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Home Human Rights Archive for category "European Convention on Human Rights" (Page 5)

(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 

In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…

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Extradition: English Court refuses to extradite alleged génocidaires to Rwanda–will a domestic prosecution follow?

Published on October 2, 2017        Author: 

The Divisional Court of England and Wales has dismissed the appeal of the Government of Rwanda in the high-profile extradition proceedings against five alleged génocidaires in the case of Rwanda v Nteziryayo and ors. The men will not be extradited to Rwanda to stand trial for genocide and it now appears that, if they are to be tried at all, it must be in the UK.

The judgment of the Divisional Court affirmed the decision of District Judge Emma Arbuthnot on 22 December 2015 to discharge the extradition requests on two grounds: double jeopardy–one of the requested persons had been tried in a domestic ‘Gacaca’ court—and article 6 of the European Convention on Human Rights. The Judge accepted the evidence of the requested persons that there was a real risk they might suffer a flagrant breach of their rights to a fair trial if extradited to Rwanda.

The background to this latest decision reveals the evolving measures employed by the international community to promote justice and end impunity for international crimes. 

Following the genocide in Rwanda in 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) which was intended to bring to trial those most responsible for the genocide and other serious violations of law perpetrated in Rwanda. Security Council Resolution 1824, passed on July 2008, called for the completion of the work of the ICTR by 2010. Read the rest of this entry…

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Barbulescu v Romania: Why There is no Room for Complacency When it Comes to Privacy Rights in the Workplace

Published on September 26, 2017        Author: 

For some privacy advocates, the decision earlier this month of the Grand Chamber of the European Court of Human Rights (ECtHR) in Barbulescu v Romania was another milestone in the pursuit of greater protection for employee privacy. Reversing a decision of the Fourth Section last year, the Court held that the monitoring of an employee’s Yahoo Messenger account breached his right to respect for private life in Article 8. While it would be churlish to contradict such claims, this is no time for complacency.

Mr. Barbulescu was a sales engineer working for a private company in Romania. The company in question prohibited the use of its equipment (including the internet) for personal use – a policy it robustly enforced with dismissals for transgressors – facts which Mr. Barbulescu was made aware of. At his employer’s request, Mr. Barbulescu opened a Yahoo Messenger Account in order to communicate with customers. He was subsequently told that this account had been monitored, revealing that it had been used for personal purposes. When Mr. Barbulescu denied this claim, he was presented with a transcript of the content of his messages. These included exchanges with his brother and his fiancé, some of which were of an intimate nature. Mr. Barbulescu was fired. He challenged his dismissal in the domestic courts alleging that it breached his right to private life. Those claims were dismissed and Mr. Barbulescu brought his case to Strasbourg. Read the rest of this entry…

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Challenging Gender Stereotyping before the ECtHR: Case of Carvalho Pinto v. Portugal

Published on September 21, 2017        Author: 

On 25 July 2017, the ECtHR delivered an important judgment on discrimination, condemning ageist and sexist assumptions made in the reasoning of the domestic court. In this post, I will share my observations about the novelty of the case and its contribution to the case-law of the ECtHR.

Facts and Judgment in short

The applicant, suffering from a gynaecological disease, underwent surgery during which her left pudendal nerve was injured as a result of medical malpractice. Following discharge from hospital, she began to experience intense pain and loss of sensation in the vagina, urinary incontinence, difficulty walking and sitting, and she could not have sexual relations. In the lawsuit she filed, the Lisbon Administrative Court awarded her a sum of compensation for pecuniary damage, covering inter alia the service of a maid for household tasks which she was unable to carry out, and non-pecuniary damages for the physical and mental suffering she experienced. However, at the appeal, the Supreme Administrative Court (Hereinafter: SAC) reduced the amounts awarded for both pecuniary and non-pecuniary damages on account of three reasons set out as the following:

  1. The applicant’s complaints had only been aggravated following the surgery but they were not new;
  2. She probably only needed to take care of her husband, given the age of her children, and did not require a full-time maid; and
  3. The applicant, who had two children, was already 50 years old, an age when sex was not as important as in younger years and that its significance diminished with age.

In its judgment, the Strasbourg Court drew similarities between the applicant’s case and two other judgments concerning medical malpractice experienced by two men at the ages of 55 and 59, who became impotent and incontinent as a result of medical error in operations they underwent. The ECtHR observed that in those judgments, the SAC did not find the amounts awarded excessive, considering the “tremendous shock” or “strong mental shock” experienced by plaintiffs who would suffer irreversible consequences to their sex lives. Contrary to the applicant’s case, the SAC had taken into account neither the plaintiffs’ age nor whether they had any children in these similar cases.

In the decision the ECtHR stated that the general assumption relied on by the domestic court that sexuality was no longer important for a fifty-year-old woman derived from the traditional understanding of female sexuality, essentially linked to reproduction. The Court also noted the patriarchal understanding of the Supreme Court revealed by the assumption that the applicant was responsible to “take care of her husband”. The ECtHR found that the Supreme Court’s decision was not based on objective assessment of facts but on the wrongful gender stereotyping and eventually, by five votes to two, decided that there was a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private life). Read the rest of this entry…

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Twenty Years of the ECHR in Ukraine

Published on September 18, 2017        Author:  and

Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).

