magnify
Home Archive for category "Human Rights"

For Whom the Bell of the European Convention on Human Rights Tolls? The Curious Case of Slovenia v. Croatia

Published on December 5, 2019        Author: 

 

“This case is unusual, yet important and also familiar”, was the opening statement by Mr. Jeremy McBride (Croatian counsel) at the admissibility hearing before the Grand Chamber of the European Court of Human Rights (the Court or ECtHR) in the case of Slovenia v. Croatia held on June 12. The case is also hot since Slovenia expects the Court’s decision on the admissibility by the end of 2019 or in the first half of 2020.

The case is unusual because it is the first EU inter-state application case and it is all about the rights of a legal person which can be classified as a governmental organization. Namely, Slovenia sued Croatia before the Court for alleged human rights violations of the state-owned bank Ljubljanska banka (LB) in Croatia. The case is familiar because the Court previously decided that LB is a governmental organization and therefore it does not have locus standi under Art 34 of the European Convention on Human Rights (the Convention) (see cases Ališić and Ljubljanska banka). The problem occurred during the era of Socialist Federal Republic Yugoslavia. It concerns Yugoslav banking system problems which emerged after the dissolution of Yugoslavia.

Slovenia states that the purpose of the case is a just solution for the old foreign-currency savings problem. By virtue of the Ališić judgment, Slovenia was obliged to pay the vast majority of old foreign-currency savings in Yugoslavia. Relying on the findings in that case, Slovenia expects the Court to remedy violation of LB’s rights committed by Croatia.

The factual background and the Court’s findings in Ališić and Ljubljanska banka cases are explained in detail in Janja Hojnik’s post on this blog. Therefore, I will not elaborate on the facts further, nor will I consider whether Croatian courts violated LB’s rights and denied justice. Instead, I will focus on one issue of importance: whether a state can bring an inter-state application before the ECtHR while at the same time the alleged victim cannot file an individual application

One important issue for the Court to resolve

Can Slovenia claim that Croatia violated LB’s rights under the Convention even though LB itself is not authorized to file an individual application? Read the rest of this entry…

Print Friendly, PDF & Email
 

Academic Freedom Under Pressure

Published on December 2, 2019        Author: 

 

Contemporary threats to academic freedom are global, diverse and mounting. The ICNL-commissioned report Closing Academic Space published in March found “repressive and potentially repressive government practices against higher education institutions, including academics and students, in more than 60 countries”, including Hungary, Russia, Venezuela, Turkey, Egypt and China.

Challenges to academic freedom and autonomy in Europe, particularly the EU, now seem alarming, despite significant resistance. A couple of causes célèbres illustrate the point. On Wednesday 27 November, the distinguished constitutional law scholar Professor Wojciech Sadurski faced the first hearing in one of three SLAPP lawsuits brought against him under civil and criminal defamation laws by Poland’s governing Law and Justice party and the public broadcaster, TVP. Various actors have stood in solidarity with Professor Sadurski. In the run-up to the hearing, constitutional law scholars launched the #WithWoj hashtag, following an open letter on the Verfassungsblog in May; ARTICLE 19 submitted an amicus curiae brief, live-monitored the hearing and, together with other NGOs, issued a statement.

On Friday 15 November, my institution, the Central European University (“CEU”) officially inaugurated its Vienna campus, having been forced to move its US accredited degree programmes from Budapest as a result of amendments to Hungary’s higher education law adopted in April 2017 (“Lex CEU”). The subsequent fight to defend CEU spurred street demonstrations, the #IstandwithCEU hashtag and thousands of statements of support – including from academic institutions and associations, Nobel Laureates, German Chancellor Angela Merkel, Irish Taoiseach Leo Varadkar, the late former UN Secretary-General Kofi Annan and a network of freedom of expression NGOs. It also motivated the adoption of the Utrecht Declaration on Academic Freedom by human rights academics.

