in which language can alter perceptions or memories of an event. This has been addressed by introducing a cognitive interview technique which Fisher, Geiselman and Raymond (1987) suggest avoids influencing the answers given by witnesses.
If a car was travelling fast and was involved in an accident, it would be expected that there would be glass or a broken headlight, even though the witnesses (participants) did not see any in the film scenario. Individuals use their schemas to explain what happens in certain situations for example, how a burglar behaves or what type of objects would be present in a specific context, for example, the layout inside a bank or restaurant. Therefore, if something unusual is seen Loftus, Loftus and Messo (1987) argue that a witness will pay more attention to the unusual object. This has been found to be the case for crimes where weapons are involved. Participants in the Loftus et al. study were shown a series of slides of a crime in a fast-food restaurant where a customer either pointed a gun or a cheque at the cashier. It was found that there were more eye fixations on the gun than the cheque. In a second study, it was found that participant’s memory for events was poorer in the weapon scenario than in the cheque condition which according to Loftus et al. (1987) emphasises the focus on weapons.
The Effect of Stress on Witnesses.
Observing a weapon in a crime may cause a witness considerable stress and this may have an effect on their ability to accurately remember details. This has been demonstrated by Clifford and Scott (1978) in a study that involved participants watching a film of a violent attack and a control group that watched a less violent version of the film. It was found that participants who watched the violent film remember fewer details than the control group. As the study was conducted in a laboratory, it is possible that the stress experienced by witnesses to violent events is greater in real-life crime and therefore, suggests that accurate recall may be impaired. A review of the literature undertaken by Deffenbacher, Bornstein, Penrod and McGorty (2004) undertook a review of studies that investigated the effects of stress on eye witnesses and found support for the negative effects of stress on accurate recall. Stress was notably higher, for example, if suspect was present in a line-up in comparison to the suspect being absent. A number of studies have attempted to induce stress-related scenarios to study the effects on participants as witnesses, although it could be suggested that this is unethical as it may cause the participants psychological harm. However, in a study with real-life witnesses who had been present during a robbery at gun shop where the perpetrator was shot dead, Yuille and Cutshall (1986) argue that stress may not have an adverse effect on memory and eyewitness testimony. The witness in the gun shop event had very accurate and clear memories of the event, which endured over a period of 5 months.
Intergroup Bias
Another factor that may influence the accurate memory of a crime in intergroup bias. Lindholm and Christianson (1998) found that the eyewitness testimony of Swedish students taking part in a mock crime scenario involving an armed robbery was influenced by whether the perpetrator was Swedish (in-group perpetrator) or an immigrant (out-group perpetrator). The participants in the study were both immigrant and Swedish students and when both groups were shown the film and asked to identify the perpetrator in a line-up afterwards the majority incorrectly identified an innocent immigrant. Both groups of participants typically identified an innocent perpetrator who was ethnically dissimilar more often than an innocent Swede. The study appears to show that witnesses can be influenced by biases and expectations regarding the type of person who is more likely to commit a certain type of crime. However, because the study involves a mock crime scenario it lacks the emotional aspects of a real crime and witnesses may not have the same biases they demonstrate in a laboratory task.
Loftus (1986) reports that in cross-racial identification by eyewitness, individuals are less accurate at identifying a member of a different ethnic group or culture than identifying features of a person’s own race. Such findings would appear to be particularly relevant in contemporary, multi-racial society in the UK, and other countries. Alderson (2010) reports that the majority of men held for violent and sexual crimes in inner city London between 2009 and 2010 were black, however, black men have also been found to constitute the greatest number of victims of crime (e.g. 29% male victims of gun crimes, 24% of knife crimes). This can lead to the stereotyping of certain groups such as black men being responsible for violent actions in comparison to white men as found by Duncan (1976).
