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

The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life”

Published on March 25, 2014        Author: 

In the decision of Vallianatos and others v. Greece (No. 29381/09 and 32684/09) delivered on 7th November 2013, the European Court of Human Rights (the Court) considered that two adult men living separately should benefit from the protection granted to families in the particular case where they maintained a stable homosexual relationship. On this occasion the Court affirmed that, from now on, when a European State legislates as regards the family, it “in its choice of meansmust necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (§ 84). The Court thus ensures that European States adapt their legislation to (its own perception of) the evolution of morals. This decision marks a new stage in the accelerated dissolution of the legal definition of the family which from a biological and institutional reality has become a concept which is flexible to the point of inconsistency.

The family constituted by marriage and/or children

The European Convention on Human Rights (the Convention) protects “private and family life” in the same provision (Article 8), along with the home and correspondence. However, the Court has progressively distinguished the protection of private life from that of family life. Private life is a broad concept which does not lend itself to an exhaustive definition. The essential goal of the protection afforded by it is to protect the individual from the arbitrary interference of the authorities and it may in addition create positive obligations inherent in an effective “respect” for private life (Olsson v. Sweden, No. 10465/83, 24.03.1988). As for the protection of family life, it focuses primarily on the relationship between children and their parents. Read the rest of this entry…

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Ukraine, Russia and Crimea in the European Court of Human Rights

Published on March 19, 2014        Author: 

Much has been written recently about the legal ramifications of events in Ukraine, but there was a new development last week when the European Court of Human Rights granted interim measures in an inter-state case brought by Ukraine against Russia. The case was lodged on 13 March, and on the same day the Strasbourg Court issued an interim measure (under rule 39) indicating that the Russian government should ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.

The decision was taken by the President of the Third Section of the Court, the Andorran judge, Josep Casadevall. Judge Casadevall went further in calling on both Ukraine and Russia to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the European Convention on Human Rights, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention. Both states are obliged to inform the Court as soon as possible of the measures they have taken in response.

In spite of the Convention preamble’s exhortation to state parties to ensure its collective enforcement, the inter-state case procedure in Strasbourg remains a rarity. It may come as little surprise that Russia has been the respondent in the three most recent such cases, each of which has been brought by Georgia. Georgia v Russia (I) relates to the arrest and detention of the Georgian immigrant population in Russia in September 2006, following the arrest in Tbilisi of four Russian service personnel on espionage charges. More pertinently to the current events in Ukraine, Georgia v Russia (II) concerns the August 2008 conflict in South Ossetia and Abkhazia, in which Russia claims to have been defending the civilian population (Russian citizens who had been granted passports) in both regions against Georgian attacks (there are also at least 2,000 individual applications pending against one or other (or both) states). A third case brought by Georgia, relating to the detention of four Georgian minors in South Ossetia, was withdrawn after they were released in December 2009, following missions to the region by the Commissioner for Human Rights.

Read the rest of this entry…

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Business and Human Rights Law in the Council of Europe: Noblesse oblige

Daniel Augenstein

Daniel Augenstein

Nicola Jägers

Nicola Jägers

Willem van Genugten

Willem van Genugten

Daniel Augenstein is Assistant Professor at Tilburg Law School. Willem van Genugten is Professor of International Law at Tilburg Law School and at the North-West University in South Africa (extraordinary chair). He also is President of the Royal Netherlands Society of International Law. Nicola Jägers holds the chair of international human rights law at Tilburg Law School and is also Commissioner at the Netherlands Institute for Human Rights.

In January 2013, the Committee of Ministers of the Council of Europe (CoE) instructed its Steering Committee for Human Rights (CDDH) to elaborate a political declaration supporting the UN Guiding Principles on Business and Human Rights (UNGPs), and a non-binding instrument addressing gaps in the implementation of the UNGPs at the European level. This post discusses the evolution of “business and human rights” and the reception of the UNGPs in the Council of Europe. It draws attention to significant differences in policy approach between the CoE’s Parliamentary Assembly and its Committee of Ministers. It then places the discussed policy developments in the context of the CoE’s own key legal human rights instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). We highlight three areas in which the CoE is well-placed to make an important contribution to addressing the detrimental impacts of global business operations on international human rights protection: the interdependency and interaction between civil and political and social and economic rights; state obligations to respect and protect human rights in relation to corporate violations; and the extraterritorial application of international human rights law.

