magnify
Home Human Rights Archive for category "European Convention on Human Rights" (Page 3)

Azerbaijan: Is it Time to Invoke Infringement Proceedings for Failing to Implement Judgments of the Strasbourg Court?

Published on March 22, 2017        Author: 

A year ago, on 17 March 2016, the European Court of Human Rights issued a landmark judgment against Azerbaijan finding a rare violation of Article 18 of the European Convention on Human Rights, and the first based on the repression of human rights defenders as a result of their human rights activities. The Court found that the pre-trial detention of a prominent Azerbaijani human rights defender, Rasul Jafarov, was unlawful and aimed ‘to punish the applicant for his activities in the area of human rights’, in violation of Article 18 (restrictions of rights for a purpose other than the one prescribed in the Convention) and also Article 5 (the right to liberty). That same day, after having spent 15 months in a prison cell, Rasul Jafarov was released under the presidential pardon decree.

In finding the violation of Article 18, the Court took note of the totality of repressive circumstances in which Azerbaijani human rights NGOs operated and the numerous statements of high ranking Azerbaijani officials criticising those NGOs and their leaders, including the applicant, and concluded that Jafarov’s case could not be viewed in isolation from this backdrop.

Earlier cases, such as Tymoshenko v Ukraine and Lutsenko v Ukraine, had found a violations of Article 18 due to the unlawful detention of political opposition leaders.

Although Article 18 cases are very rare in the Court’s practice, the Jafarov judgment is the second one in which the Court has found Azerbaijan’s actions in arresting its critics in violation of Article 18 of the Convention. In the case of opposition leader Ilgar Mammadov the Court established that his arrest and pre-trial detention aimed to punish him ‘for criticizing the Government’. Ilgar Mammadov has remained in prison for more than four years serving a seven-year sentence on charges of organising mass disorder and resisting arrest after he criticised the Government’s handling of demonstrations and unrest in the region of Ismayili. Read the rest of this entry…

Print Friendly
 

The ECtHR’s Ilias and Ahmed v. Hungary and Why It Matters

Published on March 20, 2017        Author: 

The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary’s border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a “safe third country” under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.

In what constitutes its first verdict on Hungary’s latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn’t have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former’s ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants’ arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.

The Implications Read the rest of this entry…

Print Friendly
 

Introduction to ESIL Symposium on ‘International Human Rights Law in Times of Crisis’

Published on February 23, 2017        Author: 

The theme of the 2016 ESIL Annual Conference in Riga was ‘How International Law Works in Times of Crisis’. In line with our practice for the last two annual conferences, the ESIL Interest Group on International Human Rights Law applied the conference theme to International Human Rights Law (IHRL) by hosting an afternoon seminar on ‘The Place of International Human Rights Law in Times of Crisis’ with papers by Elif Askin, Gaëtan Cliquennois, Jaya Ramji-NogalesChristy Shucksmith, Charlotte Steinorth and Ralph Wilde.

In this blog symposium, the six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict. While apparently distinct, the blog posts point to challenges in neatly categorising and distinguishing between types of crisis, the ways in which forms of crisis can overlap and bleed into each other and the strategic use of crisis discourse. Indeed, a question raised by Ramji-Nogales is what is meant by ‘crisis’ in the first place. Along with Wilde, she argues that the migration ‘crisis’ should not be understood as a ‘crisis’ as that suggests that the situation was unpredictable and unexpected. Rather, she argues that it was foreseeable and that the language of crisis obscures that fact. While dangerous sea crossings in the Mediterranean have been on-going for some time, the framing of these crossings as a crisis only occurred in Autumn 2015 in Europe.

The posts raise fundamental questions about the positioning and relevance of IHRL in times of crisis. The authors position IHRL on a spectrum from absence or resistance to any role for IHRL in crisis; to a role in mitigating crisis; to becoming part of the problem. The posts further point to heightened interest in IHRL in times of crisis and the chance of development of IHRL as a result. In this introductory post, we explore some of these cross-cutting themes further.  Read the rest of this entry…

Print Friendly
 

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

Published on February 21, 2017        Author: 

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

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

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

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

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

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

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

The Polisario case: Do EU fundamental rights matter for EU trade policies?

