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Home International Tribunals Archive for category "European Court of Human Rights"

Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?

Published on April 28, 2017        Author: 

Slow, partial or sometimes even non-implementation of judgments of the European Court of Human Rights is the Achilles heel of the European Convention system. The latest annual report of the Council of Europe’s Committee of Ministers attests to some positive trends — a record number of cases closed in a single year and a decrease in the number of pending cases revealing systemic or structural problems — yet still 9,944 judgments remain unimplemented. While this is the first time since 2010 that the figure has dipped below 10,000, it remains a substantial caseload for the Committee of Ministers, the body formally tasked with monitoring implementation.

How, then, to tackle the problem? A thought-provoking contribution to this debate has been made by Kanstantsin Dzehtsiarou and Fiona de Londras in their article, ‘Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights’.

Infringement proceedings under Article 46(4) of the Convention were introduced by Protocol No. 14 to the Convention in order to provide a means of increasing pressure on obstructive states short of the extreme sanction of suspension or expulsion. This — as yet unused — mechanism empowers the Committee of Ministers to refer a state back before the Court if it refuses to implement a judgment.

Dzehtsiarou and de Londras argue that invoking Article 46(4) would be ‘futile and counterproductive’ because, among other reasons, it risks overburdening the Court (specifically its Grand Chamber, which would consider any referrals) and further delaying implementation while proceedings are pending. Moreover, they venture, infringement proceedings would do nothing to address the root causes of non-execution and could provoke a backlash by impugned states, potentially damaging both the effectiveness and legitimacy of the Convention system. Read the rest of this entry…

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Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR

Published on April 26, 2017        Author: 

On 30 March 2017, the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR (the right not to be subjected to forced labour). This judgment is an important addition to the gradually growing body of case law under Article 4 of the ECHR. Against the background of the overall prolific output of the Strasbourg Court, it might come as a surprise that the case law under Article 4 is very limited. In addition to the line of cases where the state demands services, which could amount to forced labour (see, for example Chitos v. Greece), there have only been seven cases in which the Court had to address circumstances where abuses inflicted by non-state actors (i.e. employers) qualify as slavery, servitude, forced labour or human trafficking under Article 4. Chowdury and Others v. Greece is the eighth one. It is, however, the first case where the Court found that exploitation of irregular migrant labour amounts to forced labour. The previous cases (Siliadin v. France and C.N. and V. v. France), where the Court determined that the factual circumstances amounted to forced labour, involved children who provided domestic services.  Chowdury is also the first case where the Court found that the victims were subjected to forced labour, but not to servitude.

Chowdury and Others v. Greece has already received wide media coverage (see the Guardian, New York Times) and has been assessed as constituting an important advancement. After briefly describing the factual circumstances and the findings, in this post I would like to take a more critical approach to that part of the judgment where the Court addresses the definitions of servitude, forced labour and human trafficking in human rights law. Despite the positive outcome, the judgment Chowdury is in some respects lacking in rigor in terms of delineating the definitional boundaries of the above mentioned concepts. Read the rest of this entry…

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Strasbourg Judgment on the Beslan Hostage Crisis

Published on April 13, 2017        Author: 

The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

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A Critical Commentary on the ECJ’s Judgment in G4S v Achbita

Published on April 5, 2017        Author: 

In March of this year (23/3), Solon Solomon noted here on EJIL:Talk!, that the recent judgment rendered by the European Court of Justice (ECJ) in G4S v Achbita, seems to have given private companies in the EU the green light to indirectly discriminate against certain religious minorities, so long as they put in place general bans on religious attributes that are visible to external customers. While that commentary offered interesting and important reflections on the legal and socio-political context of the ECJ judgment and similar ones previously established by the European Court of Human Rights (ECoHR), this analysis brings forth a somewhat different critique, focusing more closely on the (lack of) motivations behind the Court’s conclusions.

First, to be clear, that indirect discrimination can sometimes be excused is neither what is new nor controversial about the case. According to the Council Directive (2000/78/EC) cited in the Court’s judgment, as well as the applicable international and European human rights law, indirect discrimination can be justified, but only on the condition of a “legitimate aim”. That aim must then (i) be prescribed by law, (ii) respect the essence of the fundamental rights and freedoms of others, and may (iii) only be pursued through measures that are appropriate, necessary and proportionate to achieve the aim (see art. 18 para 3 of the ICCPR; art. 9 para 2 of the ECHR; art. 52 of the EU Charter; Neptune Distribution SNC v. Ministre de l’Économie et des Finances).

Thus what is new and controversial is the Court’s interpretation of what may constitute a legitimate aim with regard to the imposition of limits to the freedom of religion. According to the Court’s decision, the:

“desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate” (para 37).

This, the Court declared, relates to the freedom to conduct a business, which is recognized in article 16 of the EU Charter. The Court then proceeded with its assessment of whether the general ban on visible religious attributes was appropriate and necessary to uphold the supposedly legitimate aim of neutrality. It is these sections of the judgment that expose the Court’s apparent failure to account for the principles governing the rights and conflicting interests at stake. Read the rest of this entry…

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The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

Published on March 23, 2017        Author: 

On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals. Read the rest of this entry…

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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…

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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…

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The Impact of Austerity Policies on International and European Courts and their Jurisprudence

Published on March 3, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Many countries have been hit by deepening economic depression induced by the economic crisis of 2008. While there is no doubt that the crisis had its origins in unregulated financial speculation, by bailing out and recapitalising the broken banking system (see Bieling 2014), national governments were blamed for the financial slump and were asked by some international institutions, to adopt a policy of austerity (see Blyth 2013). This policy involved draconian cuts in government budgets and spending, the privatisation of public-sector organisations and administrations, and reduction of wages and prices to rescue financial and banking institutions that were deemed “too big to fail”. The main effects of these austerity policies have been described, studied and analysed in terms of the decline of welfare states, breaches of social rights, unemployment, and rising social inequalities between the rich and the poor (see Contiades and Fotiadou 2012; Kilpatrick and De Witte 2014 ; Vettori 2011).

The negative effects of austerity on fundamental rights protection have been monitored and denounced by several European institutions, including those responsible for protecting fundamental rights (see here and here). However, scant academic attention has been paid to the way international and regional courts are dealing with some of the policies within the economic crisis as human rights violations (see Salomon 2015). The austerity cases that have been brought before the European Court of Human Rights and the UN Committee on Economic, Social and Cultural Rights have faced the hurdles of admissibility and scope.

The European monitoring of the consequences of the economic crisis

Regarding the European Court of Human Rights [ECtHR], in a number of cases the Court has rejected applications (as it found them inadmissible as manifestly ill-founded) relating to austerity, notably in the field of wages and pensions. Here, the Court relied on the principles of proportionality and subsidiarity, and the limited and temporary nature of austerity measures (see Khoniakina v Georgia, Bakradze v Georgia, Frimu and Other v. Romania, Da Conceição Mateus v. Portugal, Santos Januário v. Portugal and Da Silva Carvahlo Rico v Portugal).

Equally, we could also point out a new sensitivity of the judges of the Court to economic and social rights affected by the economic crisis, austerity policies and public spending cuts. Read the rest of this entry…

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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…

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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…

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