Business & Human Rights in the CoE’s Parliamentary Assembly

CoE activity on business and human rights dates back to 2009, when the Parliamentary Assembly adopted Recommendation 1858 on private military and security firms and the erosion of the state monopoly on the use of force. This was followed, in 2010, by the more general Resolution 1757 and Recommendation 1936 on human rights and business, which among other things highlighted legal protection gaps in the ECHR regarding human rights violations committed by private corporations. Read the rest of this entry…

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Jones v UK: On analogies and inconsistencies in the application of immunity rules

Published on January 21, 2014        Author: 

Micaela Frulli is Associate Professor of Public International Law at the University of Florence, Italy.

As Philippa Webb and Lorna McGregor have already outlined in their EJIL Talk! Posts, the ECtHR in Jones and Others v the United Kingdom  seems to have based its reasoning on the assumption that State immunity always shields State officials from civil proceedings before a foreign court and, as a consequence, it did not take into consideration the existence of different kinds of immunities accruing to the State and to its officials. The acknowledgment of a complete correspondence between State immunity and the immunity of State officials – and the reconfirmation of Al-Adsani which however only concerned State immunity – is unfortunate precisely because it does not take into account the possible existence or  development of different and autonomous rules regulating the immunity of State officials and the immunity of the State itself, at the very least with reference to cases where international crimes were committed and which entail a dual responsibility, as Lorna has stressed. It is worth fleshing out a few considerations on analogies and inconsistencies in the application of immunity rules in this area.

It is generally agreed – albeit from very different theoretical perspectives – and supported by considerable case-law, that functional immunity cannot apply in cases where State officials have allegedly committed international crimes, neither before a domestic nor before an international criminal court. On the other hand, according to the prevailing opinion (upheld by the ICJ in the Jurisdictional Immunities Judgment), the State on whose behalf the accused official was acting enjoys immunity from the civil jurisdiction of foreign States for the very same crimes. There is an inherent contradiction in the current ‘state of the art’ concerning the application of immunity rules – as underlined by the Institut de Droit International in its Resolution adopted in September 2009. A State official may not invoke official capacity as a defence, justification or excuse in a criminal trial before a competent tribunal of a foreign State, whereas the State on which behalf he or she has acted – that could have tolerated, authorized or even organized the commission of the alleged crime – may call upon respect for its sovereignty not to be subject to civil proceedings before the courts of a foreign State. States always emphasize that domestic courts are not the appropriate forum for adjudicating State responsibility and that immunity from foreign jurisdiction does not absolve States from their responsibility. However, we have witnessed too many cases where no interstate forum was available nor there were alternative avenues for the victims. Read the rest of this entry…

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Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 

Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening)On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013).  The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it.  However, I speculated that we did not have certainty yet on two issues:

1)      whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and

2)      whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.

The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.

A Lack of Alternative Means to Resolve the Complaint

In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-AdsaniIn that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44).  However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).

The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1).  It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully.  Read the rest of this entry…

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Jones v UK: The re-integration of State and official immunity?

Published on January 14, 2014        Author: 

Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).

As regards the immunity of the State, the 6-1 decision in Jones and Others v the United Kingdom to uphold the immunity of Saudi Arabia was to be expected: in the Jurisdictional Immunities Judgment, the principal judicial organ of the UN clearly stated that that there was no exception to State immunity for jus cogens violations. The Fourth Section of the ECtHR felt no need to examine national developments in detail as the ICJ Judgment must be considered as ‘authoritative as regards the content of customary international law’ (para 198).

