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

Turkey’s Derogation from the ECHR – What to Expect?

Published on July 27, 2016        Author: 

In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR).  So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).

Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.

Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.

Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Read the rest of this entry…

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The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

Published on June 30, 2016        Author: 

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

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Grand Chamber Judgment in Al-Dulimi v. Switzerland

Published on June 23, 2016        Author: 

This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.

By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.

So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:

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Snippets on the UK and the ECHR

Published on May 18, 2016        Author: 

Some brief notices on the UK, the ECHR, the planned repeal of the UK’s Human Rights Act and its replacement with a British Bill of Rights that our non-UK readers in particular might find of interest: almost all is quiet on the Western front, but not quite. From today’s Queen’s Speech in Parliament we could only learn that the Government still plans to scrap the HRA and replace with the British Bill of Rights, but we still have no inkling about what exactly that would entail and when. Basically the whole matter is on hold at least while Britain ponders Brexit, and even then it is likely that the new Bill (after extensive consultations) will not make radical changes to the existing HRA framework, other than for appearances’ sake.

Cambridge’s Mark Elliott has more, as does Rightsinfo. Also at Rightsinfo, Adam Wagner and Rebecca Hacker have an excellent post with a bit of colourful statistics showing just how gentle Strasbourg has been to the UK in recent years – which demonstrates not only how much damage the UK has inflicted on the ECHR system over very little real-world intrusion in its affairs, i.e. mostly for petty domestic politics, but perhaps also how (regrettably? consciously?) responsive Strasbourg can be to some state-administered spanking.

Finally, readers might be interested in a new website/blog launched by the estimable Conor Gearty of the LSE, who has a forthcoming book with OUP on the relationship between Britain and Strasbourg, On Fantasy Island. Conor will blog with excerpts from the book, working his way through its main themes: the fantasies, the facts, and the future.

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UK Investigatory Powers Tribunal Rules that Non-UK Residents Have No Right to Privacy under the ECHR

Published on May 18, 2016        Author: 

In another major development on the surveillance/privacy front, on Tuesday the UK specialized surveillance court, the Investigatory Powers Tribunal, ruled that persons not present within the United Kingdom are not within the jurisdiction of the UK in the sense of Article 1 of the European Convention on Human Rights, and accordingly do not have any of the rights under that Convention (para. 49 et seq). In other words, a person in say France or the United States subjected to surveillance by GCHQ does not have an ECHR right to privacy vis-a-vis the UK, which accordingly has no Convention claim to answer. This is I think the first time that a British court has expressly dealt with extraterritoriality in the surveillance context. The IPT’s reasoning essentially rests on a Bankovic analogy – if you are in say Serbia and the UK drops a bomb on you, the Strasbourg Court has said that you don’t have the right to life. How could you then have the right to privacy if all the UK did was to simply read your email while you were in Serbia?

I have extensively argued elsewhere why that analogy is wrong (as is Bankovic itself), so I won’t belabour that point further (see here and here). It was entirely predictable that the IPT would adopt this restrictive position, which is perfectly plausible under Strasbourg case law (even if fundamentally mistaken). The IPT was correct in ruling, however, that distinctions as to the Convention’s applicability can’t really be made on the basis of whether the person is present is some other Council of Europe state, or is outside the ECHR’s espace juridique altogether. Anyway, the issue of the Convention’s extraterritorial applicability to mass electronic surveillance abroad is one for Strasbourg to decide and (hopefully) fix, and it will have the opportunity to do so in these cases and others. What the Court will do is of course anyone’s guess, because its decision will inevitable have ripple effects on other scenarios, such as extraterritorial uses of lethal force, e.g. drone strikes.

I have also argued, however, that there is particular scenario in which the applicability of the Convention becomes more attractive (or less dangerous as a matter of policy) – when the surveillance actually takes place within the surveilling state’s territory, even if the affected individual is outside it. Imagine, for example, if the UK police searched my flat in Nottingham while I was visiting family in Serbia – surely I would have Article 8 rights, even though I would not be on UK territory when the search took place. Why then should I not have these rights if an email I send while I am in Serbia is routed through my university server in Nottingham and intercepted by GCHQ there? In both cases the intrusion into privacy happens on the UK’s territory, even if I am outside it. In fact, in its judgment the IPT briefly addresses this scenario, if all too briefly and less than convincingly, although I’m not sure that the point was extensively argued.

