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

Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

Published on February 21, 2017        Author: 

On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”. Read the rest of this entry…

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Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

Published on February 13, 2017        Author: 

The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. Read the rest of this entry…

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Echoes of Kadi: Reforms to Internal Remedies at INTERPOL

Published on January 20, 2017        Author: 

In November 2016, the international police body INTERPOL adopted major reforms to its internal complaints mechanism, the Commission for the Control of INTERPOL’s Files (CCF) (see the new Statute of the CCF, entering into force in March 2017 (CCF Statute)). The reforms respond to campaigning by the NGO Fair Trials (see its response), and are welcome news for practitioners. They will also be of particular interest to observers of the case-law concerning international organisations (IOs), UN sanctions and the role of international-level remedies systems as a substitute for judicial review in municipal-level courts. The CCF Statute represents a serious effort to ensure effective access to justice within INTERPOL and, thereby, justify INTERPOL’s immunity before national courts. However, as discussed below by reference to one key aspect of the new rules (disclosure of evidence), the success of these reforms depends upon their interpretation and application by the CCF itself.

The back story: IOs and the doctrine of alternative remedies

Since the second world war, sovereign states have transferred numerous tasks to IOs such as the UN and (controversially for some) the EU. By their nature, IOs cannot be governed by the national law of a single country and are granted immunity (typically in their Headquarters Agreements) from the jurisdiction of national courts. The problem arises when the IO acts in such a way as to impact on the fundamental rights of an individual: without a court to turn to, where does he seek a remedy?

The issue first arose before the European Court of Human Rights (ECtHR) in cases relating to other IOs. In Waite and Kennedy v Germany, the German employment courts had upheld such an immunity and refused to hear a claim brought by contractors against the European Space Agency (ESA). The contractors argued a breach of their right of access to a court, protected by Article 6 of the European Convention on Human Rights (ECHR). The ECtHR found that the restriction did not impair the essence of the right, in that an appeals board within the ESA offered ‘reasonable alternative means to protect effectively their rights’ (at 68-69). That is the basic principle: the IO may escape national court jurisdiction, provided it offers an alternative system ensuring access to justice. Read the rest of this entry…

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Has the European Court of Human Rights Turned a Blind Eye to Alleged Rights Abuses in Turkey?

Published on December 28, 2016        Author: 

On 8 December 2016, in the case of Zihni v. Turkey, (App. No. 59061/16) the European Court of Human Rights (hereinafter “the Court”) rejected a second application arising out of alleged violations in Turkey in the aftermath of the attempted coup on 15 July 2016.

The Court’s dismissal of the complaint for failure to exhaust available domestic remedies (Article 35 of the European Convention on Human Rights – hereinafter “the Convention”) is consistent with its 17 November 2016 decision in the case of Mercan v. Turkey (App. No. 56511/16), so it came as no surprise. In the Mercan case, the Court similarly dismissed the application, which concerned the unlawfulness, length and conditions of a judge’s pre-trial detention in the absence of any evidence.

In Zihni v. Turkey, the applicant was suspended from his duties as a school’s deputy headmaster on 25 July 2016 and subsequently dismissed from public service, together with 50,874 other civil servants, by the list appended to the Decree no. 672 on 1 September 2016, on account of his alleged “membership of, affiliation, link or connection” to terrorist organizations.

The application before the Court in Zihni cited numerous rights violations: (1) lack of access to a court (Article 6, Article 13 and Article 15); (2) no punishment without law (Article 7); (3) violation of the right to respect for his family life (Article 8); and (4) discrimination on account of his dismissal (Article 14). Read the rest of this entry…

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The Kunduz Affair and the German State Liability Regime – The Federal Court of Justice’s Turn to Anachronism

Published on December 5, 2016        Author: 