The razor-thin majority of the Grand Chamber in Al-Adsani 13 years ago has now been buttressed by both the ICJ and the Fourth Section of the ECtHR.

But the decision in Jones to uphold the immunity of the State officials even in the face of allegations of torture is more surprising. It stretches the meaning of the ICJ Jurisdictional Immunities Judgment and goes against two emerging trends: (1) accountability of non-high ranking State officials for serious human rights violations; (2) the diversification of various forms of immunity. Let me take these issues in turn.

Accountability of State officials for torture

As the ECtHR Chamber acknowledges (para 92), the ICJ emphasised in the Jurisdictional Immunities Judgment that it was addressing ‘only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether and to what extent immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91 of the ICJ Judgment). Yet, the ECtHR followed the ICJ’s Judgment with respect to the immunity of State officials as well as that of the State. In its 2012 Judgment, the ICJ had been silent as to immunity of a State official from civil proceedings, but it was clear that the Judgment was focused on the State itself and arguably even limited to ‘acts committed on the territory of the forum State by the armed forces of a foreign State … in the course of conducting an armed conflict’ (para 65). Read the rest of this entry…

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European Court of Human Rights Upholds State Immunity in Case Involving Allegations of Torture – Jones v United Kingdom

Published on January 14, 2014        Author: 

Today, a chamber of the European Court of Human Rights has handed down its judgment in the long awaited case of Jones and others v. United Kingdom (application no. 34356/06 & 40528/06). The case concerned the UK House of Lord’s decision ([2006] UKHL 26)  to accord state immunity in civil proceedings brought in the UK, against Saudi Arabia and Saudi Arabian officials, by British nationals who alleged they had been tortured in Saudi Arabia. The European Court of Human Rights has today upheld that decision of the House of Lords. The chamber of the Court held by six votes to one that the granting of immunity to Saudi Arabia and its state officials in civil proceedings reflected generally recognised rules of public international law. Therefore, dismissal of the case by the English courts on grounds of state immunity did not amount to a violation of Article 6 (1) of the European Convention on Human Rights which guarantees a right of access to court. In particular, the Chamber held that there was noaccess to court.

According to the Chamber, while there was some emerging support at the international level in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged a state’s right to immunity could not be circumvented by suing named officials instead. The decision picks up from where the International Court of Justice left off in Jurisdictional Immunities (Germany v. Italy) case in deciding that allegations of violations of jus cogens rules does not mean that state immunity becomes inapplicable. However, the European Court of Human Rights has also stated that in the light of the current developments in this area of public international law, this was a matter which needed to be kept under review by Contracting States.

EJIL:Talk! and Opinio Juris will be providing reactions to this decision over the coming days. Here on EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case. Over at Opinio Juris,  Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary from across the pond. All of them have done brilliant work on immunity and all have written influential pieces on the relationship between immunity and human rights. A stellar line up indeed!

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“You Can’t Change the Meeting Place” – Khodorkovsky, Bad Faith, and the European Court of Human Rights

Published on January 6, 2014        Author: 

Julian LehmannJulian Lehmann is a research associate at the Global Public Policy Institute in Berlin, Germany and a SJD candidate at Dresden University of Technology.

“Ten Years a Prisoner”

Mikhail Khodorkovsky (pictured right, credit), the former Russian business magnate and opposition sponsor was released from prison under a presidential pardon in late December – just two months after he had  commemorated the ten year anniversary of hisMikhail_Khodorkovsky_2013-12-22_3 imprisonment. The images of the tycoon fallen from favor into the dock for many had became symbols for political interference with courts.  Regardless of whether one clings to such symbolism, judicial independence in Russia still leaves much to be desired, not least according to the UN Special Rapporteur on the independence of judges and lawyers.

