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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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The Peremptory Right of Women to Life: Why El Salvador Should Authorise Abortion for Women Who Face a Substantial Risk of Death

Published on May 16, 2013        Author: 

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE).

The Supreme Court and the authorities of El Salvador have the obligation under International Law to authorize a woman to receive a life-saving medical abortion despite the anachronistic total ban on abortion in El Salvador’s law.

“Beatriz” is the pseudonym (intended to protect her identity) of a 22-year-old woman in El Salvador who is now more than five months pregnant. The foetus she is carrying is missing a large part of its brain and skull, which means almost certain death either before or immediately after birth. The mother has been diagnosed with a number of severe illnesses, including lupus and kidney disease, and doctors say she faces a substantial risk of dying if she continues with the pregnancy, but have not yet treated her because they fear that if they end the pregnancy they might be prosecuted under the country’s total ban on abortion. Indeed, under these laws if the woman gets abortion she risks up to 50 years in prison and the doctors who perform the act up to 12! It is now almost two months since the doctors requested permission to provide Beatriz with the treatment she needs, but El Salvador’s Attorney General has said that the country’s Penal Code will be applied if Beatriz gets an abortion. The case has been brought to the country’s Supreme Court, but it has stalled for weeks. A hearing was finally expected to take place yesterday (15 May), but it was unclear whether the court will issue a final decision immediately. With each day that passes, the pregnancy poses more danger.

The case became “internationalized” on April 29, 2013, when the Inter-American Commission on Human Rights granted protection measures in order “to protect the life, personal integrity and health of “B”, asking the State of El Salvador to authorize this therapeutic abortion within 72 hours of the Commission’s letter. More than two weeks later though, El Salvador has failed to comply.

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In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala are PhD Candidates at Durham University Law School, UK.

The primary purpose of this response is to re-evaluate the jurisprudence of the European Court of Human Rights (“the Court”) on abortion, which we found to be misrepresented in Mr Puppinck’s recent EJIL: Talk! piece. Even though the Court has admittedly not recognised a general right to abortion, it has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances. While the Court may have been too shy in its push for expanded protection of women’s reproductive rights instead of having a more muscular approach, the trend is visible and is gaining momentum.  In this context, it is vital to appreciate the rulings of both domestic courts and the ECtHR on this issue in their entirety in order to have a comprehensive understanding of the current legal concerns and potential future solutions. The international human rights project seeks to provide fundamental freedoms and rights for each and all of us. Mr Puppinck’s attitude towards the ‘free will of women’ combined with his (mis)representation of abortion is not particularly constructive and his legal analysis is not sufficiently nuanced.

In the late 2012 P. and S. v. Poland case, the Court stated that Poland’s failure to protect a 14-year-old rape victim from harassment, due to her decision to have an abortion (available under Polish law in the circumstances), and the fact that legal proceedings were initiated against her for “illicit sexual relations”, amounted to violations of Art. 3 regarding inhuman and degrading treatment; of her right to privacy and family life (Article 8), to liberty and security (Art. 5 par. 1). Read the rest of this entry…

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Abortion on Demand and the European Convention on Human Rights

Published on February 23, 2013        Author: 

Director of the European Centre for Law and Justice (ECLJ), Expert at the Council of Europe. This article synthesises a section of a study on “Abortion and the European Convention on Human Rights” that will be published in the coming weeks.

The European Court of Human Rights (the Court) has issued several judgments on abortion, especially in recent years since the fundamental ruling of the Grand Chamber in A. B. and C. v. Ireland of 2010. In those cases, the Court found violations of the European Convention on Human Rights (the Convention) in specific situations where the life or the health of the pregnant woman was endangered, or when the pregnancy was the consequence of a rape. The purpose of this article is firstly to identify the rationale of the Court on the matter of abortion, and secondly to observe how it applies to the vast majority of abortions practiced, i.e. “abortion on demand”, also called on request:  abortions that are not justified by a matter of health, life or rape, but by the free will of the woman.

