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Home Archive for category "Human Rights"

The Rise and Rise of Political Backlash: African Union Executive Council’s decision to review the mandate and working methods of the African Commission

Published on August 2, 2018        Author: 
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The latest African Union (AU) Summit, held in Nouakchott, Mauritania, from 25 June to 2 July 2018, has left the African Commission on Human and Peoples’ Rights (ACHPR) severely undermined. The Executive Council adopted Decision EX.CL/Dec.1015(XXIII), which endorses some worrying recommendations that emanated from the joint retreat, held in June, by the ACHPR and the Permanent Representatives’ Committee (PRC). The adoption of the Decision has turned the recommendations into binding AU decisions or directives (see Executive Council Rules of Procedure, Rule 34 and Art. 23(2) of the Constitutive Act of the AU). This post reflects on the political motivations for, the legality of, and potential implications of three of these decisions or directives, namely:

  1. The decision to review the interpretative mandate of the ACHPR “in light of a similar mandate exercised by the African Court [on Human and Peoples’ Rights] and the potential for conflicting jurisprudence”;
  2. The directive to the ACHPR to align its guidelines for granting observer status to NGOs with “the already existing criteria on the accreditation of NGOs to the AU”; and
  3. The directive to the ACHPR formulate a code of conduct, in consultation with the AU Legal Counsel.

These decisions are seemingly noble or harmless. However, their underlying motive and impact dovetail into the broader backlash against human rights bodies in Africa (Alter et al 2016). Indeed, the decisions are based on a misconception about the nature of ACHPR’s independence. Read the rest of this entry…

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Supreme Court of Spain: UN Treaty Body individual decisions are legally binding

Published on August 1, 2018        Author: 
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The Spanish Supreme Court has established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State. The Court ordered Spain to pay €600,000 in compensation to Ángela González for the responsibility of its authorities in relation to the death of her daughter. Her daughter was murdered by her father in an unsupervised visit authorised by a judge. National courts dismissed Ángela’s case, but the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) found a breach of her human rights. The Supreme Court has now affirmed that the State must comply with the Committee’s decision. This article discusses the significance of the case and the principle established by it.

Ángela González:  from domestic violence up to the United Nations (1996-2014)

Ángela’s daughter Andrea was born in 1996. Ángela’s partner subjected her to frequent physical and psychological violence. Ángela lodged no less than 30 complaints to the police and to the court. Her partner was convicted for one minor offence and ordered to pay a small penalty for harassment. Only one judicial order protected the minor and lasted for two months.

Marital separation was ordered in November 2001. The judge did not mention the violence as the cause of separation. The order allowed unsupervised visits between father and daughter, and the father was granted the use of the family dwelling. Ángela appealed the decision but was unsuccessful. Andrea had repeatedly expressed her desire not to see her father. In April 2003, the father killed the 7-year-old girl and then committed suicide during an unsupervised visit. Read the rest of this entry…

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Unlawful Killing or Self Defence? Some Thoughts on the ECHR Decision in Makarova v. United Kingdom

Published on July 31, 2018        Author: 
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The admissibility decisions of the European Court of Human Rights (ECHR) do not usually attract larger attention. There are, of course, well-known exceptions, such as Banković and Others v. Belgium and Others. The recent decision in Makarová v. the United Kingdom (see here), rendered on 5 July 2018 by a committee composed of three judges, will certainly not become one of these exceptions. Although the decision has made front pages news in the Czech Republic, the country of origin of the applicant, this has more to do with the factual background of the case than with any legal intricacies involved in it. Despite that, the decision, while not necessarily incorrect, has some interesting and possibly controversial aspects that might deserve closer scrutiny.

Facts of the Case

The facts are well-known and largely uncontested. The Czech citizen Zdeněk Makar, a 31-year-old brother of the applicant, was killed in September 2016 in London, where he had been living for 10 years. The person responsible for his death was a 29-year-old UK citizen Raymon Scully. Makar met Scully, who was in the company of younger friends, in a local takeaway restaurant. They had a dispute, after which Makar left the restaurant. Scully and his friends followed him down the street, where Scully attacked the unarmed Makar with a bite lock. According to a witness, “he swung the improvised weapon and struck Mr Makar to the left side of his head, catching him behind the ear and knocking him to the ground where he then struck him at least twice more”. While Mr Makar was dying in the street, Scully and his friends left without providing first aid or calling ambulance.

