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Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 21, 2018        Author:  and
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CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative Read the rest of this entry…

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Part 1: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 20, 2018        Author:  and
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On 6 December 2017, after a year long consultation process with states and civil society representatives, the Committee against Torture (CAT) adopted its revised General Comment (GC) (now No.4) on the implementation of Article 3 of the Convention against Torture (the Convention)  in the context of Article 22.

In a decaying global human rights climate, in particular towards people on the move, this GC has been much awaited.  Non-refoulement claims are the single most common claims raised before all UN Treaty bodies.  Non-refoulement cases are over 80 percent of  CAT’s  caseload. In addition to this, the  Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) also receive individual petitions concerning non-refoulement, and turn to CAT for guidance.

Twenty-three state parties to the CAT (out of 162 in total) provided written comments on the draft GC prior to its adoption. These, in almost every case, pushed back on the standards the Committee aimed to develop.  The significant majority of the twenty three States responding were asylum and migration destination states in the global north, well known for their anti migration rhetoric. Alongside these, countries that have a disproportionate burden of asylum seekers, such as Turkey and Morocco also responded. China, the US, the UK, Qatar and Egypt, even though they do not recognise the right to individual petition before CAT,  also provided written comments. The states that provided the most detailed and expansive submissions were: the United Kingdom, Norway, Denmark, Australia, Canada, the United States, the Russian Federation, France and Switzerland.

Over these two blog posts, we identify which issues were subject to state pushback and how CAT responded, highlighting the areas where CAT stood its ground and where it conceded. Read the rest of this entry…

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Can the ECtHR provide an effective remedy following the coup d’état and declaration of emergency in Turkey?

Published on March 19, 2018        Author: 
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The question posed in the title of this post has been discussed in various blogs suggesting that recent decisions of the ECtHR rejecting cases for non-exhaustion of domestic remedies have been politically motivated.  I recently discussed this issue at a meeting organised by the Law Society in conjunction with the German Bar Association (DAV) in Berlin on 5th March 2018. 

Let me say from the outset that I will argue that this question, for someone who has worked for many years with the Court (ECtHR) and who has dealt with many Turkish cases, is not the right question to ask.

From my perspective, the right question to ask is not whether the Court is capable of offering an effective remedy to Turkish citizens – of course it is – BUT rather when, and under what circumstances, will the Court offer such an effective remedy? 

As you can readily appreciate, this is a more positive formulation which better accords to reality.  After all, we would not doubt the capacity of the UK Supreme Court or the German Constitutional Court to offer effective remedies for violations of fundamental rights. So, why should we doubt the capacity of the European Court to do so given its proven track record of upholding Convention (ECHR) principles, often in the face of vitriolic criticism from states and others?

Subject to that reservation, I make the following remarks about the matter. 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: 
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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 Legal Protection of Mass Graves

Published on November 18, 2016        Author: 
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Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

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Turkey’s Derogation from Human Rights Treaties – An Update

Published on August 18, 2016        Author: 
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In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

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UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

Published on May 5, 2015        Author: 
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A couple of days ago the UN Working Group on Arbitrary Detention adopted an important document, the “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court,” and submitted the text to the Human Rights Council. The document was developed by the WG at the Council’s request. The project is meant to guide Member States on principles on the judicial review of the lawfulness of detention. The drafting process was completed after extensive consultations with states and other stakeholders. A press release is available here, the full text of the Guidelines and Principle is here, while the submissions by interested states and other actors are here.

This is a rich document dealing with many different issues. Perhaps most interesting – and certainly bound to be the most controversial – are the WG’s conclusions with regard to deprivation of liberty in armed conflict. The WG takes a very strong position regarding the right of habeas corpus in wartime, which it sees as non-derogable in common to a number of other human rights bodies, finding for example that in international armed conflict even prisoners of war have the right of access to a judicial mechanism that would establish the lawfulness of their status-based preventive detention. The WG also takes the view that IHL does not authorize internment in NIACs, and that internment would only be lawful if it is prescribed by domestic law, after a derogation in a public emergency. Some of the most important paragraphs are reproduced below the fold.

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 
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Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

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Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 
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Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

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

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

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

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

A Lack of Alternative Means to Resolve the Complaint

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

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

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

Published on January 14, 2014        Author: 
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Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).

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

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

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

Accountability of State officials for torture

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

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