Children as Eye-Witnesses
There have been some concerns expressed regarding the relevance and reliability of children as witnesses. There may also be concerns about older people as West and Stone (2013) for example, report that young adults are more accurate in their recall as witnesses than older adults. Children who appear as witnesses in a court case may have been exposed to very stressful events such as sexual or physical abuse, which would be unethical to replicate in laboratory conditions. According to Bidrose and Goodman (2000), childhood sexual abuse is additionally accompanied by feelings of shame as well as a lack of emotional support because of the secrecy that surrounds such events. In a study undertaken by Bidrose and Goodman, they investigated the testimony given by four female children aged between 8 and 15 years, in a sexual abuse case in New Zealand and also assessed the level of support regarding the allegations. The findings showed that there was a high degree of support for the children’s allegations which was matched to audiotapes and photos of the abuse (Bidrose and Goodman, 2000). The real-life study indicates that children’s testimony can be highly accurate although the children in the study were older and younger children may not be able to articulate what happened to them in cases of abuse.
Krähenbühl, Blades and Eiser (2009) conducted a study with 156 children aged between 4 and 9 years to investigate the effects of repeating questions several times in an interview situation as a witness. The children watched a staged event and were asked eight open-ended questions, each of which was repeated 4 times. Some questions could be answered from watching the scenario although others could not, and it was expected that the children would say that they did not know the answer. The children returned again after one week. It was found that for over 25% of children there was a decline in accuracy which was greatest after the first repetition of questions. There was little change with the questions that could be answered but considerable decline in accuracy with those questions with no accurate answers. Krähenbühl et al. (2009) concluded that if there is considerable repetition of questions with child witnesses, the accuracy of responses changes significantly and that if children cannot answer a question, they are more likely to fabricate answers with repeated questioning.
Conclusion
The evidence presented indicates that there are a number of problems around the issue of eyewitness testimony although it would appear that research has attempted to address some of the problems. This means that eyewitness testimony should be considered a valuable and relevant part of court procedure. Avoiding leading questions (Loftus and Palmer, 1974) and the introduction of the cognitive interview technique (Fisher et al. 1987) have helped to contribute to the more accurate recall of witnesses. Some problems are less easy to address, such as the stress experienced at a crime scene which may negatively affect recall although, Yuille and Cutshall (1986) have argued that in real-life witnesses are able to recall stressful events accurately. Similarly, intergroup biases are difficult issues to address in particular the perceptions of black people and their relationship with crime. Children as witnesses has a more positive outcome as their recall has been shown to be accurate (Bidrose and Goodman, 2000). A further problem is that of the methodology used when researching eyewitness testimony which is predominately undertaken in a laboratory and may not be generalisable to real-life situations.
References
Alderson, A. (2010). Violent inner-city crime, the figures, and a question of race. The Telegraph Newspaper, Retrieved on 5/10/2015 from; http://www.telegraph.co.uk/news/uknews/crime/7856787/Violent-inner-city-crime-the-figures-and-a-question-of-race.html.
Bidrose, S. and Goodman, G.S. (2000). Testimony and evidence: A scientific case study of memory for child sexual abuse. Applied Cognitive Psychology, 14, 197-213.
Clifford, B.R. and Scott, J. (1978). Individual and situational factors in eyewitness memory. Journal of Applied Psychology, 63, 352-359.
Deffenbacher, K.A., Bornstein, B.H., Penrod, S.D. and McGorty, E.K. (2004). A meta-analytic review of the effects of high stress on eyewitness memory. Law and Human Behavior, 28(6), 687-706.
Duncan, S.L. (1976). Differential social perception and attribution of intergroup violence: testing the lower limits of stereotyping of blacks. Journal of Personality and Social Psychology, 34, 590-598.
Fisher, R.P., Geiselman, R.E. and Raymond, D.S. (1987). Critical analysis of police interviewing techniques. Journal of Police Science and Administration, 15, 177-185.
Krähenbühl S.J., Blades, M. and Eiser, C. (2009). The effects of repeated questioning on children’s accuracy and consistency in eyewitness testimony. Legal and Criminological Psychology, 14(2), 263-278.
Linholm, T. and Christianson, S.A. (1998). Intergroup biases and eyewitness testimony. Journal of Social Psychology, 138(6), 710-723.