The trial with Scully took place between 21 March and 3 April 2017 at the Central Criminal Court in London, and involved a jury composed of twelve lay persons. The members of the jury had to decide whether the act committed by Scully was to be qualified as a murder (intentional killing), manslaughter (unintentional killing) or self-defence. They were informed about the legal requirements of these three qualifications. The trial judge also explained to them that Scully’s good character (i.e. lack of previous criminal convictions) could be taken into account when considering the case. On 3 April 2017, the jury delivered a majority verdict concluding that the defendant had acted in self-defence (defending one of his friends). Scully was acquitted of both murder and manslaughter and set free.

The verdict caused outcry in the Czech Republic, where it was interpreted as a sign that in the pre-Brexit UK, the lives of migrant workers from Central Europe were not given much weight. The Czech Ministry of Foreign Affairs issued a diplomatic note, in which it requested the documents related to the case and “assurance that the nationality /…/ had no influence on the judgment”. The Ministry furthermore announced that it would provide assistance to Makar’s sister, Adéla Makarová, in bringing the case to the ECHR. Makarová lodged the application to the Court on 4 September 2017. On 5 July 2018, the Court declared the application manifestly ill-founded and, hence, inadmissible.

ECHR Decision

The application relied on Articles 2 (right to life) and 13 (right to an effective remedy) of the European Convention on Human Rights. With respect to the former, the applicant argued that the UK (i.e. England and Wales) criminal system exhibited structural deficiencies in that: a) the proceedings failed to produce clear reasons for the defendant´s acquittal; b) the UK test for self-defence allowed instances of unlawful killing to go unpunished; c) the UK law did not criminalize intentional omissions to provide first aid. Alternatively, the applicant argued that a proper application of the domestic could not have led the jurors to the conclusion they had reached. With respect to Article 13, the applicant complained about the absence of an appeal against an acquittal by a jury in criminal proceedings.

The Court rejected all these arguments. It concluded that the UK satisfied the procedural obligation under Article 2(1), because: a) the Convention does not require jurors to give reasons for their decision; b) the subjective test of self-defence used in the UK does not violate Article 2;c) Article 2 does not impose a positive obligation to criminalise intentional omissions. As to the alternative argument, the Court repeated that there had been sufficient safeguards against arbitrariness.

With respect to Article 13, the Court simply recalled that this provision only applied where an individual had an arguable claim to be the victim of a violation of a Convention right. Since the Court already found the applicant’s complaint under Article 2 manifestly ill-founded, there was no such arguable claim and the complaint under Article 13 was declared manifestly ill-founded as well. Read the rest of this entry…

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African Court on Human and Peoples’ Rights Delivers Landmark Ruling on Women’s Rights and the Rights of the Child in Mali

Published on July 27, 2018        Author: 
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Introduction

On 11 May 2018 the African Court on Human and People’s Rights (‘the Court’) issued its ruling in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v Mali. This is the first judgment of the Court which deals with the rights of women and the rights of the child in Africa. With this decision, the Court has placed strict obligations on states to uphold international human rights standards within the sphere of family law, even when to do so may require them to disapply religious and customary law.

Facts

The application was brought by two Malian human rights NGOs, APDF and IHRDA (‘the Applicants’). The Applicants claimed that the most recent Malian Family Code, which was adopted in 2011 (‘2011 Family Code’) breaches several international human rights treaties ratified by Mali including: the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’), the African Charter on the Rights and Welfare of the Child (‘ACRWC’) and the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’). A large proportion of the population in Mali are Muslims, and the 2011 Family code was adopted as the result of a compromise between the National Assembly and various Islamic organisations within the country that protested vigorously against a prior attempt by the Malian Parliament to codify the rights of the family in 2009. This earlier code had attempted to provide rights for women and children in family matters that were more aligned with human rights treaty standards. Read the rest of this entry…

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The Quandaries of Data Analysis and Methodologies in Rule of Law, Development, and Human Rights Assessments: New Challenges for UN Special Rapporteurs