These cases raise a number of individual human rights issues and deep concerns about the implications of restrictions on scholars and universities for democracy and the rule of law across societies. They further prompt questions about the definition, scope and place of the notion of “academic freedom” in international law. Read the rest of this entry…

Print Friendly, PDF & Email
 

Mandatory Derogation from Human Rights in Overseas Armed Conflicts? A Response to the Policy Exchange Proposals

Published on November 27, 2019        Author: 

 

 

A recent paper published by Policy Exchange, Resisting the Judicialisation of War, sets out a range of policy and legislative proposals for the incoming UK government. In this blog post, I raise concerns over three recommendations in the paper.

Contextualising the proposals

In the background to the Policy Exchange paper is the Ministry of Defence (MOD)’s 2016 announcement of a “presumption to derogate” from the European Convention on Human Rights (ECHR), particularly in “future overseas operations”. Derogation is the mechanism built into the ECHR to provide flexibility in times of war or emergency. It enables States to modulate the scope of Convention obligations and take measures consistent with the Law of Armed Conflict (if applicable).

The MOD’s 2016 press release asserted that litigation followed military operations in Iraq and Afghanistan on “an industrial scale”, and that derogation would protect troops from persistent “vexatious claims”. Previous Policy Exchange reports, Fog of Law (2013), Clearing the Fog of Law (2015) and Protecting Those Who Serve (2019), placed the blame for such claims squarely on judicial decisions applying the ECHR to extraterritorial armed conflicts, including Al-Skeini v UK (2011) 53 EHRR 18 and Smith v MOD [2013] UKSC 41.

This resulted in what Policy Exchange calls the ‘judicialisation’ of war. The application of the ECHR to military operations is alleged to hinder commanders by generating risk aversion, leading to the hyperbolic claim that the military risks “defeat by judicial diktat”. The recent paper is the latest instalment in Policy Exchange’s coordinated efforts to sway UK policy in this area.

Derogation is the proposed workaround. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Inter-American Court’s Advisory Function Continues to Boom – A few comments on the requests currently pending

Published on November 25, 2019        Author: 

 

 

Just on the same day that Evo Morales had asked the Bolivians to re-elect him for the fourth time as President, Colombia’s President Iván Duque apparently followed his words with deeds by filing a further request for an advisory opinion to the IACtHR. Already in his opening speech at the occasion of the Court’s last special session held in Colombia this summer, Duque had announced that his government was working on a request asking the Court to clarify whether or not a human right to be re-elected for indefinite terms exists. Then, on the day of the Bolivian elections, it was reported that the request had been submitted. An opinion by the Court contradicting that of the Bolivian Constitutional Court, according to which the possibility to be re-elected indefinitely constitutes a human right, could have destabilized a further Morales government. In light of the most recent events in Bolivia, including the resignation of Morales, the immediate reason for the request seems to be obsolete. But the issue of indefinite re-election remains topical. Not least, as also mentioned here, a Colombian State agent had indicated that the request was also relevant with regard to Nicaragua and Venezuela.

The request on re-election is already the third request currently pending before the Court, highlighting the continuing importance of the Court’s advisory function. Just a few weeks ago, the Court published a request filed by the Inter-American Commission on Human Rights (IACHR) regarding the guarantee of trade union freedom, its relationship to other rights, and its application from a gender perspective. The Commission’s request addresses a very important matter in times of a changing world of employment and also in light of the heavy protests in Ecuador and Chile which are basically rooted in the high rates of social inequality.

This post will focus on the first of the three pending requests, which submitted by Colombia in May. Not only is the May request politically sensitive, but it also raises some very interesting technical legal questions.

In its request of May, Colombia poses the following three questions to the Court: Read the rest of this entry…

Print Friendly, PDF & Email
 

R v TRA: Article 1 of the Convention Against Torture and the Public Official Requirement

Published on November 20, 2019        Author: 

 

Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level.   Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.

It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.

