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Home Archive for category "Human Rights"

Thou shalt not Insult the (Foreign) Head of State?

Published on April 28, 2016        Author: 

Earlier this month, a German prosecutor’s office confirmed that it was investigating TV comedian, Jan Böhmermann, for having read on his TV show, Neo Magazin Royal, a poem targeting the Turkish President Erdogan (see here or here). The poem, entitled “Schmähkritik” (“Defamatory”), accused Mr Erdogan of deliberately suppressing minorities such as Kurds and Christians. As the comedian himself admitted, the language used was deliberately offensive- it contained sexually explicit insults against the Turkish president (and was read in front of the Turkish flag and a portrait of Mr. Erdogan).

The Böhmermann Case

The TV show stirred fierce criticism from the Turkish capital of Ankara. The Turkish Embassy in Berlin lodged a formal request with the German Ministry of Foreign Affairs for the prosecution of Mr Böhmermann. The prosecution could take place under Article 103 of the German Criminal Code entitled “Defamation of organs and representatives of foreign states”. This provision reads as follows:

 (1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Pursuant to Article 104a of the German Criminal Code, prosecution of this offence would require the following conditions to be met: the Federal Republic of Germany maintains diplomatic relations with the other state; reciprocity is guaranteed and was guaranteed at the time of the offence; a request to prosecute by the foreign government exists; and the Federal Government authorises the prosecution.

The first three conditions are clearly present in the Böhmermann case – Germany maintains diplomatic relations with Turkey; the combination of Article 125 (Insult) and Article 340 (Offences against the Head of a Foreign State) of the Penal Code of Turkey would allow for the criminal prosecution of persons who insult the German head of state in Turkey; and Turkey has requested the prosecution.

Originally, securing authorisation for the prosecution from the German Federal Government was less than certain. In some previous cases involving the alleged insult of Mr. Erdogan (the NDR Case), authorisation had been denied. In the current case however, the Government, after some initial hesitation, decided to grant it. Thus, the case will go forward alongside a civil lawsuit for defamation filed by Mr. Erdogan himself.

While interesting in itself, the case gives rise to a more general question relating to the level of protection provided to heads of state under current international law. Should heads of state, as is the situation with other public officials, be expected to withstand even harsh political criticism, thus being effectively subject to a lower level of protection than common citizens? Or on the contrary, should heads of state be granted a higher level of protection in so far as they represent the state and could therefore be considered one of its symbols? Read the rest of this entry…

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The Russian Constitutional Court and its Actual Control over the ECtHR Judgement in Anchugov and Gladkov

Published on April 26, 2016        Author: 

The amendment to the law on the Constitutional Court of the Russian Federation which came into force on 14 December 2015 gave the Constitutional Court the power to declare “impossible to implement” judgements of a human rights body on the ground that its interpretation of the international treaty provisions at the basis of the judgement is inconsistent with the Constitution of the Russian Federation. As observed by Philip Leach and Alice Donald, even if the main objective of the law was to target judgements of the European Court of Human Rights (ECtHR), its scope is wider and covers decisions from any human rights body, including the UN Human Rights Committee. No equivalent powers exist under the national jurisdiction of any other Council of Europe (CoE) member state.

Russia’s Constitutional Court has recently ruled that it was “impossible to implement” the final judgement of the ECtHR delivered on 4 July 2013 in the case of Anchugov and Gladkov v. Russia. In this case, the ECtHR held that Russia’s blanket ban on convicted prisoners’ voting rights was incompatible with the European Convention on Human Rights (ECHR). The applicants brought the case because, according to Article 32(3) of the Russian Constitution, they were ineligible to vote in parliamentary and presidential elections given their status as convicted prisoners.

This post discusses and criticises the ‘freshly exercised’ competence of the Russian Constitutional Court, in particular, from the standpoint of public international law. Read the rest of this entry…

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Killing by Omission

Published on April 20, 2016        Author: 

On Monday, the Forensic Architecture team at Goldsmith College, London, published Death by Rescue. The report exposes a rather complex set of facts, but the basic argument is as simple as it is alarming.

Operation Triton, facilitated by Europe’s border security agency, Frontex, began on 1 November 2014 and is mandated to enforce Italy’s maritime border. Triton replaced an earlier and much wider Italian Navy operation, Mare Nostrum, which began in October 2013 and was mandated to save migrant lives beyond Italy’s territorial waters. When EU officials decided on the more limited scope of Triton, they knew their decision would result in the drowning of numerous migrants. As one Frontex official wryly noted, “the withdrawal of naval assets from the area, if not properly planned and announced well in advance, would likely result in a higher number of fatalities.” But the European Commission turned a blind eye – leading to a spike in migrant deaths, which the authors, Charles Heller and Lorenzo Pezzani meticulously document.