Published on July 20, 2018        Author: 
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If Professor Hans Rosling’s famous last opus, Factfulness (April 2018)is to be believed (as well as Bill Gates’ effusive review here), we all tend to have grimmer views of the state of economic development in the world than actually borne out by reality – especially on issues of global health and poverty.  Referring to the “developed world” and the “developing world” is a meaningless and unhelpful binary that glosses over significant welfare, health, life expectancy, education, and human capabilities differences between and among the hugely diverse “middle income countries” (e.g. the World Bank divides them into “lower middle-income economies – those with a GNI per capita between $1,006 and $3,955;  and upper middle-income economies –  those with a GNI per capita between $3,956 and $12,235 (2018)). Even the World Bank stopped using the distinction between “developing” and “developed” countries starting with its 2016 World Development Indicators, ultimately concurring with the view that the “developing country” and “developed country” distinction was not useful and too broad for targeting international development programs for partner countries, especially when assessing progress in all 17 of the Sustainable Development Goals (SDGs). The United Nations does not have a formal definition of “developed countries” versus “developing countries”, instead insisting that its classifications in UN methodology are “for statistical convenience and does not express a judgement about the stage reached by a particular country or area in the development process”.  However, these categories are widely used in the UN system anyway, including in the UN’s 2017 Sustainable Development Goals Report as well as in the datasets used for the 2018 SDG16 Data Initiative Global Report (on the goal of achieving peaceful, just, and inclusive societies). If the distinction between “developing country” and “developed country” is operationally meaningless for formulating and evaluating development programming, shouldn’t international lawyers and scholars also take note of the imprecision of this category when putting forward their observations and assessments of the state of rule of law, economic development, poverty, and human rights in the world?  (Note:  I do plead guilty to having, in previous works, alluded to the same classifications.)

Professor Rosling’s opus came to mind recently after the debate spurred from recent sharp criticisms issued by US Ambassador Nikki Haley and by experts from the Heritage Foundation, against UN Special Rapporteur for Extreme Poverty and Human Rights and NYU Law Professor Philip Alston, who had issued several statements (see here, here, and here) and his full 4 May 2018 report on the state of poverty within the United States (finding, among others, that 40 million people across the United States live in poverty, while 18.5 million live in extreme poverty, and an additional 5 million in conditions of absolute poverty; or alternatively put, “1 in 8 Americans now live in poverty, with half of this population living in extreme poverty, according to U.S. government estimates.”).  While Ambassador Haley alleged that the report “categorically misstated the progress the United States has made in addressing poverty and purposely used misleading facts and figures in its biased reporting”, the Heritage Foundation challenged the income-based poverty measures used by Professor Alston and charged that “these “official” income figures exclude substantial off-the-books earnings among low-income households and omit roughly 95 percent of the $1.1 trillion U.S. taxpayers provide in means-tested cash, food, housing, and medical benefits for low-income persons each year.”  Professor Alston has criticized the United States’ withdrawal from the UN Human Rights Council, and charged that the Trump Administration was exacerbating poverty for millions of Americans.  The Special Rapporteur has not yet responded to the challenges against the data sources used, and the quantitative and qualitative methodologies used for this fact-finding mission and its conclusions.

When I examined the index of currently publicly available Reports of the Special Rapporteur for Extreme Poverty and Human Rights, it was somewhat surprising that there was no separate initial report on the quantitative or qualitative methodologies adopted for the country assessments on the state of extreme poverty and human rights (although each country assessment thus far discusses observations from anecdotal evidence, official statistics from government sources, and other sources).  Considering the very difficult remit of Professor Alston – who as Rapporteur is an unpaid expert and admittedly not an official of the United Nations – I wondered why it did not appear from the reports that the UN’s considerable resources on SDG monitoring and assessment (especially SDG1 on eradicating poverty), as well as on economic vulnerability and risk monitoring, had been deployed and allocated to assist in the Special Rapporteur’s challenging fact-finding mandate.  Note that Professor Alston has himself championed interdisciplinarity and cross-verification in human rights fact-finding and yet, the UN remains unable to reasonably coordinate its resources, data, and interdisciplinary expertise before it dispatches its unpaid experts for overwhelmingly difficult fact-finding missions as “Special Rapporteurs”. Read the rest of this entry…