Ordinary Meaning of Article 1

In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…

Print Friendly, PDF & Email
 

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…

Print Friendly, PDF & Email
 
Tags: ,

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…

Print Friendly, PDF & Email
 

Social Justice Quests in the Process of Development-induced Displacement

Published on November 12, 2019        Author: 

 

“For millions of people around the world—development has cost them their homes, their livelihoods, their health, and even their very lives.”

                             – W. Courtland Robinson

Introduction

The term development-induced displacement (DID) by itself mirrors two contradictory notions, which rightly represent the dilemma associated with this form of involuntary displacement. On the one hand, “development” has a positive connotation, as it represents the social and economic advancement of a given society, and on the other hand, displacement entails the involuntary removal of people from their homes or residences, which comes with various socio-economic risks. DID, whether or not it is followed by planned resettlement, refers to the involuntary displacement of persons from their homes or habitual residence in order to make a room for development projects. With the proliferation of large scale development projects, particularly in developing and highly populated countries, DID has emerged as one of the prominent causes of internal displacement affecting an estimated number of 15 million people every year (see Heather Randell, 2017).

DID has various risks and impacts, which extends from inherent socio-economic problems to grave human rights violations, on displaced persons. This is especially true when the resettlement programs fail short of equitable standards and adequate procedural guarantees are not accorded. The acquisition of land and eviction that DID entails subject those affected to homelessness, landlessness, loss or decrease of income, and social disintegration, among others. These further create unfavourable living conditions, food insecurity, and increase morbidity and mortality rates. These consequences of DID often extend to a long period resulting in chronic impoverishment of those affected. Overall, as Michael Cernea puts it, “being forcibly ousted from one’s land and habitat by a dam, reservoir or highway is not only immediately disruptive and painful, it is also fraught with serious long term risks of becoming poorer than before displacement, more vulnerable economically, and disintegrated socially” (see Michael Cernea, in Tim Allen (ed), 1996). Having this background in mind, this article seeks to elucidate the social justice concerns DID gives rise to. Read the rest of this entry…

Print Friendly, PDF & Email
Filed under: Human Rights
 

An Arusha-based World Court on Human Rights for African States?

Published on November 7, 2019        Author: 

 

The Arusha-based African Court on Human and Peoples’ Rights (ACtHPR) enjoys a distinctively broad contentious jurisdiction extending to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’ (Article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR)). The ACtHPR’s striking feature sets it apart also from most international courts. One may even argue that, as far as African States are concerned, the ACtHPR functions as a world court on human rights by consolidating human rights obligations of State parties under the auspices of a single judicial body on a regional level. In this post I will offer a few, brief thoughts on some of the legal issues pertaining to the material jurisdiction of the ACtHPR. For a detailed analysis of these matters see my recent article in the Human Rights Law Review.

The ACtHPR’s approach

The ACtHPR has proved itself willing to exercise its material jurisdiction to the fullest possible extent. It systematically applies, and finds violations of, other human rights treaties, including regional, sub-regional and UN treaties, and it orders the respondent States to comply with their respective obligations. Some scenarios on how applicants submit complaints are:

  1. bringing a case claiming a violation of a right which is not protected under the ACHPR but is protected by another treaty ratified by the State concerned;
  2. alleging a breach of a right which, although included in the ACHPR, is formulated in another treaty in a manner that ensures a higher level of protection (see, Lohé Issa Konaté);
  3. claiming a violation of a human right which is protected in the same way under both the ACHPR and another treaty, but no mechanism is envisaged or is available to the applicant under that other treaty to bring an individual complaint (see Tanganyika Law Society);
  4. choosing to bring a complaint before the ACtHPR (instead of, or in addition to, another international body) as a litigation strategy (e.g., physical proximity to a forum, litigation costs, avoidance of stricter admissibility criteria before UN human rights bodies).

New designs and old anxieties Read the rest of this entry…

Print Friendly, PDF & Email
 

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…

Print Friendly, PDF & Email