Loftus, E.F. and Palmer, J.C. (1974). Reconstruction of automobile destruction: An example of the interaction between language and memory. Journal of Verbal Learning and Verbal Behavior, 13, 585-589.
Loftus, E.F. (1986). Experimental psychologist as advocate or impartial educator. Law and Human Behavior, 10(1/2), 63-78.
Loftus, E.F. and Zanni, G. (1975). Eyewitness testimony: The influence of the wording of a question. Bulletin of the Psychonomic Society, 5, 86-88.
Loftus, E.F., Loftus, G.R. and Messo, J. (1987). Some facts about weapon focus. Law and Human Behavior, 11, 55-62
Toglia, M.P. (2007). Handbook of Eyewitness Psychology. Lawrence Erlbaum Associates.
Wells, G.L. and Olson, E.A. (2003). Eyewitness testimony. Annual Review of Psychology, 54, 277-295.
West, R.L. and Stone, K.R. (2013). Age differences in eyewitness memory for a realistic event. Journals of Gerontology, Series B, 69(3), 338- 347.
Yuille, J.C. and Cutshall, J.L. (1986). A case study of eyewitness memory of a crime. Journal of Applied Psychology, 71, 291-301.
 

European Court of Human Rights

Introduction
The purpose of litigation at the European Court of Human Rights (ECtHR), is to ‘examine alleged violations and ensure that States Parties comply with their obligations under the Convention,’ providing individual applicants with effective remedies and just satisfaction under Articles 13 and 41 of the European Convention on Human Rights (ECHR). The wider objective is to protect and embed locally the three CoE foundation stones; liberal pluralist democracy, human rights and the rule of law – to effect structural and institutional change and create a ‘common democratic and legal area throughout the whole of the continent.’

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Yet comprised of 47 member states and 811 million citizens, the CoE inhabits a fundamentally different territorial scope to that in May 1949. Originally a ‘social and ideological counterpart to NATO,’ it has undergone a central shift in its core ‘modus operandi’ from an interstate process of ‘protecting the democratic identity of Member States through the medium of human rights’ to its emerging ‘front line’ role as an arbiter of liberal human rights through the medium of individual petition. ‘Considerable problems that threaten to undermine what has been achieved over the fifty years during which the Convention has operated’ lead one to ask whether there is any point taking such cases at all.
This brief essay is split in two sections. Section one analyses the tripartite problem outlined within PACE Resolution 1226 (2000); the inadequate clarity and ‘casuistical’ nature of Court judgements, characterised by ‘doctrinal uncertainty’ in the margin of appreciation; the systemic non-implementation of judgments and failure to employ ‘necessary reforms that would avoid further violations,’ with a case study of the Russian Federation; and a critique of the ‘insufficient rigour’ and failure of the Committee of Ministers (CoM) to ‘exert enough pressure when supervising the execution of judgments.’
Section two, explores the central debate between individual and constitutional justice; and the potential impact Protocol 14 may have on the ‘asphyxiating’6] Court and CoM. Finally I assess the accomplishments of Strasbourg litigation before returning positively to our initial question with a passionate case for individual petition against the backdrop of a tide of human rights abuse in post-communist accession Europe; the utility of the Interlaken proposals; and preservation of the Human Rights Act 1998.
Section One: Problems
Theoretical Fault Lines: An ‘Unprincipled’ Margin
The extent to which there is any point to Strasbourg litigation is determined in the first instance by the extent to which the Court can effectively balance its role as a supranational judicial guarantor of liberal individualist human rights, within the CoE framework of upholding and deferring to the thread of pluralist democracy; an intrinsically collective ideal. For McHarg, Strasbourg jurisprudence is characterised by the absence of a conceptual framework integrating a preferable rights model with a ‘defensible conception of the public interest.’ Greer agrees, highlighting unresolved ‘normative’, ‘institutional’, and ‘adjudicative’ questions, and the failure of the Court to deliver a concrete body of jurisprudence and ‘constitutional authority.’ The result – ‘formulaic, “thin” decisions and un-ordered interpretive principles,’ at best devaluing Convention rights and at worst denying them.