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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 
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Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

 

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Irregular migration after the Aquarius incident: moving beyond the law. A reflection on Fink and Gombeer

Published on July 5, 2018        Author:  and
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Introduction

Last month, EJIL: Talk! published a piece by Fink and Gombeer on the legality of Italy and Malta’s recent failure to provide a safe haven to a rescue vessel Aquarius. Essentially, the authors concluded that the refusal by these states to open their harbours is ‘regrettable, at the very least, but not necessarily unlawful.’ On their view, for the reasons elaborated in their analysis, neither the law of the sea nor human rights law have been ‘evidently’ breached. It follows that these two branches of law, in the context of ‘Aquarius-like incidents’, provide rather no avail to asylum seekers; in other words: law has its own limits.

The fate of Aquarius and her passengers is yet another example of an endless list of scenarios where people from predominantly war-torn, repressed or impoverished territories often attempt to irregularly cross international borders; a large number of them seeking help, safety and a better life. This and similar events illustrate not only that the handling of the arrival of asylum seekers, especially in Europe, has fostered multiple crises, but also that irregular migration will not cease to occur. Hence, the need for a long-term, responsible and visionary solution is evident.

Fink and Gombeer reflect de lege lata, and their diagnosis is valid and all the more relevant nowadays, de lege ferenda, as the governance and management of migration is largely being reformed, on multiple levels, precisely to address contemporary challenges and expectations. Among others, the European Union (EU) attempts to reform its migration and asylum policy, predominantly the so-called Dublin system, and the United Nations (UN) is expected to adopt its Global Compact on Migration by late 2018.

Having read Fink and Gombeer’s analysis, we cannot help but reflect on their main conclusion in light of these reforms. These authors basically identify a ‘gap’: the law has its own limits. We, in turn, reflect further on filling the said ‘gap’. We ask what can be done to overcome the limitations of law in order to ensure more holistic protection of asylum seekers?

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What implementation of judgments looks like – or doesn’t? –: the case of the Molina Theissen family in Guatemala

Published on July 2, 2018        Author: 
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On 27 September 1981, Emma Molina Theissen, member of the Patriotic Labor Youth, was detained by the armed forces and taken to the “Manuel Lisandro Barillas” Military Barracks (MLB-MB), where she was subjected to psychological and physical torture, including sexual violence. She was deprived of food and water, losing so much weight that, after nine days, on 5 October, she was able to slip off the handcuffs and escape. Attempting to recapture her, on 6 October, members of the Army went to the family residence, searched the house and, not finding her, took her 14-year-old brother, Marco Antonio. Their mom, Doña Emma Theissen Álvarez de Molina, witnessed everything. Marco Antonio remains disappeared since that date. While the family was forced into exile, they have never stopped searching for him and have never ceased in their efforts to obtain truth, justice and reparation.

This post, product of the ESRC Human Rights Law Implementation Project, explores the domestic-international interplay regarding implementation of reparations ordered by the Inter-American Court of Human Rights (IACtHR) in the Case of Molina Theissen vs. Guatemala; more specifically, in relation to the historical domestic proceedings of early 2018. Read the rest of this entry…

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De-humanisation? CJEU, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen on Religious Slaughter

Published on June 26, 2018        Author: 
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Introduction

In Case C-426/16, Liga van Moskeeën en islamitische Organisaties Provincie Antwerpen et al v. Vlaams Gewest, the Court of Justice of the European Union (Grand Chamber) in its judgment of 29th May 2018 decided that the EU law provision allowing religious slaughter without stunning the animal only in slaughterhouses (Art. 4(4) of Regulation No 1099/2009) is valid. It does not violate primary law: neither the freedom of religion as guaranteed in Art. 10 of the European Charter of Fundamental Rights, nor the animal welfare mainstreaming clause of Art. 13 TFEU.

Two weeks earlier, US President Donald Trump spoke about migrants:

We have people coming into the country, or trying to come in — and we’re stopping a lot of them — but we’re taking people out of the country. You wouldn’t believe how bad these people are. These aren’t people. These are animals. And we’re taking them out of the country at a level and at a rate that’s never happened before. And because of the weak laws, they come in fast, we get them, we release them, we get them again, we bring them out. It’s crazy. (The White House, Remarks by President Trump at a California Sanctuary State Roundtable, May 16, 2018 (emphasis added)).