Published on February 3, 2017        Author: 

On 10 December 2015, the General Court of the European Union (GC) rendered a judgment in the Council v. Front Polisario case that was revolutionary in many regards: not only did a national liberalization movement successfully challenge an EU trade agreement, the Court also considered the EU Charter of Fundamental Rights (CFR) applicable to non-EU citizens on a non EU-territory and in the context of trade policies (see previously, Geraldo Vidigal in EJILTalk).

A month ago and a year later, the European Court of Justice (ECJ) quashed the decision of the GC and denied legal standing for the Front Polisario. However, the door for a role of EU fundamental rights as a benchmark for EU trade policies is not yet closed. To the contrary, the ECJ’s conclusions brought to the fore an ugly truth that shows that the extraterritorial effects of EU trade policies are in urgent need of closer scrutiny.

Read the rest of this entry…

Print Friendly
 

A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

Read the rest of this entry…

Print Friendly
 

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

Published on December 28, 2016        Author: 

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

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

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

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

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off on Has the European Court of Human Rights Turned a Blind Eye to Alleged Rights Abuses in Turkey?

Taking Stock of the Law on Targeting, Part II

Published on December 15, 2016        Author: 

On Monday, I used the recently released U.S. report on military operations to assess the law on targeting. I argued that the dominant mode for analyzing these operations — asking whether international humanitarian law (IHL), international human rights law (IHRL), or a combination of both regimes governs — is problematic. The targeting rules in each regime are context-dependent, so the rules that have been developed for one context would not necessarily require the same thing if they were extended to a different context. Focusing so heavily on the regime choice is not only unhelpful but can be counterproductive. It reinforces the idea that the regime choice is ultimately what determines the codes of conduct. And so, it makes it harder to develop the law for situations that fit neatly into neither regime. Today, I’ll use U.S. targeting policies to amplify on my argument.

U.S. Position on Targeted Killings

The U.S. position is significant precisely because it pushes past the stale IHL-versus-IHRL debate. The United States does not treat the regime choice as particularly relevant to question of which targeting rules apply.

The U.S. legal claim seems to be that, although IHRL might apply to certain cross-border targeting operations, IHL defines or supersedes what IHRL would require; IHRL does not have independent force. Yet for years now, the United States has made clear that it does not intend to exploit, in all contexts in which it says IHL applies, the expansive authorities that are usually associated with IHL. The United States claims that, outside designated areas of active hostilities, it generally will use force only when someone “poses ‘a continuing, imminent threat to U.S. persons’” and “only when capture of an individual is not feasible and no other reasonable alternatives exist to address the threat effectively.” (See p. 25 of the U.S. report.) Read the rest of this entry…

Print Friendly
 

Taking Stock of the Law on Targeting, Part I

Published on December 12, 2016        Author: 

Last week, President Obama released a report that outlines U.S. legal and policy positions on, among other things, operations that target to kill nonstate actors. (See here, here, here, and here for useful summaries of the report.) In October, the U.K. government addressed but largely dodged the targeting-related inquiries of the British Parliament’s Joint Committee on Human Rights. And over the past few months, the blogosphere has been abuzz with yet another round in the seemingly inexhaustible debate on how international humanitarian law (IHL) and international human rights law (IHRL) intersect in this area. So, now seems like a good time for some stocktaking.

One thing that stands out in all of this is that, despite significant developments in the practice over the past 15 years, much of the legal analysis is stuck in a rut. Most legal commentators assess targeting operations by first asking which regime governs — IHL, IHRL, or a combination of the two. For some time now, I’ve argued that that approach obfuscates, rather than clarifies, what’s at stake. It rests on certain intuitions about what each regime would require if its substantive rules applied. But these intuitions are contestable and often wrong. In other words, analysts tend to treat the regime choice as a proxy for the applicable codes of conduct, but it is a bad proxy. At best, then, their approach distracts attention from the questions that really matter — questions about what is or is not permitted. At worst, it gets in the way of meaningful regulation. I will unpack what I mean by this in two blog posts.

Identifying the Legal Framework

The traditional test for a non-international armed conflict — and thus for applying IHL to current operations against non state actors — requires that the violence reach a certain level of intensity. In September, Adil Haque argued against that intensity threshold. He claimed that an armed group’s organization and capacity to sustain military operations should suffice to trigger IHL. The practical effect of his proposal would be to apply IHL to early strikes that occur before any intensity threshold is satisfied. Because such strikes might also be governed by IHRL, Haque’s proposal provoked the most recent round in the IHL-versus-IHRL debate. Read the rest of this entry…

Print Friendly