This dichotomy is played out through the margin of appreciation doctrine; the ‘latitude’ given to States Parties based on their ‘better position’ with the facts on the ground. ECHR protections are not absolute, but relative; they are subject to exceptions permitting ‘infringement of the fundamental right or freedom’, specifically defined within paragraph two of Articles 8-11; and under Article 15 (A15) can be ‘erased altogether to the extent strictly required by the exigencies of the situation’. These ‘express definitional restrictions’ remind us of Bentham; ‘this, we see, is saying nothing: it leaves the law just as free and unfettered as it found it’. Strict judicial interpretation and objectivity are critical to the defence of Convention rights in the context of these exceptions.
The flexibility of the margin is for Waldock advantageous to the evolutive nature of Strasbourg Jurisprudence, and for Dr Arai-Takahashi ‘value pluralism being the fundamental prerequisite and virtue of a liberal democratic society’, a set of standardised rules would devalue ‘regional legitimacy and richness of cultural values and traditions among member states.’ The CoE is clear in its aim ‘to promote awareness and encourage the development of Europe’s cultural identity and diversity.’That Convention rights are relative is a moot point for realist theorists, since States Parties ‘would never have been willing to be bound by the Convention’ in the first place without safeguarding their democratic sovereignty.
Yet McHarg notes the ‘paradox in a legal scheme which is supposed to protect the individual against the collective, sanctioning limitations to rights on collective grounds’. How far in practice does the ECtHR go towards fulfilling the supervisory function it refers to in Handyside v UK (1976)? To what extent does Ost’s assertion that ‘there is never an unchallengeable margin’ hold true? McHarg talks of ‘doctrinal uncertainty’ while Jones points out that ‘even the Court’s president has acknowledged the justification “to some extent” of criticism of the doctrine’s “lack of precision” and “use without principled standards.”‘ Fiercer critics lambast the ‘abdication of the Court’s enforcement responsibility.’ Dembour questions if Convention rights are ‘so full of contradictions that they are useless?’
It is intrinsic to the dichotomy between international individual rights protections and the national collective interest that the margin of appreciation ‘occupies a middle position’ between subjectivity and objectivity; between a ‘burden of proof firmly on the government’ on one hand and on the other of wide deference to it. In Lawless v. Ireland (1961), Waldock asserted:
‘a Government’s discharge of responsibilities is a problem of appreciating complex factors and balancing conflicting considerations of the public interest; once the Court is satisfied that the appreciation is on the margin the interest the public itself has in effective Government and maintenance of order justifies and requires a decision in favour of the legality of the Governments appreciation’;
Simpson saw this reflecting ‘an implicit determination to back the authorities.’ Dembour and Jones’ respective assessments of further A15 derogations demonstrate consistently deferential applications of the margin, and reluctance to objectively scrutinise the existence of an emergency or of the measures implemented to tackle it. In Greece v. United Kingdom (1958), the Commission argued that ‘the assessment whether or not a public danger threatening the life of the nation existed is a question of appreciation’; determining the validity of the repressive measures employed, the UK government ‘enjoyed “a certain discretion.”‘ Such a position is clearly evident in Ireland v. United Kingdom (1978), confirmed in Brannigan v. McBride (1993), both concerning A15 derogations of Article 5 with regard to the detention of suspects in Ireland.
Several problems arise from the rationale employed in these cases. Dembour draws our attention to the absence of a ‘factually and theoretically strict analysis… impossible to justify in human rights terms.’ Indeed, the inevitability of a wide margin in the context of A15 derogations, led Judge Martens to assert that ‘there is no justification for leaving a wide margin because the Court, being the “last resort” protector, is called upon to strictly scrutinise every derogation.’ Jones contends a state of emergency objectively determinable – if a national government has evidence of such a situation, he asks why this is not capable of assessment by an international Court?