On 6 October 2016 the Federal Court of Justice (henceforth “Court”) decided on an appeal against the Higher Regional Court of Cologne’s dismissal of two actions for compensation brought against the Federal Republic of Germany (III ZR 140/15, only available in German): Abdul Hannan sought compensation for the death of two of his sons in the amount of 40.000 Euro, Qureisha Rauf, a mother of seven, sought alimentation for the death of her husband and father of her children in the amount of 50.000 Euro. The death of their relatives was the result of a fatal airstrike ordered by Colonel Klein who was in charge of the Provincial Reconstruction Team in Kunduz in the northern part of Afghanistan. The PRT was institutionally embedded in the framework of the International Security Assistance Force (ISAF). Whilst Klein was operationally subordinated to the ISAF commander and in the end the NATO Commander-in-Chief he remained within the chain of command of the German Federal Army ultimately being subject to orders of the German Ministry of Defense. The ordered strike was directed against two fuel tanks previously stolen by Taliban from PRT’s premises which were stuck in a sandbank close by. Fearing that these tanks would be used for an attack against the PRT camp Klein commanded their destruction after receiving the information of a military informant that no civilians were present at the relevant location which infrared pictures delivered by US-American fighter aircrafts seemed to support. In retrospect these assumption proved wrong: The attack led to the death of 100 to 150 people, mostly civilians who gathered around the fuel tanks out of curiosity, others were apparently forced by the Taliban to assist with the recovery of the tanks (with regard to the criminal investigation against Klein see here).

A Legal Bombshell

The lower courts were unable to find that Germany incurred liability based on Art. 34 Basic Law in conjunction with § 839 German Civil Code since the claimants failed to establish that Klein violated ius in bello norms – Art. 51, 57 of the First Additional Protocol and Art. 13 of the Second Additional Protocol to the Geneva Conventions were particualrly in question. The Court, however, went beyond that by asserting that the state liability regime does not apply with regard to actions of the German army in the context of armed conflicts per se. The Court’s finding can be considered a legal bombshell since this question has been left open within previous judgments (see the Court’s “Varvarin” judgment of 2nd November 2006, III ZR 190/05). Until now both the Court itself as well as the Federal Constitutional Court (FCC) applied an “even if” argumentative strategy in similar cases: Not explicitly deciding whether actions within armed conflicts fell into the scope of the liability regime, they limited themselves to finding that even if they did, compensatory claims would remain unsuccessful since other conditions – especially a breach of a duty on part of German state officials – were not met (see FCC, “Varvarin” decision of 3th August 2013 – 2 BvR 2660/06, 2 BvR 487/07 – available in English).

Viewed against the background of German constitutional law as well as obligations stemming from international law – especially the European Convention of Human Rights (ECHR) – this decision suffers from methodological and substantive deficiencies and is hardly tenable. Read the rest of this entry…

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Russia’s Supreme Court Rewrites History of the Second World War

Published on October 28, 2016        Author: 

Introduction and Background

On September 1 2016, exactly 77 years since the outbreak of the Second World War, Russia’s Supreme Court upheld the conviction of Perm resident Vladimir Luzgin under Article 354.1 of the Russian Penal Code ­- Rehabilitation of Nazism. Luzgin had the unpleasant distinction of being the first individual prosecuted under the new provision of the code criminalizing:

[1] Denial of facts, established by the judgement of the International Military Tribunal…, [2] approval of the crimes adjudicated by said Tribunal, and [3] dissemination of knowingly false information about the activities of the USSR during the Second World War, made publicly.

Two months earlier, Luzgin, a 38-years old auto mechanic, was fined 200,000 rubles (roughly €2,800) for reposting on the popular Russian social networking site vkontakte a link to an online article containing numerous assertions in defense of Ukrainian nationalist paramilitaries that fought during the Second World War. The basis for Luzgin’s conviction lay in the statement that unlike the nationalists, “the Communists…actively collaborated with Germany in dividing Europe according to the Molotov-Ribbentrop Pact,” and “Communists and Germany jointly attacked Poland and started the Second World War on 1 September 1939!”

