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

Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

Published on October 30, 2019        Author:  and

 

 

In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. Read the rest of this entry…

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The ECtHR on Disembarkation of Rescued Refugees and Migrants at Greek Hotspots

Published on October 25, 2019        Author: 

The storm-tossed question of disembarking rescued refugees and migrants

The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.

Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Published on October 8, 2019        Author: 

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 1: Grade Inflation

Published on October 7, 2019        Author: 

Part 1 of this blog post will explore how the current narratives about the implementation of ECtHR judgments paint a misleading picture. In Part 2, a different set of statistics will be examined, in order to explore how well the implementation system is really functioning.

In some countries, exam results in schools and universities are improving every year. However, many doubt that this is because the students are actually doing better in their studies. The accusation is made that, though exam marks are improving, this is the result of tests being made easier, rather than the students becoming better educated. This “grade inflation” allows schools and universities to publish better results, but without the performance behind the results actually improving.

What applies to schools and universities can also apply to international institutions.

Over the last few years, the Council of Europe has advanced a consistent narrative about the state of implementation of judgments from the European Court of Human Rights. This narrative suggests that implementation is going very well indeed. Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 

In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.

Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 

On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?

To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.

Read the rest of this entry…

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Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 

With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

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Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Published on July 4, 2019        Author:  and

In the recent judgment of the European Court of Human Rights (the Court) in Ilgar Mammadov v Azerbaijan  (Mammadov 46(4)) examined under Article 46(4) infringement proceedings, the Grand Chamber found that Azerbaijan had failed to comply with the Court’s original judgment in Ilgar Mammadov (Mammadov No.1) by refusing to release political activist Ilgar Mammadov, who was arrested on politically motivated charges (in violation of a right to liberty and security under Articles 5 and the  prohibition to restrict rights for purposes other than those prescribed by the Convention under Article 18 of the Convention).

This case is not only novel in being the first to be considered under infringement proceedings (see blogs by Başak Çali and Kanstantsin Dzehtsiarou), but is also highly significant for the Court’s approach to the implications of politically motivated proceedings.  Until now the Court has been reluctant to clarify its position on whether trials and convictions can be explicitly held to be in ‘bad faith’ under Article 18 of the Convention. We argue in this blog that the Grand Chamber in this case (relating to Mr Mammadov’s arrest and pre-trial detention), went substantially further than the Chamber in the second case of the same applicant, Mammadov No. 2 (relating to his trial and conviction), and has paved the way for the Court to finally open the door to the applicability of Article 18 to a right to fair trial under Article 6, or risk incoherence. 

The Court’s approach so far to Article 18

Article 18 of the Convention provides that ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ There is debate about whether the wording of the provision limits its applicability to ‘restricted’ rights under Articles 5 and 8-11 of the Convention (see below). Read the rest of this entry…

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Drėlingas v. Lithuania (ECHR): Ethno-Political Genocide Confirmed?

Published on April 15, 2019        Author: 

The European Court of Human Rights on 12th of March issued a judgment in the case of Drėlingas v. Lithuania (Application no. 28859/16). The case at the ECHR was considered under Article 7 and focused on the principle of nullum crimen sine lege. However, in broader terms this case dealt with the definition of genocide, and the protected group issue in particular. This judgement continues a series of judgements related to Soviet mass repressions in the Baltic States after they were occupied and annexed by the Soviet Union and “sovietised” in a most brutal way from 1940 up to Stalin’s death in 1953. In fact, this case is a continuation of the case Vasiliauskas v. Lithuania (Application no. 35343/05), discussed on this blog previously

The main facts of the Drėlingas case are as follows: Drėlingas was an operative of the soviet repression structures (MGB/KGB) and in 1956 he participated in the arrest of one of the most famous anti-soviet armed resistance (partisans) leaders – A. R. (nome de guerre “Vanagas”) and his wife B. M. “Vanda”. After being captured, Vanagas was horribly tortured, maimed, then tried by the Soviet court and eventually executed, his wife was deported to Siberia. These events happened after the active armed resistance was almost over, while Vanagas and his wife were still on the run. After restoring Lithuania’s independence in 1990, Drėlingas was put on trial in 2014 and sentenced for his participation in genocide, as an accessory to the crime.

The last sentence perhaps needs further explanation. Back in the 1990s, Lithuania was one of a handful of countries that adopted a broader definition of genocide in its national laws; it included political and social groups together with national, ethnic, racial and religious. The main aim of this was to address the historic Soviet crimes. However, it soon became clear that the direct inclusion of political and social groups in the genocide definition created a conflict with the internationally accepted definition of genocide. Another approach was needed, and it was tested in the case of Vasiliauskas (mentioned above). Read the rest of this entry…

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