Implementation: A ‘pessimistic view is well founded’
Strasbourg jurisprudence has demonstrated the capability of the Court to robustly uphold Convention rights from ‘major shows of arbitrariness’, ensuring a ‘degree of justice for applicants and families, international attention,’ accountability in relation to serious violations, and domestic legislative change. Notwithstanding the significance of such supranational decisions, analysis of the pending caseload (some 116,800 cases in October 2009), reveals a Court facing unsustainable pressure from ‘repetitive cases concerned with structural problems in civil, criminal and administrative proceedings; serious pervasive human rights abuses;’ and ‘unacceptable delays in the implementation of judgements.’ Implementation remains the ‘Achilles’ heel’ of the Convention system, A brief case study of Russia underscores the gravity of the situation.
It is the ‘irony of history’ that the Russian Federation now occupies a key position in the very organisation established to provide European unity and security in the face of Soviet communism. Comprising 27.3% (31,850) of all pending applications at the ECtHR, the Medvedev Government faces protracted challenges in its attempts to ‘develop civil and economic freedoms ending the legal nihilism that is seriously hindering modern development.’ I write following the death in Butyrka prison of Sergei Magnitsky, an anti-corruption lawyer acting for HSBC / Hermitage Capital in the $230m tax fraud case. This case and the ongoing second Khordokovsky trial are emblematic of ‘structural defects in the Russian criminal justice system and procuratura that have lead to the accusation and incarceration of many innocent persons.’ Other important cases demonstrate the gravity of the situation, including Gusinskiy v Russia, Ilascu and Others v Moldova and Russia, the first six Chechen cases, Shamayev and 12 others v Russia and Georgia and Aleksanyan v Russia.
Leutheusser-Schnarrenberger’s recent PACE report on ‘politically motivated abuses of the criminal justice system’ is a powerful indictment of the failure of the Russian Federation to entrench a meaningful institutional framework that engages with the rule of law. The report highlights a multi-layered problematic of ‘political and hierarchical vectors of pressure’ on judges to secure convictions; retrogressive legislative proposals that call into questions Putin’s implementation of jury trial; the endemic failure to safeguard defence lawyers from coercion and realise a truly independent objective procedure for their selection and quality; serious investigative flaws; and unremitting legal nihilism.
The systemic pervasive abuse of human rights in Chechnya represents perhaps the most serious Convention violations. It is here that PACE and the CoM face their most urgent challenges. Bowring draws our attention to the recent memorandum on the North Caucasus, exposing ‘violations by security forces, including enforced disappearances, torture, extrajudicial executions; and impunity for these violations of international law;’ while Leach candidly outlines the scope and extent of the crisis; ‘the first Chechen cases demonstrate the real limitations of the individual rights mechanism of the European Court as a forum for resolving wide scale, systemic and serious human rights violations.’
In his recent visit to Birkbeck College, Leach vividly underscored the paradoxical and ‘lamentable’ and legally unsatisfactory problem of non-disclosure (ND) ‘of domestic case files, in spite of repeated requests made by the Court.’ 33 of the 37 Chechen judgments have been characterised by this problem, notably Basayeva and Others v. Russia and Bitayeva and X v. Russia and Isayeva, Yusopova and Bazayeva v. Russia. The Court in Bazorkina v. Russia pointed out that ‘documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the compliant both at the admissibility and merits stage.’ Chechnya aside, Leach identifies a further threefold problem of implementation vis-à-vis Russia, confirmed in Pourgourides 2008 CLAHR Report; ‘deficient judicial review over pre-trial detention, resulting in excessive periods of detention and overcrowding; the ‘Nadzor procedure – supervisory review of final judicial decisions’; and the urgent complex problem of ‘the non-enforcement of domestic judicial decisions against the state’
In the context of these problems, can there be any hope for optimism? Bowring draws our attention to the often ignored historical context which has characterised Russia as part of a ‘long and complex relationship with human rights – and with the rule of law and judicial independence, which are its essential underpinning.’ It is in this context he argues that the ECHR, rather than an ‘alien implant…is to a large extent a restoration of the reforms of the 1860s.’ Ghorkova contends ‘current legal reforms and the creation of the rule of law and a civil society with the appropriate structures and mechanisms to protect human rights and fundamental freedoms as well as the participation in the activities of the Council of Europe, are wholly in line with Russian Interests.’