In this post, we address some of the problematic aspects of this “memory law” and the Supreme Court’s decision with respect to freedom of expression in Russia; the Russian Constitution protects this fundamental right expressly, and through incorporation of international customary norms and rules embodied in the European Convention on Human Rights (ECHR), all of which the Supreme Court eschewed in its ruling. Prior to addressing the decision and its implications however, some words are in order on the drafting history of the law and its putative aims. Read the rest of this entry…

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Slovenia v. Croatia: The First EU Inter-State Case before the ECtHR

Published on October 17, 2016        Author: 

On 15 September 2016 the Government of Slovenia lodged an inter-State application against the Republic of Croatia before the European Court of Human Rights (ECtHR), related to the claims of Ljubljanska banka towards Croatian companies. Pursuant to Article 33 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), the Republic of Slovenia informed the Court that the Republic of Croatia had violated the provisions of the Convention when the latter’s judicial and executive authorities systematically undertook actions to unlawfully deny Ljubljanska banka the right to property. For a period of 25 years the bank has not been able to recover its claims from Croatian companies. The application states that this has allowed the debtors of Ljubljanska banka in Croatia to avoid repaying their debt – currently estimated to be 360 million Euro. This amount is very similar to the one Slovenian taxpayers were requested to pay after the Grand Chamber delivered its decision in Ališić two years ago, one of the largest cases in ECtHR’s history considering its massive financial implications for Slovenia’s two million population. Although one might say that the Slovenian government timed its application so as for the recent Croatian elections to pass, the date of the application was in fact more closely related to the latest decision of the Croatian Constitutional Court on the subject-matter which was adopted in March this year.

A wider legal audience, which may otherwise not be interested in Yugoslav succession issues, might nevertheless show an interest in the present case since it presents the first inter-State case before the ECtHR between two EU Member States, and also because it raises the question of potential concurrence of jurisdiction between the ECtHR and the CJEU (a topic much debated under the EU’s accession to the ECHR negotiations). Although current EU Member States have in the past been involved in mutual disputes before the ECtHR,  both contracting parties have never been EU Member States at the time of those proceedings (application by Austria v. Italy was lodged in 1960 (No. 788/60); Denmark and Sweden filed an application against Greece in 1967 (No. 3321/67 and 3323/67); while two cases of Ireland v. UK date back to 1971 and 1972 (No. 5310/71 and 5451/72)).

The application of Slovenia’s Government against Croatia is also of importance as it is an unusual case in the sense that Article 33 ECHR is being applied for the protection of interests of a legal, rather than a natural, person (e.g. the case of Georgia v. Russia (I) (No. 13255/07) concerned the alleged collective expulsion of Georgian nationals from the Russian Federation). The general public of Slovenia has for this reason responded to the news of the application with doubts as to whether legal persons could in fact be considered to have “human” rights. However, despite the fact that only Article 1 of the First Protocol to the ECHR on the protection of property expressly recognizes legal persons as recipients of fundamental rights, several other human rights in the ECHR are also granted to them. Apart from the recent application of Ukraine v. Russia, which partly attempts to protect the rights of legal persons, all other inter-State actions before the ECtHR have concerned natural persons.

As the long journey towards ECtHR’s decision in the case at hand has only just begun, this post shortly describes the background of the case.

Read the rest of this entry…

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Joint Series on International Law and Armed Conflict: Procedural Regulation of Detention 

Published on October 7, 2016        Author: 

The latest post in the Joint Series on International Law and Armed Conflict is by Lawrence Hill- Cawthorne on the procedural regulation of detention.

I am pleased to have been asked to write a short blog post to outline some of the issues I raised as a discussant for the panel on the procedural regulation of detention at the Fourth Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford this summer. This is of course an area in which we have recently seen considerable controversy and rapid developments in practice, with cases such as the Serdar Mohammed litigation (on which see here and here) and Hassan v UK (on which see here) dominating much of the recent debates.