From a legal perspective, this set of circumstances raises the question whether the migrants’ rights were violated, and if so, whether EU actors can be held legally accountable. In my view, the report exposes no illegal activity by European agents, either at the operational or at the policymaking level. Perhaps more troubling, the report raises the specter of unaccountable violence ingrained in the very structure of international law. If international law is somehow to blame for circumstances that made these utterly preventable deaths possible, then perhaps it is law itself that should be indicted.

Law of the Land, Law of the Sea

To explain what I mean by that, several rather theoretical remarks are required.

In common law countries, one of the first things law students learn is that law imposes no duties of rescue upon individuals qua individuals.  The classical jurisprudence on this includes comically macabre examples. A characteristic hypothetical describes a bystander witnessing a drowning baby. Law professors often use the initially astonishing absence of a duty of rescue to illustrate a basic tenet of legal positivism: the distinction between legal and moral prescription (or “the separation thesis”). Students are expected to adopt this distinction as a second nature. Rescuing the drowning stranger, they are comforted, is morally required. Of course, there are important exceptions to the general absence of a duty of recue. The basic point nevertheless stands: law does not impose a duty of rescue. Law does not always follow moral prescription. Read the rest of this entry…

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ECtHR Armani Da Silva v UK: Unreasonable Police Killings in Putative Self-defence?

Published on April 14, 2016        Author: 

Two weeks after the London public transport bombings of 7 July 2005, British law enforcement mistook the Brazilian electrician Jean Charles de Menezes for another suicide bomber. As he entered a subway carriage, specialist firearms officers killed him with a series of head shots in the mistaken belief that he was about to set off a bomb. The government’s Independent Police Complaints Commission determined that de Menezes was killed due to “very serious mistakes” that were avoidable. The London Metropolitan Police was prosecuted under the Health and Safety Act 1974 and convicted to pay a GBP 175,000 fine. Compensation claims by the family were settled through an ex gratia payment.

However, de Menezes’ family still brought the case to the European Court of Human Rights since none of the individual officers implicated in the killing were prosecuted. In Armani da Silva v. United Kingdom, the Court’s Grand Chamber has just held that the United Kingdom did not fail to uphold its procedural obligation under the right to life (Art. 2 ECHR) to effectively investigate the de Menezes shooting and prosecute the individual officers involved.

One of the central legal points of the judgment concerns the standards that human rights law establishes for handling killings in putative self-defence, where an attack exists only according to the mistaken belief of the law enforcement officer using force against the presumed attacker. Arguably, the Armani da Silva judgment got the standards wrong. Read the rest of this entry…

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First Report of the UN Special Rapporteur on the Right to Privacy to the Human Rights Council

Published on March 18, 2016        Author: 

In March 2015, the United Nations Human Rights Council created a new special procedure on the right to privacy, appointing its first Special Rapporteur on the topic, Professor Joseph Cannataci, in July 2015. Last week, the Special Rapporteur presented the Human Rights Council with his first report and engaged in an interactive dialogue with the Council. He also provided an outline of the main features of his report at a side event at the Council organised by Austria, Brazil, Germany, Liechtenstein, Mexico, Norway, Switzerland and the Geneva Academy of International Humanitarian Law and Human Rights with former US Ambassador to the Human Rights Council, Eileen Donahoe as the chair and myself, Carly Nyst and Faiza Patel as panellists (report forthcoming). As a first report, the Special Rapporteur acknowledges that it is still very much ‘preliminary’ (para. 3). At the same time, he provides a detailed outline of the themes he proposes to focus on during his mandate. In this blog, I reflect on the scope of the mandate, the choice of themes and suggest ways in which the Special Rapporteur might develop some of the themes during his mandate.

The Scope of the Mandate

  1. Privacy and Personality across cultures
  2. Corporate on-line business models and personal data use
  3. Security, surveillance, proportionality and cyberpeace
  4. Open data and Big Data analytics: the impact on privacy
  5. Genetics and privacy
  6. Privacy, dignity and reputation
  7. Biometrics and privacy

The number and range of themes identified is ambitious. However, in my view, the Special Rapporteur’s selection strikes a good balance between continuing to prioritise the risks to the right to privacy posed by security and surveillance and taking a wider view of the impact of big data and new technologies on human rights outside of the security context which has not received adequate attention to date. Read the rest of this entry…

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