May's Moving Goalposts – Some More Thoughts
By Richard A. Edwards ILHRU. UWE, Bristol.
In my last post I argued that Theresa May was wrong to characterise the application of Article 6 ECHR as a bar to deportation as a ‘movement of the goalposts.’ Thereafter in a short Twitter debate Adam Wagner indicated that he couldn’t agree fully with my view and characterised the Othman judgment as a ‘revolution’. Was I wrong? On reflection I still think Othman was evolutionary and not revolutionary, and as such there was no movement of the goalposts. Here’s why.
In Soering the Article 6 point was argued both before the Commission and the Court. The Commission was not convinced that the UK would directly be responsible for Soering’s subsequent indigent defence. Gideon’s trumpet failed to sound in this case (paras 155-157). But could the UK be held indirectly responsible? This seemed to be arguable. In his dissenting opinion Mr. Stefan Trechsel also made some interesting observations about the applicability of Article 6 that no doubt influenced the Court:
As regards the finding of the Commission with regard to Article 6 of the Convention, I agree with it in substance but would add a supplementary observation. In my view, a State which extradites a person to another State for the purpose of criminal prosecution is not a priori free from any responsibility as to the fairness of the proceedings in the requesting State. In fact, recent legislation on mutual assistance in criminal matters provides for an obstacle to such assistance where the requesting State does not respect the right to fair trial (see, for example, the relevant Swiss and Austrian statutes). Extradition is an act of participating in the proceedings of the requesting State. If the requested State knowingly concurs in unfair proceedings, it also bears some responsibility for the violation of human rights of the person concerned. In the present case, however, I am not satisfied that the applicant has shown with sufficient certainty that his right under Article 6 para. 3 (c) would not be respected in Virginia. I would not exclude, on the other hand, that if such a violation were to occur the respondent Government could later be held (partly) responsible for such violation.
Before the Court the arguments were repeated by the applicant, and contested by the UK. The UK argued that neither the extradition nor any act or decision of the UK constituted a breach of Article 6(3)(c) of the Convention. In the alternative the UK argued that the allegations were ill-founded. However, the Court concluded that Article 6 was applicable and made its now famous observation at para 113:
113. The right to a fair trial in criminal proceedings, as embodied in Article 6 (art. 6), holds a prominent place in a democratic society (see, inter alia, the Colozza judgment of 12 February 1985, Series A no. 89, p. 16, § 32). The Court does not exclude that an issue might exceptionally be raised under Article 6 (art. 6) by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.
Thus the principle and the applicable test were clearly laid down by the Court in 1989. But because the Court wanted to ensure that Article 6 would only apply in the most egregious cases a high threshold was imposed to stop Article 6 interfering too readily with extradition/deportation proceedings. In doing this the Court took a broader view of state responsibility than the Commission. The Court was mindful of not only its subsidiary role, but also the need to offer effective protection for human rights in appropriate cases.
The test has been referred to in numerous decisions of the Commission, the Court and domestic courts largely, though not exclusively, without success. In fact there are too many to comfortably cite! However, the ‘flagrant denial’ has not be more prominent for two reasons. First, most cases in the extradition/deportation have turned on Articles 2/3. And second, the threshold for success is high. Nevertheless, there are two decisions that require a slightly more detailed discussion because they are significant.
First, in Ahorugeze v. Sweden  ECHR 37075/09 (hat tip Dr Noelle Quenivet) the Court rendered an important judgment that re-stated the law unambiguously:
113. According to the Court’s case-law, an issue might exceptionally arise under Article 6 by an extradition decision in circumstances where the individual would risk suffering a flagrant denial of a fair trial in the requesting country. The principle was first set out in Soering v. the United Kingdom (cited above, § 113) and has been subsequently confirmed by the Court in a number of cases (see, for instance, Mamatkulov and Askarov, cited above, §§ 90-91).
114. The term “flagrant denial of justice” has been considered synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II).
115. It should be noted that, in the twenty-two years since the Soering judgment, the Court has never found that an extradition or expulsion would be in violation of Article 6. This indicates that the “flagrant denial of justice” test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.
116. In executing this test, the Court considers that the same standard and burden of proof should apply as in the examination of extraditions and expulsions under Article 3. Accordingly, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 129, ECHR 2008-…).
Of course the use of confessions procured from torture had already been condemned by the Court as a denial of a fair trial in Harutyunyan v Armenia  ECHR 36549/03, para 66. Thus the Court’s judgment in Othman was predictable to anyone properly familiar with European human rights law.
Second, the Home Office defended a domestic case in which these Article 6 arguments were successful. In Torabi v Home Secretary  CSIH 24 the applicant was an Iranian national threatened with return to Iran where she was accused of adultery. Both her claim for asylum and challenges to that decision had failed. She appealed to the Inner House from the Immigration Appeal Tribunal on the grounds that the Home Secretary’s decision to return her to Iran would violate Articles 3 and 6. Lord Macfadyen took the Article 6 point first:
 It is convenient to consider first the appellant’s case under article 6. We are in no doubt that the test to be applied is the one identified in Ullah. As Lord Bingham of Cornhill pointed out in that case at paragraph 6, a different approach is required when considering a foreign case from that which is appropriate in the domestic context. That is because, as Collins J put it in Fazilat at paragraph 16:
“… it is not for the signatories to the Convention to impose their system on all the world”.
The formulation of the appropriate approach adopted by Lord Bingham in Ullah at paragraph 24 was that:
“Where reliance is placed on article 6 [in foreign cases] it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state.”
(See also Soering v United Kingdom at paragraph 113.) … … the appellant must show is that there is a real risk of a flagrant breach of her right to a fair trial. …..
 On the article 6 issue, therefore, our conclusions are (1) that the relevant test which the appellant must satisfy is to show that there is a real risk, in the event of her return to Iran, of flagrant breach of her article 6 right to a fair trial; (2) that the tribunal erred in law in failing to take into account, in relation to that issue, the evidence that showed that the point quoted in paragraph 9* of the determination from the 2001 CIPU report was repeated in the 2002 CIPU report, and was thus not undermined as the tribunal thought it was; and (3) that it is not appropriate for us to attempt ourselves to carry out the comprehensive evaluation of the objective evidence bearing on the article 6 issue which the tribunal, through its error, disabled itself from carrying out. We consider that the appropriate course for us to take in respect of this aspect of the appeal is to remit to the tribunal’s successor, the Asylum and Immigration Tribunal (“the AIT”), so that it, as the specialist tribunal, may carry out the appropriate evaluation and apply the relevant test. …
* [The evidence set out in para 9 indicated that in the Iranian court system : (a) a woman’s testimony is worth only half that of a man; (b) judges are responsible for prosecution; (c) trial hearings are often held in camera; (d) the penalty for adultery is death by stoning or lashes; and (e) the penalty of death by stoning is implemented.]
The very argument that was used in Othman was apparently used domestically long before 2012.
In conclusion, the European Court of Human Rights is not some form of errant institution bent on imposing its quixotic will on Europe by arbitrarily ‘moving the goalposts’. Nothing could be further from the truth. The Court has developed a rich and sophisticated jurisprudence of human rights that is one of the glories of European civilisation. That law evolves and develops. The ‘flagrant denial’ test has been part of that law for a long time, and no doubt will continue to be, even if it is not often successfully invoked.