In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.
Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR
On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?
To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.
In the recent judgment of the European Court of Human Rights (the Court) in Ilgar Mammadov v Azerbaijan (Mammadov 46(4)) examined under Article 46(4) infringement proceedings, the Grand Chamber found that Azerbaijan had failed to comply with the Court’s original judgment in Ilgar Mammadov (Mammadov No.1) by refusing to release political activist Ilgar Mammadov, who was arrested on politically motivated charges (in violation of a right to liberty and security under Articles 5 and the prohibition to restrict rights for purposes other than those prescribed by the Convention under Article 18 of the Convention).
This case is not only novel in being the first to be considered under infringement proceedings (see blogs by Başak Çali and Kanstantsin Dzehtsiarou), but is also highly significant for the Court’s approach to the implications of politically motivated proceedings. Until now the Court has been reluctant to clarify its position on whether trials and convictions can be explicitly held to be in ‘bad faith’ under Article 18 of the Convention. We argue in this blog that the Grand Chamber in this case (relating to Mr Mammadov’s arrest and pre-trial detention), went substantially further than the Chamber in the second case of the same applicant, Mammadov No. 2 (relating to his trial and conviction), and has paved the way for the Court to finally open the door to the applicability of Article 18 to a right to fair trial under Article 6, or risk incoherence.
The Court’s approach so far to Article 18
Article 18 of the Convention provides that ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ There is debate about whether the wording of the provision limits its applicability to ‘restricted’ rights under Articles 5 and 8-11 of the Convention (see below). Read the rest of this entry…
On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.
Greenhouse Gas Emissions and Human Rights
The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).
According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…
Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK
On 13 September 2018, the European Court of Human Rights ruled in three consolidated cases brought by 14 human rights organisations and 2 individuals against the UK government’s mass interception program and its access to the intelligence gathered by other governments, including the United States (Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.)
As noted already by Marko Milanovic, these cases are nuanced, complex, and long. I intend to focus here on one aspect, namely the way the Court assessed the intelligence sharing claim brought by the applicants (paras 416-449.) This assessment is noteworthy as that claim presents an issue of first impression for the Court. As the judgment itself notes, “this is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime” (para 416). (It is worth noting, however, that the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08 also touches upon this issue.)
The applicants’ intelligence sharing claim centred on the revelations, contained in disclosures by Edward Snowden, that the UK government has access to information collected by other foreign intelligence agencies, and most notably the U.S. National Security Agency (NSA). In particular, these revelations suggest that the UK government has direct and unfettered access to raw data intercepted by other governments, which it can then filter, store, analyse and further disseminate. They further suggest that the UK government has similarly broad access to information stored in databases by other governments.
From a human rights law perspective, the fundamental question raised in this case is the nature of the interference and therefore the applicable test to apply to such interference. Read the rest of this entry…
Last week the European Court of Human Rights issued a highly anticipated blockbuster Chamber judgment in Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.
This is the first mass electronic surveillance case to be decided against the UK after the Edward Snowden revelations, and it touches upon numerous issues. The judgment is nuanced, complex, and long. It addresses key questions such as the proportionality of bulk interception programmes much more directly and with greater sophistication than the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08, which was decided by a different Chamber while this case was being deliberated, and which also upheld a bulk surveillance programme (see here for Asaf Lubin’s take on Just Security).
The judgment is too rich to summarize easily, so I will only set out some key takeaways (for an extensive discussion on surveillance and privacy in the digital age, see my 2015 Harvard ILJ piece).
First, and most importantly, the judgment is a mixed bag for privacy activists: while the Court finds that the UK’s surveillance programme under the now-defunct Regulation of Investigatory Powers Act (RIPA) was deficient in important respects and in violation of Article 8 and 10 of the Convention, it at the same time normalizes such mass surveillance programmes. In particular, the Court decided that bulk interception programmes are not categorically disproportionate, as privacy activists have argued. Second, in a similar vein, the Court finds that prior judicial authorization is not indispensable for the legality of bulk interception, again contrary to what privacy activists have argued, even if prior judicial authorization could be seen as best practice (note that under the new 2016 Investigatory Powers Act the UK has moved to a double-authorization system which involves both a minister and an independent quasi-judicial commissioner).
Here are the key paragraphs (warning – extracts from the judgment make this a lengthy post):
Asylum seekers in European Union countries will no longer be subject to psychological tests to prove their homosexuality, according to a decision by the European Court of Justice (ECJ) on 25 January 2018. In F v. Bevándorlási és Állampolgársági Hivatal, the ECJ declared the illegality of the use of psychological reports based on projective personality tests in determining sexual orientation of asylum seekers.
The asylum applicant, a Nigerian man identified as F, sought asylum in Hungary, arguing that he has a well-founded fear of persecution because of his homosexuality. The Bevándorlási és Állampolgársági Hivatal (Office for Immigration and Citizenship of Hungary, hereinafter “Immigration Office”) rejected his asylum application. While the Immigration Office concluded that F’s application was not “fundamentally contradictory,” the Immigration Office found that F’s statement about his homosexuality “lacked credibility” based on one psychologist’s report (para. 22). F appealed this decision to a Hungarian court, and the case was eventually referred to the ECJ.