Khodorkovsky and his associate Platon Lebedev are the most prominent alleged victims of political imprisonment. As many will recall, Khodorkovsky was arrested in 2003 and convicted in 2005 for tax evasion in the turbulent 1990s. Then, he sold produce of his oil and resource company Yukos to alleged sham Russian firms registered in low tax zones. He was put on trial again in 2010. Vladimir Putin, pending Khodorkovsky’s appeal, bragged in a TV interview that ‘a thief must sit in jail’. He alluded to a phrase from the popular Soviet TV mini-series ‘You Can’t Change the Meeting Place’ – a detective story featuring the dissident artistic icon Vladimir Vysotsky. The title takes up the series’ final, in which Vysotsky suggests that he and his fellow policemen have no choice but to go for a plan that puts their abducted colleague at risk.

Putin omitted the second half of the film’s citation. Vysotsky, the old-school hot rock, repeatedly clashes with his fastidious partner over the choice of means for policing. Not shying away from breaking the law, Vysotsky states that ‘A thief must be in jail – and people are not interested in how I get them there.’

Putin’s candidness about his view on Khodorkovsky hasn’t gone unnoticed. Read the rest of this entry…

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Banning Niqabs in Public Spaces

Published on December 6, 2013        Author: 

Erica Howard

Dr Erica Howard is reader in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

 

Recently the wearing of the niqab, the face-covering veil worn by some Muslim women, has been in the news again after the judgment on the wearing of the niqab by a defendant in criminal proceedings (R v D(R), 16/09/2013, judgment H.H. Judge Peter Murphy). In this case, Judge Murphy applied Article 9 of the European Convention on Human Rights 1950 (ECHR). He accepted, following the case law of the European Court of Human rights (ECtHR) on Article 9 ECHR (see, for example, Eweida and Others v the UK; Dahlab v Switzerland and Sahin v Turkey), that the wearing of the niqab was a manifestation of the defendant’s religion and that her right to manifest her religion had been interfered with. He then examined whether the restriction was justified under Article 9(2) using a proportionality test, balancing D’s right to manifest her religion against the interests of justice in conducting a fair trial for everyone involved.

So Murphy followed the approach of the ECtHR. But will the ECtHR do the same in the case of S.A.S. v France, which challenges the French legislation prohibiting the wearing of face-covering clothing in all public spaces? The case was heard by the Grand Chamber on 27 November 2013, after the Chamber, in May 2013, relinquished jurisdiction to the Grand Chamber (for a summary of this hearing see here). It is, at present, not known when the judgment in this case will be published.

S.A.S., a devout Muslim who wears the niqab in accordance with her religious faith, culture and personal convictions, was fined for wearing the face covering veil in public and claims a violation of a number of her rights under the ECHR, including her right to manifest her religion under Article 9. As, in my view, Article 9 is the most important and relevant for this case, I will only discuss this article here. Read the rest of this entry…

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Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?

Published on December 4, 2013        Author: 

SanctionsUN member states remain caught between the obligation to carry out Security Council decisions under Art. 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The chamber judgment of 26 November 2013 in Al-Dulimi, No. 5809/08, is the second decision of the European Court of Human rights (ECtHR) on targeted sanctions after Nada (ECtHR (Grand Chamber), Nada v. Switzerland, No. 10593/08, judgment of 12 Sept. 2012). In contrast to the constellation in Nada, the UN member states (here Switzerland) had no leeway at all to implement the Iraq sanctions imposed by UN SC Res. 1483. However, because the UN sanctions regime did not guarantee “equivalent protection”, the Bosphorus-presumption that the states’ implementing measures are in conformity with the European Convention of Human rights (ECHR) did not apply – in other words, it did not help the state that it had no leeway. Strasbourg examined in full whether Art 6 ECHR had been lawfully restricted by Switzerland and found that this was not the case. On the contrary, the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-Dulimi’s complaint (with a view to Art. 103 UN Charter), had undermined the very essence of Art. 6 ECHR and therefore Switzerland violated the Convention.

By insisting on full responsibility of ECHR members for violations of the Convention, independently of their “strict” obligations under Security Council resolutions, Strasbourg has in Al-Dulimi stabilized the catch-22-situation. This blog post argues that member states should not be left off the hook, but also calls for responsibilizing the United Nations. Read the rest of this entry…

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