Through its various rulings, the Court explicitly declared that abortion is not a right under the Convention: there is no right to have an abortion (Silva Monteiro Martins Ribeiro v. Portugal) or to practice it (Jean-Jacques Amy v. Belgium). The prohibition per se of abortion by a State does not violate the Convention, (Silva Monteiro Martins Ribeiro v. Portugal see also the case of the first two applicants who unsuccessfully complained of the prohibition of abortion on demand in A. B. and C. v. Ireland), but States can allow it for the sake of competing rights guaranteed by the Convention, i.e. the life and the health of the pregnant woman. In other words, it can be said that the Court tolerates an abortion if it is justified by a proportionate motive protected by the Convention. Read the rest of this entry…

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An Easy Exam Question on the Right to Life

Published on February 8, 2013        Author: 

You are a police officer, patrolling an area known to be a favourite hunting ground of a serial killer. The killer has managed to elude all efforts to track him down so far. All you know about him is that he is a total slave to ritual, killing with a knife a single female victim on the first day of each month, and never deviating from this pattern. Today is one such day.

Today also seems to be your lucky day.  Through sheer chance you stumble into an alley where you discover what could only be the serial killer repeatedly stabbing his victim through the chest. It unfortunately wasn’t her lucky day and she expires on the spot. The killer is wearing a jacket with the words ‘Yo, I’m Dexter Morgan, serial killer’ emblazoned on the back in bright, red letters. You shout: “Stop! Police! You are under arrest. Drop down your weapon.”

Rather than drop the knife, Dexter throws it at you with lightning-fast reflexes. This being your lucky day, the knife merely grazes your forehead, but the cut starts bleeding profusely. He runs; you pursue. You chase him from corner to corner, street to street. It’s all very exciting, and would look great on screen. But he is fast; certainly faster than you (while you’re not exactly fat, your mother still calls you ‘my big boned sugarpuff’ with a mix of pride and tenderness).

You realize that you are losing him. In a few moments he will be entering a labyrinthian maze of service tunnels going underneath the city. Once he does, you will lose him for sure. You shout: “Stop, or I will shoot!” He predictably ignores you. Well, he does somehow manage to flick a finger in your general direction.

You aim your gun. You know you’ll have the time for only one shot before he enters the tunnels. The blood flowing from the cut on your forehead makes aiming difficult. Even though you are pretty handy with a gun, you think that you will probably miss if you fire at his legs, with the purpose of stopping him. If you fire at his torso, which presents a much bigger target, you will probably hit him – but also probably kill him. You steady your aim, thinking back to your training. Do you fire?

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UK Supreme Court Decides R (Smith) v SSD

Published on June 30, 2010        Author: 

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

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The European Court’s Admissibility Decision in Al-Saadoon

Published on July 3, 2009        Author: 

Today a Chamber of the European Court of Human Rights made public its admissibility decision in Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, a very important case. In brief, the facts are these: the applicants were detained by UK forces in Iraq, and first complained to English courts, and then to the European Court, that their requested transfer to Iraqi authorities would violate the non-refoulement obligations of the UK, inter alia under Art. 2 ECHR, as there was a serious risk that they would be subjected to the death penalty. The first issue to be decided in the case is whether the ECHR applies extraterritorially to the applicants, i.e. whether the applicants could be said to fall within the UK’s jurisdiction within the meaning of Art. 1 ECHR. The Chamber found that the applicants were within the UK’s jurisdiction, and declared the application admissible. But first, some background.

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The European Court on Domestic Violence

Published on June 9, 2009        Author: 

Today the European Court of Human Rights delivered an important judgment dealing with domestic violence in Turkey. The case is Opuz v. Turkey, Application no. 33401/02, 9 June 2009. The Court found violations of Articles 2 and 3 ECHR, because Turkey failed to fulfill its due diligence obligations to do all that it could have reasonably done to prevent the abuse of the applicant by her ex-husband, who also eventually murdered the applicant’s mother, despite being aware of his violent behavior. Bolder still, the Court found a violation of the prohibition of discrimination in Article 14 ECHR, as it established that domestic violence in Turkey was gender-based, and the Turkish authorities failed to suppress an atmosphere conducive of such violence, even if they had no intent to discriminate themselves. The Court awarded the applicant 30.000 euros in damages, a very significant sum in Strasbourg terms, which will hopefully serve as an incentive to Turkey and other states in Europe with similar systemic problems with domestic violence to work on improving their record.

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