The “expert report” at issue in the case was produced by a psychologist after an investigative examination, which involved several basic projective personality tests, including the “Draw-A-Person-In-The-Rain” test and the Rorschach and Szondi tests. Upon completing the tests, the psychologist concluded that F’s homosexuality could not be confirmed.
The ECJ ruled that EU law does not prohibit authorities or courts from ordering the production of an expert report to help assess the facts and circumstances relative to an asylum seeker’s claim, but only if the production of the report is consistent with human rights law and the report is not relied upon solely or conclusively. The Court further held that EU law precludes the preparation and use of a psychological expert’s report based on projective personality tests to determine an individual’s sexual orientation when assessing an asylum claim sought by the individual on the ground of sexual orientation. Read the rest of this entry…
On 9th January 2018, the IACtHR issued Advisory Opinion No. 24 on gender identity, equality and non-discrimination for same-sex couples, a ground-breaking decision for the advancement of LGBTI rights in the Americas. However, the adverse effect it had on the recent presidential elections in Costa Rica may jeopardise this achievement.
The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:
- Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
- If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
- According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
- Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
- If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?
In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. Read the rest of this entry…
Barbulescu v Romania: Why There is no Room for Complacency When it Comes to Privacy Rights in the Workplace
For some privacy advocates, the decision earlier this month of the Grand Chamber of the European Court of Human Rights (ECtHR) in Barbulescu v Romania was another milestone in the pursuit of greater protection for employee privacy. Reversing a decision of the Fourth Section last year, the Court held that the monitoring of an employee’s Yahoo Messenger account breached his right to respect for private life in Article 8. While it would be churlish to contradict such claims, this is no time for complacency.
Mr. Barbulescu was a sales engineer working for a private company in Romania. The company in question prohibited the use of its equipment (including the internet) for personal use – a policy it robustly enforced with dismissals for transgressors – facts which Mr. Barbulescu was made aware of. At his employer’s request, Mr. Barbulescu opened a Yahoo Messenger Account in order to communicate with customers. He was subsequently told that this account had been monitored, revealing that it had been used for personal purposes. When Mr. Barbulescu denied this claim, he was presented with a transcript of the content of his messages. These included exchanges with his brother and his fiancé, some of which were of an intimate nature. Mr. Barbulescu was fired. He challenged his dismissal in the domestic courts alleging that it breached his right to private life. Those claims were dismissed and Mr. Barbulescu brought his case to Strasbourg. Read the rest of this entry…
On 25 July 2017, the ECtHR delivered an important judgment on discrimination, condemning ageist and sexist assumptions made in the reasoning of the domestic court. In this post, I will share my observations about the novelty of the case and its contribution to the case-law of the ECtHR.
Facts and Judgment in short
The applicant, suffering from a gynaecological disease, underwent surgery during which her left pudendal nerve was injured as a result of medical malpractice. Following discharge from hospital, she began to experience intense pain and loss of sensation in the vagina, urinary incontinence, difficulty walking and sitting, and she could not have sexual relations. In the lawsuit she filed, the Lisbon Administrative Court awarded her a sum of compensation for pecuniary damage, covering inter alia the service of a maid for household tasks which she was unable to carry out, and non-pecuniary damages for the physical and mental suffering she experienced. However, at the appeal, the Supreme Administrative Court (Hereinafter: SAC) reduced the amounts awarded for both pecuniary and non-pecuniary damages on account of three reasons set out as the following:
- The applicant’s complaints had only been aggravated following the surgery but they were not new;
- She probably only needed to take care of her husband, given the age of her children, and did not require a full-time maid; and
- The applicant, who had two children, was already 50 years old, an age when sex was not as important as in younger years and that its significance diminished with age.
In its judgment, the Strasbourg Court drew similarities between the applicant’s case and two other judgments concerning medical malpractice experienced by two men at the ages of 55 and 59, who became impotent and incontinent as a result of medical error in operations they underwent. The ECtHR observed that in those judgments, the SAC did not find the amounts awarded excessive, considering the “tremendous shock” or “strong mental shock” experienced by plaintiffs who would suffer irreversible consequences to their sex lives. Contrary to the applicant’s case, the SAC had taken into account neither the plaintiffs’ age nor whether they had any children in these similar cases.
In the decision the ECtHR stated that the general assumption relied on by the domestic court that sexuality was no longer important for a fifty-year-old woman derived from the traditional understanding of female sexuality, essentially linked to reproduction. The Court also noted the patriarchal understanding of the Supreme Court revealed by the assumption that the applicant was responsible to “take care of her husband”. The ECtHR found that the Supreme Court’s decision was not based on objective assessment of facts but on the wrongful gender stereotyping and eventually, by five votes to two, decided that there was a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private life). Read the rest of this entry…