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Russian Prisons: Still inhuman, Still degrading

Published on February 27, 2013        Author: 

Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford. She was previously a consultant to UNICEF and has interned with the Office of the United Nations High Commissioner for Refugees in Pakistan

This month, the European Court of Human Rights handed down two more judgments finding Russia to be in breach of Articles 3 and 13 of the Convention with respect to the appalling conditions in its remand centres, and the lack of a domestic remedy for claims of ill-treatment in detention. In the cases of Yefimenko (February 12) and Zuyev (February 19) (not to mention last month’s contribution in Reshetnyak, January 8) the Court’s First Section unanimously found violations of Articles 3 and 13 by the Russian Federation, yet again. These judgments are significant because they reflect the failure of the European Court’s ‘pilot judgment’ policy to stem the flow of applications by detainees in Russian prison and remand facilities.

The problem with Russian prisons is symptomatic of the wider issue of the clogging of the Court by so-called ‘repetitive applications’ (defined by the Court as those relating to ‘structural issues in which the Court has already delivered judgments finding a violation of the Convention and where a well-established case law exists’). This problem persists despite the various efforts by contracting states to reform the structural problems of the Court, and the Court’s introduction of a ‘priority policy’ to manage its extensive workload. The Court’s provisional annual report for 2012 (available here) admits there are almost 30,000 pending cases allocated to judicial formation against Russia alone. The second ‘worst offender’ is Turkey, with a little over half of that number, and Italy in a close third place with almost 15,000 pending cases (see p149 of the report). Those three states together account for almost half of the 128,000 cases currently pending before the Court. The violations by country-and-Article breakdown (p152-3 of the report), reveals that in 2012 there were 75 findings of violations of Article 3 by Russia last year, which amounts to 27% of the total number of Article 3 violations across the contracting states in that period. Russia has a serious problem in its detention centres—and it seems that the Court (not to mention the Council) has a serious problem with Russian compliance with the Convention. Read the rest of this entry…

 

Evidence Obtained by Torture: Is it Ever Admissible?

Published on November 28, 2012        Author: 

Natasha Simonsen is a graduate student in the Faculty of Law, University of Oxford

Earlier this month, the UK’s Special Immigration Appeals Commission (‘SIAC’) ordered the release from detention of controversial Jordanian-born cleric Abu Qatada. SIAC held that he could not be deported to Jordan, because there was a ‘real risk’ that evidence obtained by torture would be admitted against him in proceedings in Jordanian courts (read the judgment here). The cleric was released on highly restrictive bail conditions on Tuesday of last week, and the scale of public outrage was such that police had to intervene to protect him from protesters outside his home. The Home Secretary may appeal the decision, and there are new rumours that Abu Qatada plans to sue the government for damages for wrongful imprisonment. This post addresses the implications of SIAC’s decision for the exclusionary rule for  evidence obtained by torture.

The Strasbourg Court’s decision

To fully explain the SIAC decision we must return to the European Court of Human Rights’ decision in Abu Qatada v UK from January of this year. To the exasperation ofmany British politicians, including the Prime Minister, in that case the Strasbourg Court held that Abu Qatada could not be deported to Jordan, because the trial that he faced there would likely involve the admission of torture evidence. The two key witnesses against him had been beaten on the soles of their feet to extract confessions—a torture technique known as falanga—and the Jordanian State Security Court was unlikely to exclude such evidence [at 285 in the judgment]. This meant, in the Strasbourg Court’s view, that there was a ‘real risk’ that Abu Qatada would face a flagrantly unfair trial in breach of Article 6 of the Convention. The Court used strong language, stating that that ‘the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial’ [at 267]. Elsewhere in the judgment, the Court stressed that the exclusionary rule was inextricably bound up with the rule of law [264]. Read the rest of this entry…

 
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‘Is torture ever justified?’: The European Court of Human Rights decision in Gäfgen v Germany

Published on June 15, 2010        Author: 

Natasha Simonsen is a Rhodes Scholar at the University of Oxford. Previously, she worked as a consultant for UNICEF and has interned with the United Nations High Commissioner for Refugees in Pakistan.

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down its decision in Gäfgen v Germany. The case raised the classic ‘ticking time bomb’ scenario that features in moral philosophy seminars the world over, forcing the Court to confront the question: is torture is ever justified? Although the Court’s rhetoric emphasised the absolute nature of the prohibition on torture and inhuman or degrading treatment, that was not borne out in the result, with the majority finding that the admission of evidence obtained as a direct result of inhuman and degrading treatment did not compromise the fairness of the applicant’s trial.

The tragic facts of the case are as follows. The applicant lured a 12 year old boy to his Frankfurt apartment and suffocated him, disposing of the body beside a lake and issuing a ransom demand to the boy’s parents. Gäfgen collected the ransom, and was arrested attempting to flee from Frankfurt airport later that afternoon. He told police that the boy was alive and being held by two other (fictional) kidnappers in a hut by a lake, but repeatedly refused to disclose the location.

 Believing the boy’s life to be in grave danger, and in the face of the applicant’s continued resistance to police questioning, the next morning the Deputy Chief of the Frankfurt police authorised Officer E to threaten Gäfgen with considerable pain, and to inflict that pain if necessary. The infliction of pain on the applicant was to occur under medical supervision by a specially trained police officer who was en route to Frankfurt in a helicopter at the time. The authorisation was fully documented in the police file, and was taken in defiance of explicit orders to the contrary by superiors. Gäfgen also alleged that he was pushed in the chest several times, shaken so that his head hit the wall, and that he was threatened with sexual abuse. The Grand Chamber did not find these additional facts to be established beyond a reasonable doubt, although they did accept that threats to inflict considerable pain on the applicant had been made and that officer E had the intention to carry them out. A mere ten minutes after the threat, Gäfgen made a full confession and admitted the boy was dead.  He agreed to take police to the lake where he had hidden the  body (on the condition that officer E was not present). He reiterated his confession on several subsequent occasions. Read the rest of this entry…