The present post does not seek to repeat the above debates but instead it picks out a few controversial points from these much broader discussions that remain unresolved. Everything that is said here is explored in more detail in a recent book that I have written on this topic. The questions that I wish to address here are:

  1. In light of Hassan, which requires that, when making an assessment of compliance with international human rights law (IHRL) in an international armed conflict, a renvoi must be made to international humanitarian law (IHL), what controversies persist concerning:

    1. The review procedures for civilian internment and
    2. The procedural regulation of combatant internment?
  2. To what extent has the law of international and non-international armed conflict converged here?

Detention in International Armed Conflict

The Hassan judgment offered a view as to the relationship between the European Convention on Human Rights (ECHR) and IHL, reading into Article 5 ECHR the grounds and procedures governing internment under the latter regime. Though seemingly simple, the IHL rules on internment, and the European Court of Human Rights’ (ECtHR) reasoning in Hassan, leave a number of questions unanswered. Read the rest of this entry…

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UK to Derogate from the ECHR in Armed Conflict

Published on October 5, 2016        Author: 

At the Conservative party conference this week, the UK Prime Minister and her defence secretary announced that the UK will derogate from the European Convention on Human Rights in times of armed conflict. I have written before that such derogations – if appropriately used – can be a valuable tool in regulating the relationship between human rights law and international humanitarian law, by providing much needed clarity and flexibility. I hence have no problem with the principle of the idea – indeed, I have argued in particular that the dicta of some of the judges of UK’s highest courts to the effect that the ECHR cannot be derogated from extraterritorially are not to be followed. I do have a problem, however, with how this derogation idea is now being sold to the British public and for what purpose. In that regard, my comments in this post are caveated by the unfortunate fact that the specifics of the derogation plan are yet to be published – we know that there will be a ‘presumed’ derogation, but not from which rights and under what exact circumstances.

Let me first deal with the political salesmanship. To start with, there’s the usual (and forgivable) pandering – Theresa May thus opens her pitch by saying that “Our Armed Forces are the best in the world” and that her government “will ensure that our troops are recognised for the incredible job they do. Those who serve on the frontline will have our support when they come home.” Oh, please. By what metric exactly are the British armed forces “the best in the world”? By their tactical combat effectiveness? By their actual achievement of specific strategic goals (in which they’ve been constantly hampered by the underfunding, underequipping and wishful thinking on the part of their political masters)? By their compliance with the law of armed conflict? The Chilcot inquiry’s findings with respect to the armed forces’ performance in Basra do not exactly support the “best in the world/incredible job” label.

Read the rest of this entry…

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Joint Series on International Law and Armed Conflict: The Obligation to Investigate Violations of IHL

Published on September 30, 2016        Author: 

This is the third post in our joint blog series arising out of the 2016 Transatlantic Workshop on International Law and Armed Conflict.

The author writes in his personal capacity, the views expressed in this post are his own, and not those of the Royal Navy or UK Ministry of Defence.

Introduction

Understanding the parameters of a state’s obligation to investigate alleged violations of international humanitarian law is crucial to both the legitimacy of armed forces, and their military effectiveness.   If a state was unwilling, or unable, to investigate egregious behaviour by their armed forces this would not only contravene their obligations under the Geneva Conventions it may lead to investigations by the International Criminal Court for those states parties to the Rome Statute, but also attract significant opprobrium.  Equally, in planning military operations, significant resources are often required to properly investigate alleged violations of IHL.  This in turn requires trained personnel in sufficient numbers to perform this function, and robust military doctrine and national legislation to guide it.  This brief paper seeks to explore the extent of the obligation to investigate alleged violations of IHL, what constitutes a ‘compliant’ investigation, and how this requirement interacts with the obligation to investigate in international human rights law.

1. To what extent does LOAC/IHL provide an obligation to investigate alleged violations?

International Armed Conflict

Rule 158 of the International Committee of the Red Cross’s Study on Customary International Law describes the obligation of states to investigate war crimes in the following terms:

States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

The ICRC Rule 158 is reflected in numerous international instruments and supported by academic opinion. Additionally, the preamble to the Statute of the International Criminal Court recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”   Read the rest of this entry…

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