Do both incidents have something in common? Both concern migrants, directly or at least indirectly. While President Trump’s statement is openly humiliating and racist, the EU regulation and its strict application by Flemish authorities that led to the CJEU judgment is not. Still, we might ask (what the Court did not) whether the Flemish case involves indirect discrimination against Muslims. I find that neither EU law nor its application violate fundamental rights. However, we need to remain vigilant because, speaking with Theodor Adorno, vilifying human and non-human animals might, in psychological and ethical terms, be related and even intertwined. Read the rest of this entry…

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Inter-American Court of Human Rights condemns Venezuelan regime’s political persecution against the opposition in the San Miguel Sosa and others case

Published on June 25, 2018        Author: 
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The Inter-American Court of Human Rights (hereinafter, IACtHR) published a recent decision (only available in Spanish) in the San Miguel Sosa and others vs. Venezuela case, by means of which it rebuts frequent arguments relied on by the Chavista[d1] –i.e. based on the ideas of former president Hugo Chávez— regime of Nicolás Maduro that label external and foreign criticism against its policies, frequently seen as abusive against political dissidents and others as contrary to human rights, as forms of intervention in its domestic affairs. This post translates relevant excerpts of the judgment on merits and reparations, and introduces some observations on the right to political participation under the American Convention on Human Rights.

The case was about the termination of contracts of persons who worked with the state of Venezuela soon after they participated in an initiative that sought to call for the celebration of a referendum on the termination of the mandate of then-president Hugo Chávez (para. 1). The list of those who signed in support of the referendum had been transmitted by the National Election Council (Consejo Nacional Electoral) to a ‘chavista’ member of parliament, Tascón (para. 131). Several state agents had told the applicants that the termination of their contract was the result of their disloyalty (paras. 137-139). While the defendant state argued that the contracts were terminated in order to lower costs and personnel (para. 140), the Court considered that this was not demonstrated. In this sense, it argued that the mere invocation of “convenience or reorganization, without providing more explanations” made the state arguments seem weak and lack precision “in relation to motivation”, supporting the “strength of circumstantial evidence” about actions that were actually meant to target lawful political and legitimate opposition action of some persons. Thus, the IACtHR concluded that there was a “reprisal against them for having legitimately exercised a political right enshrined in the Constitution, i.e. signing their support of the call for a referendum on the revocation of presidential mandate. The Court added, hence, that “the termination of the contracts was a “deviation of power” (para. 150), which exists when “there is a motivation or purpose that differs from that of a norm that confers powers to a state authority, [case in which it can be demonstrated that] the action can be regarded as an arbitrary one” (para. 121).

It is interesting to note that the Inter-American Commission on Human Rights had stated that the state of Venezuela’s assertion that the alleged victims had to fully demonstrate a nexus between an alleged discriminatory treatment and the authorities’ decisions would imply placing an excessive and absolute burden of proof on the applicants without the state having exhausted all the measures at its disposal to find out the truth, considering the complexity of the issue (para. 174). The Court, in turn, considered that while the termination of contracts was permitted by the legal system, it is possible to rebut a presumption that authorities acted in good faith (para. 122), as the Court found in this case based on circumstantial evidence (supra) flowing from evidence on the “Tascón list”, testimonies on conversations with state agents, statements of the president of Venezuela, and other elements that made the Court consider that “the termination of contracts took place in a context of high instability, political polarization and intolerance towards dissent, which could encourage forms of persecution or discrimination […] made possible by acts and declarations of members of the Executive and Legislative Powers, as well as of the competent electoral authority”, there having been no adequate state “precise and detailed explanation as to the motivation of its decision. In cases as the present one, the mere invocation of convenience or reorganization, without providing further explanations, is not sufficient, because the weakness of precisions as to motivation reinforces the likelihood of contrary circumstantial evidence […] Reason why the Court concluded that the termination of contracts was a form of deviation of power, which used [a] clause as a veil of legality to conceal the actual motivation or real purpose: a reprisal […] for having legitimately exercised a political right” (paras. 124-150).

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