Behind Russia’s posturing is, according to Bowring a serious engagement with international law – ‘its commitment in terms of diplomatic and financial resources is substantial; and compliance with its obligations – indeed, in 2007 the ECtHR heard 192 complaints against Russia. Russia won just 6 and paid in full the orders for compensation in every case.’ In addition, in a wider sense, Leach points out the ‘pre-eminent position of the CoE vis-à-vis Russia in view of the inability of the United Nations effectively to sanction Russia over human rights abuses, and as a result of Russian suspicion about the motives and aims of the OSCE.’
Entrenching the rule of law in Russia will be a slow process. However, the mechanisms for its success are at least in legislative terms visible. It is my contention that through the work of the CoE and ECtHR, the Russian Federation will make a true engagement with human rights. As we shall explore below, the right of individual petition is an essential part of this process. It is easy to dismiss the Court as having failed in its mission when confronted by the ongoing abuses of rights in Russia. Yet this depends on how one defines success.
From Systemic Individual Justice to an ‘Abstract Constitutional identity’
The critical mass of applications lodged coupled with systemic non implementation of Court judgements has led Wildhaber to a paradoxical observation; that the ‘quantum leap’ in recognising the ‘individual as a subject of international law,’ has reduced the capability of the ECtHR to ensure the safeguarding of the individual from violations of Convention rights. That the Court’s well noted ‘asphyxiation’ is intrinsically related to the right of individual recourse is clear. De Vries’ April 2009 CLAHR Report lays bare the unsustainable increase in applications, principally in the wake of post-communist accession, underscoring the urgent need to tackle ‘obviously inadmissible cases; repetitive cases that concern established systemic defects; and to concentrate on the most important cases.’
The inferences drawn from these stark figures have been decisive shaping proposals to ameliorate the crisis; but moreover reveal the wider ‘battle for the soul of the ECHR’ borne out of competing understandings of the Court’s function. The crippling application rate is for Greer emblematic of the intrinsic failure of the CoE structure to ‘systematically deliver individual justice;’ intrinsic since individual recourse is a ‘flawed paradigm.’
Foremost, the Convention system was, according to Greer, simply not designed as a conduit for the fulfilment of individual human rights through the medium of individual petition, but rather the ‘protection of democratic identity through the medium of human rights.’ Its contemporary utility is thus encouraging European public organisational, legal and ideological parity though ‘articulation of an abstract constitutional model member states should then apply.’ Greer goes on to cast doubt over the possibility of the ability of the Convention system to deliver systematic justice to every applicant, concluding that given this ‘individual justice becomes arbitrary.’ Finally, he argues that where cases are adjudicated in favour of the applicant, they are often ‘hollow victories’ marked by ‘symbolic rather than instrumental’ awards of just satisfaction, but beyond that little else.
Consequentially he argues the urgent need to ‘that the cases the Court does select for adjudication represent the most serious Convention compliance problems in Europe, and that they are settled with maximum authority and impact.’ Wildhaber agrees, the need for the Court to ‘concentrate its efforts on decisions of principle However, for Sir Stephen Sedley, ‘the proposal to introduce a discretion to refuse to entertain cases which are legally admissible is a counsel of despair; to do this would be to abandon the Court’s crucial role, which is not that of a Supreme Court, but that of a tribunal of last resort for citizens of non-compliant states.’ This, he argues may be ‘attractive to judges but is less attractive to citizens of sates which persistently or systematically fail to observe the convention.’ And this is less attractive still in light of the concern that ‘amendments to the admissibility criteria will restrict the right of individuals to seek redress at the European Court, without adequately tackling the problem of the increasing number of Convention violations across Europe.’
Conclusion: Why Bother?
Cameron’s renewed pledge to repatriate the Human Rights Act (1998) (HRA) ‘with a British bill of rights – to better tailor, but also strengthen, the protection of our core rights’ may soon be a reality. DPP Kier Starmer has made an impassioned defence of the HRA and broad impact of Convention jurisprudence on the CPS: ‘the common law sometimes struggles with a coherent approach to human rights; the Human Rights Act is an essential component of the framework within which everyone’s rights may be protected.’