In any case, the main paragraphs on the jurisdiction issue are below the fold. The judgment also deals with the very important question of standing/victim status, finding that all but six of the 600+ claimants lacked locus standi even under a very low threshold of showing that they are ‘potentially at risk’ from surveillance measures (applying the European Court’s recent Zakharov judgment, para. 171).

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Silencing the Canary: the lawfulness of the U.K. Investigatory Powers Bill’s secrecy provisions under the ECHR

Published on May 17, 2016        Author: 

Following the Snowden revelations in 2013 concerning the complicity of the tech industry in widespread electronic government surveillance in the U.S., tech companies have individually and collectively become increasingly active as advocates of privacy and free speech rights, culminating in legal challenges to government electronic surveillance.

Since the dropping by the U.S. Department of Justice (DOJ) of its much publicised writ against Apple, which sought to compel Apple to hack the security key code system of the Apple iPhone 5, the battle between tech companies and the DOJ over privacy and encryption in the U.S. has taken another turn.  In April, Microsoft filed a suit in the District Court of Seattle against the DOJ challenging the ‘secrecy order’ provisions (a range of anti-tipping off and gagging powers) under the Electronic Communications Privacy Act (ECPA).

With the Investigatory Powers Bill (IPB), which contains similar secrecy requirements, currently being debated before the U.K. Parliament, the U.S. case provides fair warning of possible human rights challenges tech companies may bring against the U.K. government. This post will consider the implications of the Bill’s secrecy provisions in light of the rights of tech companies under the European Convention on Human Rights (ECHR).

The Microsoft – DOJ claim                                                 

In short, the ECPA allows a U.S. government agency to apply to the Court for a warrant requiring Microsoft, or any other internet company, to hand over their customers’ private data. In addition, an order can be made by the court preventing the company from publicising the fact that they have been required to disclose the data. Read the rest of this entry…

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The Russian Constitutional Court and its Actual Control over the ECtHR Judgement in Anchugov and Gladkov

Published on April 26, 2016        Author: 

The amendment to the law on the Constitutional Court of the Russian Federation which came into force on 14 December 2015 gave the Constitutional Court the power to declare “impossible to implement” judgements of a human rights body on the ground that its interpretation of the international treaty provisions at the basis of the judgement is inconsistent with the Constitution of the Russian Federation. As observed by Philip Leach and Alice Donald, even if the main objective of the law was to target judgements of the European Court of Human Rights (ECtHR), its scope is wider and covers decisions from any human rights body, including the UN Human Rights Committee. No equivalent powers exist under the national jurisdiction of any other Council of Europe (CoE) member state.

Russia’s Constitutional Court has recently ruled that it was “impossible to implement” the final judgement of the ECtHR delivered on 4 July 2013 in the case of Anchugov and Gladkov v. Russia. In this case, the ECtHR held that Russia’s blanket ban on convicted prisoners’ voting rights was incompatible with the European Convention on Human Rights (ECHR). The applicants brought the case because, according to Article 32(3) of the Russian Constitution, they were ineligible to vote in parliamentary and presidential elections given their status as convicted prisoners.

This post discusses and criticises the ‘freshly exercised’ competence of the Russian Constitutional Court, in particular, from the standpoint of public international law. Read the rest of this entry…

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Ukraine vs. Russia in International Courts and Tribunals

Published on March 9, 2016        Author: 

In early January 2016, Ukraine affirmed its intention to bring a claim against Russia before the ICJ under the International Convention for the Suppression of the Financing of Terrorism (‘Financing of Terrorism Convention’). Further announcements were made in late January and February 2016 as to both an additional claim in the ICJ under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and a claim under the United Nations Convention on the Law of the Sea (UNCLOS). This post provides a brief overview of pending and prospective cases originating from the conflict between Russia and Ukraine.

Cases pending before international court and tribunals

Ukraine is currently seeking to challenge Russia’s actions on its territory in the European Court of Human Rights and the International Criminal Court. Three inter-State cases initiated by Ukraine concerning Russia’s actions in Crimea and Eastern Ukraine are currently pending before the ECtHR (the first inter-State case by Ukraine against Russia was discussed here). In September 2015, Ukraine also lodged a Declaration under Article 12(3) of the Rome Statute of the International Criminal Court recognising its jurisdiction with respect to the acts committed on its territory since 20 February 2014. It is true that acceptance of the jurisdiction of the ICC by Ukraine may not necessarily lead to the prosecution of Russian citizens fighting in the Eastern Regions. It is, nonetheless, another avenue used by Ukraine to put the conflict between the two States before international judges.