This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss Read the rest of this entry…

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The Kosovo Specialist Chambers’ Rules of Procedure and Evidence

Published on August 17, 2017        Author: 

The Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO) are the latest addition to a multi-layered and broad spectrum of international institutions dedicated to the investigation and prosecution of international crimes. In March 2017, the Judges of the KSC adopted the Rules of Procedure and Evidence (RPE), which are now finally available on the Tribunal’s website. In the following, I will provide a first analysis of the RPE and evaluate them against existing procedural laws of International(ized) Criminal Tribunals (ICTs). It goes without saying that, in the face of the sheer number of rules (211), this analysis can only be cursory.

The biggest achievement of the Judges certainly is that they translated the institutional uniqueness of the KSC – an internationalized tribunal with a Constitutional Chamber (‘Specialist Chamber of the Constitutional Court’) and the European Union as the primary sponsor – into the rules. This especially becomes apparent through the incorporation of an interpretation rule (Rule 4) into the RPE, which refers – inter alia – to ‘the framework as set out in Article 3 [KSC-Law]’. This Article 3 (its length makes it impractical to reproduce it here) is not only a modern version of Article 21 of the ICC-Statute. It also determines that the KSC shall adjudicate and function in accordance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the Constitution of Kosovo. This is remarkable in many regards: the preference to refer to the ECHR rather than ‘internationally recognized human rights’ (Article 21(3) ICC-Statute) has the potential of strengthening the rights of the defendant. The vagueness of the term ‘internationally recognized human rights’ has led to the assumption that it denotes something less than universal acceptance. The European human rights jurisprudence, by contrast, is one of the most developed and most discussed in secondary source material (Young, ICLQ 60 (2011), 204). Moreover, through its Article 22, the Constitution of Kosovo gives the ECHR constitutional value. Of course, one could think that this does not make any practical difference, since the ECHR is mentioned as a source of the KSC anyway. However, recall that Kosovo is not a party to the ECHR and therefore not internationally liable for its implementation. The reference to the ECHR in Kosovo’s Constitution makes these human rights justiciable because both the accused and the victim are entitled to make referrals to the Constitutional Chamber in relation to alleged violations by the KSC of their human rights guaranteed by the Constitution (Article 113(7) Kosovo Constitution). Thus, in questions of the KSC’s activity and subject-matter jurisdiction, it is the Constitutional Chamber – not an appellate body – that serves as the final authority for the interpretation of the Constitution (Article 49 KSC-Law). This turns the rights enshrined in the ECHR into basic rights and contributes to a constitutionalization.

Of course, the strengthened judicial review at the KSC through the establishment of a Constitutional Chamber comes at a price, and it does not take much to predict a governance problem. More concretely, as praiseworthy as a constitutionalized ECHR may be in theory, in practice it will not make it any easier for the Judges to face the daily task of running an ICT. Take, for instance, the first Constitutional Chamber judgment about the constitutionality of the KSC RPE, Rule 19 in particular: in the version that was first referred to the Constitutional Chamber on 27 March 2017, Rule 19 contained a paragraph 3 where a hearing could continue for no more than five working days in the presence of just two instead of three Judges, in case one Judge was absent due to circumstances such as illness. Such a rule has great practical importance and is modelled after Rule 16(A) of the Special Court for Sierra Leone (SCSL) RPE and Rule 15bis ICTY RPE. Nevertheless, the Constitutional Chamber declared Rule 19(3) KSC RPE unconstitutional, because Article 25(1) KSC-Law prescribes that the Trial Panels, Court of Appeal Panels and Supreme Court Panels are comprised of ‘three’ Judges, and the KSC-Law is silent on whether hearings may be conducted before a ‘Panel’ of two Judges (Specialist Chamber of the Constitutional Court, para. 39). Read the rest of this entry…

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Charlie Gard: An Ethical Analysis of a Legal non-Problem

Published on August 9, 2017        Author: 

For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday. Read the rest of this entry…

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Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

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The Charlie Gard Case: Behind the Hyperbole

Published on July 21, 2017        Author: 

This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are: Read the rest of this entry…

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Forcible “euthanasia”: the ECtHR´s Charlie Gard Decision

Published on July 14, 2017        Author: 

When – first in the Netherlands, and later in other countries such as Belgium and Luxembourg – laws were adopted to legalize euthanasia, the selling argument was that this was a decisive step forward in order to ensure everyone’s self-determination. The ECtHR’s recent decision in the case of Gard and Others v. the United Kingdom reveals quite a different reality.

The decision is lengthy and contains a lot of medical terminology, but the underlying facts are simple: a child suffers from a medical condition that the treating doctors qualify as terminal, and for which no recognized treatment exists. Not only for argument’s sake, but also because we really have no reason to believe otherwise, let us assume that that assessment is correct and has been made by experts lege artis. Yet the child’s parents place their desperate last hope in an experimental treatment, which has so far never been tested on human beings (and, to believe what is noted in the ECtHR Decision, not even on animals). That treatment would have to be carried out, either in the UK or the US, by a leading researcher and expert on this kind of therapy, who has declared his willingness to administer it even though he qualifies the chances of success as “theoretical” and, on another occasion, as “unlikely”.

Read the rest of this entry…

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