The ECHR has shored up the right to a fair trial in the UK, the CPS underscoring the relationship between Article 6 and its work securing the ‘fairness of trial proceedings in criminal proceedings.’ It was central to the development of PACE (1984), ensuring formality of interrogation and ending miscarriages of justice through uncorroborated evidence. Regina v Fulling (1987) demonstrates the efficacy of PACE safeguards against evidence collected under oppression, contrary to the ECHR; ‘the meaning of the term (oppression) reflects the wording of Article 3.’
Starmer underscores the ‘positive obligation on the state to take reasonable steps to protect potential victims from a real and immediate risk to their lives from criminal activity. When they (victims) unfortunately acquire that status, they have the right to an effective investigation. These are rights that spring from the Human Rights Act, not rights that conflict with it. Critically, they are now enforceable in court’. Through the application of the ECHR, challenges may be made under Section 78 PACE as to the admissibility of the evidence obtained;’ and ‘victims have the right to challenge decisions not to prosecute, particularly where they can point to poor decision-making or inappropriate consideration of irrelevant factors in that process.’
The HRA is central to legal certainty and transparency, and development of a ‘modern public prosecution service prosecuting firmly and fairly, in an open, transparent and independent way; supporting victims and witnesses by enabling, encouraging and supporting their effective participation at all stages in the criminal justice process; and a commitment to respect and protect the human rights of all those affected by our decisions, whether they be victims, witnesses, suspects or defendants.’
Klug demonstrates the tangible ‘protection of freedom under the Human Rights Act’ in sixteen important areas; freedom of association; private and family life; freedom of expression and the media; terrorism; torture; jurisdiction in Iraq; protecting the right to life; investigations into deaths; marriage; asylum seekers; disability; mental health; restraint of young people in secure training centres; sexual orientation; race; and gender. A few examples of Case law in these areas make a powerful case for Strasbourg litigation.
A and others v UK (2009) held that the incarceration of ‘suspected international terrorists under the Anti-Terrorism, Crime and Security Act 2001 without charge or trial was disproportionate and discriminated on the ground of nationality or immigration status.’ In R (H) v Mental Health Review Tribunal, the rights of those detained under the Mental Health Act (1983) were bolstered by the shifting burden of proof for continued detention onto the health authority. Prisoners’ rights have been enhanced, including the granting of voting rights in Goldberg and Others v. Minister of Prisons (1979); the freedom from censorship of correspondence, in Silver and Others v. UK (1980); and ‘changes to cell policies following the racist murder of a prisoner’ in R (Amin) v SSHD (2003). R (Baiai) v SSHD (2008) was important ensuring the sacrosanct right to marry under Article 12 was free from discrimination on the grounds of immigration status.
Leach, in his recent visit to Birkbeck College drew attention to the heart-rending fact finding missions in Anchora in the early 1990s, highlighting serious pervasive violations of the Kurdish minority in South East Turkey. The deplorable case of Aydin v. Turkey (2005) is ’emblematic of the effect of individual petition’ and its ‘fundamental importance to the effective protection of the substantive rights and freedoms provided for in the Convention.’ It is perhaps through this significant programme of litigation, setting key standards in violations of Articles 2, 3 and 5, and delivering access to justice to those most vulnerable and marginalised members of society that the true point of litigation in Strasbourg is made.
For those in the North Caucuses, 2009 has been a frightful year, symbolised by the death in Grozny in July of Natalia Estimirova, followed a month later by Zarema Sadulayeva and Alik Dzhabrailov. Through the delivery of constitutional justice those most vulnerable people whose voices so desperately need to be heard will be cut off from the ‘most advanced international system for protecting civil and political liberties.’ Barkhuysen and Emmerick contend that the Court’s constitutional legitimacy and moral authority are derived through providing ‘legal protection to individuals by breaking the State Party’s sovereignty.’ This ‘unique achievement,’ unprecedented in international must be defended. It is here that the point of Strasbourg litigation is to be found.