Russia’s actions in Crimea and Eastern Ukraine have also resulted in individual cases brought against Russia at the international level under international human rights law and international foreign investment law. As of October 2015, more than 1,400 applications seemingly related to the events in Crimea or Eastern Ukraine, lodged against both Russia and Ukraine or against one of those States, are pending before the ECtHR.

Several cases were initiated before the PCA against Russia under UNCITRAL rules apparently concerning investments located in Crimea. One of these cases, for instance, concerned interference with property situated in Crimea. Incidentally, in reply to the commencement of the arbitral proceedings in this case, Russia sent a letter stating that it did not recognise the jurisdiction of the arbitral tribunal. Despite Russia’s request not to regard the letter as consent to participation in arbitral proceedings, Read the rest of this entry…

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Russia Defies Strasbourg: Is Contagion Spreading?

Published on December 19, 2015        Author: 

These are undoubtedly troubled times for the European human rights system. We have written previously about the risks that the toxic anti-Strasbourg rhetoric from certain quarters in the UK (frequently, but not exclusively, focused on the question of prisoner voting rights) might have contagious consequences further afield. In his memorandum to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill in October 2013, Council of Europe Human Rights Commissioner Nils Muižnieks issued an ominous warning that continued non-compliance with the Hirst and Greens judgments:

‘…would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system’.

Ed Bates has recently linked the UK Government’s inaction with the failure to implement cases such as Ilgar Mammadov v Azerbaijan, which concerned the politically-motivated prosecution of an opposition politician, as a result of which the Committee of Ministers has called for his release: ‘It seems hard to resist the conclusion that the continued failure to implement Hirst…saps the Convention’s authority…’

Minister for Human Rights Dominic Raab was unrepentant, arguing that it was a ‘matter of democratic principle’ to maintain the ban on prisoner voting ‘for the foreseeable future’. The next examination of the case by the Committee of Ministers may now be up to a year away.

The uncertainty over the UK’s position vis-à-vis the European Convention on Human Rights (ECHR) will linger into the new year, because of the further delays in the publication of the government’s proposals for a ‘British bill of rights’ and its continuing equivocation. When asked recently (of all days, on human rights day…) whether the government would rule out introducing legislation that would ‘purport to relieve’ the UK from its obligation to comply with Strasbourg judgments – as proposed in the Conservative Party consultation document released by former Justice Secretary Chris Grayling – the Minister of State, Lord Faulks, replied: ‘While we want to remain part of the ECHR, we will not stay at any cost’.

David Cameron had also previously refused to rule out withdrawal. Read the rest of this entry…

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The Continued Failure to Implement Hirst v UK

Published on December 15, 2015        Author: 

It is over a decade now since the European Court of Human Rights delivered Hirst v United Kingdom (6 October 2005), ruling that the UK’s blanket (legislative) ban on convicted prisoners voting breached Art 3 of Protocol 1 to the European Convention on Human Rights (hereafter, the ‘Convention’). Five years ago, in Greens and MT v UK (23 Nov 2010), the Court ordered the UK to table Convention-compliant legislative proposals to secure compliance with Hirst. This resulted in a Report of a special Joint Committee of the UK Parliament (the Report of the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill (16 December 2013)), which concluded that the law reform required to secure compliance with the Convention was comparatively minor and agreed that there were sound reasons to amend the law and proposed specific ways forward.

Two years on and the UK government has done no more than acknowledge the Report, which Parliament has not considered. With the law still not amended, on 9 December 2015 a further milestone in the chronology of prisoner voting saga occurred when the Committee of Ministers passed a second interim resolution highly critical of the UK’s inaction. The Daily Telegraph has reported this as a victory for the UK, although, in fact, the Committee of Ministers will return to the matter in December 2016.

This post discusses and criticises the reasons for inaction and non-compliance supplied by the Michael Gove (Lord Chancellor and Secretary of State for Justice) when he appeared before the House of Lords’ Select Committee on the Constitution on 2 December 2015 (Q 11, pp17-18 [unrevised version]).

When pressed for answers on the prisoner voting issue, Mr Gove conceded that the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill’s (hereafter the ‘Joint Committee’) Report ‘absolutely’ ‘deserve[d] in due course a fuller answer’. Nevertheless, he would not commit to when this would be, other than to say that it would be ‘after’ the publication of the consultation document on a proposed UK Bill of Rights (replacing the Human Rights Act 1998), which is to be expected in the new year. Read the rest of this entry…

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