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Home International Tribunals Archive for category "European Court of Human Rights"

Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

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The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Published on November 14, 2019        Author: 

 

Although one may be familiar with criticisms of the EU’s self-contained approach to its own legal system, this case of fragmentation is not limited to the EU alone. In fact, in one of the more recent cases on the docket of the European Court of Human Right (ECtHR), it was the Court’s Grand Chamber that adopted a self-contained attitude towards the interpretation of the European Convention on Human Rights (ECHR). It did so by failing to account for EU rules concerning workplace surveillance which were relevant for the interpretation of the ECHR.

In López Ribalda and Others v. Spain (Applications nos. 1874/13 and 8567/13) (the Decision), a Spanish employer installed hidden CCTV cameras as part of an investigation into ‘inconsistencies between the stock level and the sales figures’ (§12 of the Decision). The employees were not informed about the existence of such cameras (§13 of the Decision). Subsequently, some of them were filmed while stealing (or while they were aiding other people who were stealing goods from the supermarket) and were dismissed (§§14-16 of the Decision). The dismissals were challenged in the Spanish courts as the evidence used for this was obtained through an act (covert video surveillance) which (allegedly) breached the applicants’ right to protection of privacy. However the Spanish courts rejected these claims. It was considered that the employer acted in a proportionate manner, as the measures were necessary, were limited in time and were focused on the supermarket’s checkout counters (§§19-39 of the Decision). Read the rest of this entry…

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Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

Published on October 30, 2019        Author:  and

 

 

In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. Read the rest of this entry…

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The ECtHR on Disembarkation of Rescued Refugees and Migrants at Greek Hotspots

Published on October 25, 2019        Author: 

The storm-tossed question of disembarking rescued refugees and migrants

The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.

Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Published on October 8, 2019        Author: 

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 1: Grade Inflation

Published on October 7, 2019        Author: 

Part 1 of this blog post will explore how the current narratives about the implementation of ECtHR judgments paint a misleading picture. In Part 2, a different set of statistics will be examined, in order to explore how well the implementation system is really functioning.

In some countries, exam results in schools and universities are improving every year. However, many doubt that this is because the students are actually doing better in their studies. The accusation is made that, though exam marks are improving, this is the result of tests being made easier, rather than the students becoming better educated. This “grade inflation” allows schools and universities to publish better results, but without the performance behind the results actually improving.

What applies to schools and universities can also apply to international institutions.

Over the last few years, the Council of Europe has advanced a consistent narrative about the state of implementation of judgments from the European Court of Human Rights. This narrative suggests that implementation is going very well indeed. Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 

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.

Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 

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.

Read the rest of this entry…

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Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 

With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

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