Criminal investigation into the death of Yasser Arafat. No violation of the right of the daughter and his widow to be heard
JUDGMENT
El Kodwa Arafat v. France 1.7.2021 (app. no. 82189/17)
SUMMARY
Criminal investigation, fair hearing and evidence. The applicants, a widow and daughter of Yasser Arafat, had complained of a breach of their right to a fair hearing, in proceedings in which they participated in support of the prosecution, after their lawsuits against strangers for the murder of Yasser Arafat.
In its decision, the ECtHR found that the judicial investigation into premeditated murder, initiated by the Nanterre prosecutor less than a month after the indictment and the appointment of three investigators, showed that the domestic authorities had acted diligently to investigation of the applicants’ complaint. In addition, many investigative actions had taken place, both in France and abroad, and at all stages of the proceedings, the applicants, with the assistance of their lawyers, were able to exercise their rights effectively and submit their observations.
The Court also noted that the rejections of certain of the applicants’ claims, having been duly examined by the domestic judges and rejected by reasoned decisions, could not in themselves call into question the correctness of the proceedings as a whole. Judgments did not appear to have reached arbitrary conclusions based on the facts and the interpretation of the evidence on the basis of the file or the applicable law was not unreasonable.
The ECtHR declared the appeal inadmissible.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicants, Suha El Kodwa Arafat and Zahwa El Kodwa Arafat, are French nationals who were
born in 1963 and 1995 respectively.
They are the widow and daughter of Yasser Arafat, who died on 11 November 2004 in France at the
Percy Military Hospital where he was being treated following a decline in his state of health at a time
when he was in Ramallah, Palestine. On his widow’s request, no post mortem was carried out.
In March 2012 traces of polonium 210, a highly radioactive material, suggesting that Y. Arafat might
have been poisoned, were found on his personal belongings that his widow had recovered after his
death. They were entrusted to a journalist from the Al Jazeera television channel, C.S., to be
analysed.
In July 2012 the applicants initiated criminal proceedings, to which they were joined as civil parties,
by filing a criminal complaint against persons unknown alleging the premeditated murder of Yasser
Arafat. On 28 August 2012 the public prosecutor of Nanterre opened a judicial investigation on that
charge. Three investigating judges were appointed and three experts were asked to determine the
cause of the decline in Mr Arafat’s health. Their operations took place in the presence of French and
Swiss teams, together with a Russian team at the request of the Palestinian Authority.
The French judicial expert’s report concluded that the result of radiological analyses did not prove
the existence of exposure to polonium 210. The Swiss report disagreed with the French findings. An
additional expert’s report, ordered by the investigating judge, confirmed the findings of the French
report. The applicants submitted a request for that additional report to be excluded from evidence
as invalid.
Many witnesses were interviewed in Palestine, France and in other countries under international
letters of request.
On 1 September 2015 the investigating judges gave a decision, with lengthy reasoning, discontinuing
the investigation. In two judgments of 24 June 2016 the Investigation Division of the Court of Appeal
of Versailles dismissed the plea of invalidity and upheld the discontinuance. The applicants appealed
on points of law against those judgments.
On 28 June 2017 the Court of Cassation dismissed those appeals.
The application was lodged with the European Court of Human Rights on 5 December 2017.
Relying on Article 6 § 1 (right to a fair hearing), the applicants complained about the refusal to
exclude from evidence an additional expert report, as they had requested on account of their doubts
concerning the origin and traceability of the sample used for that assessment, the methodology
applied and the results, which were contradicted by the results of Swiss experts. They also criticised
the refusal to order a fresh expert report on their behalf and to grant their other claims, based on
contradictions between the results obtained by the different experts, Swiss and French, from their
respective measurements and analyses.
THE DECISION OF THE COURT….
Article 6 § 1
The Court reiterated that, while the Convention guaranteed the right to a fair hearing under Article 6
it did not lay down any rules on the admissibility of evidence as such, this being primarily a matter
for regulation by domestic law. It therefore did not fall within the Court’s remit to substitute its own
assessment of the facts and evidence for that of the domestic courts, its task being to ensure that
the evidence was taken in a manner that guaranteed a fair hearing.
The Court noted that a judicial investigation for premeditated murder had been initiated by the
public prosecutor of Nanterre less than a month after the complaint was filed and three
investigating judges had been appointed, thus showing that the domestic authorities had acted
diligently upon the applicants’ complaint. In addition, many investigative acts had been performed,
both in France and abroad.
In addition, it appeared that at all stages of the proceedings the applicants, assisted by their lawyers,
had been able to exercise their rights effectively and to make their submissions on the various
aspects at issue. The Court noted in particular that the interviews had been based on a list of witnesses provided to the investigating judges by the applicants themselves and that their request for additional interviews had also been accepted.
The Court took the view that the refusals of some of the applicants’ requests, after being duly
examined by the domestic judges and rejected in reasoned decisions, were not in themselves
capable of calling into question the fairness of the proceedings as a whole.
Lastly, it did not appear that those judges had reached arbitrary conclusions based on the facts
before them or that their interpretation of the evidence in the file or the applicable law had gone
beyond what was reasonable.
In those circumstances the Court declared the application inadmissible.
