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

Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria

Published on October 29, 2018        Author: 
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This past weekend Irish voters decided, by an overwhelming majority, to amend the Irish Constitution so as to decriminalize blasphemy. Just a few days before this referendum, however, a unanimous Chamber of the European Court of Human Rights gave its blessing to the criminalization of blasphemy, in all but name, in its judgment in E.S. v. Austria, no. 38450/12.

I have now read this judgment several times. Each time I read it I was left more disturbed. It applies the Court’s previous troubling precedents in this context – such as the notorious judgment in Otto-Preminger-Institut v. Austria – wholly uncritically, while even going beyond them in policing offensive speech. It unpersuasively tries to draw a distinction between blasphemy laws, which categorically impermissibly infringe on the freedom of speech, and the Austrian law at issue, as interpreted and applied by Austrian courts, which according to the Court strikes the right balance between the freedom of speech and the freedom of religion. As I will explain, the Court’s distinctions are essentially meaningless and incapable of being applied in any non-arbitrary way, leading us not to a slippery slope of a further erosion of free speech, but to a cliff. Its reasoning lacks rigour and fetishizes the national margin of appreciation. Worst of all, the judgment will likely do nothing to promote religious tolerance in Europe, but will only help to further the narrative of Islamophobic closet neo-Nazis (who are, by the way, already in power in Austria, and not for the first time) that they are free speech martyrs , victimized in their own country by horrible minorities, elites and human rights lawyers.

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Painful Relations between the Council of Europe and Russia

Published on September 28, 2018        Author:  and
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During the forthcoming October part-session of the Parliamentary Assembly of the Council of Europe (PACE), it will vote on amending its rules of procedure. Normally such technical changes do not attract much public interest but this vote certainly will. Due to inappropriate pressure, considered by many as blackmail, the Russian (parliamentary) authorities have suggested that the Assembly’s rules ought not to permit the exclusion of national delegations from the Assembly. In other words, the Assembly should take away from itself its ultimate sanction, namely excluding a parliamentary delegation of the state that refuses to comply with Council of Europe’s fundamental values: human rights, the rule of law and pluralistic democracy. This can only be done once attempts to admonish or reprimand a state which breaches the rules of the democratic club have failed.

That said, the Committee of Ministers, the other statutory body of the Council of Europe, can suspend or expel a state which seriously violates the club’s rules. Expulsion is however a politically complex exercise. Article 8 of the Organisation’s Statute specifies that if a member state seriously violates founding principles of the rule of law and human rights, the Committee of Ministers can so decide. Read the rest of this entry…

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Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK

Published on September 24, 2018        Author: 
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On 13 September 2018, the European Court of Human Rights ruled in three consolidated cases brought by 14 human rights organisations and 2 individuals against the UK government’s mass interception program and its access to the intelligence gathered by other governments, including the United States (Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.)

As noted already by Marko Milanovic, these cases are nuanced, complex, and long. I intend to focus here on one aspect, namely the way the Court assessed the intelligence sharing claim brought by the applicants (paras 416-449.) This assessment is noteworthy as that claim presents an issue of first impression for the Court. As the judgment itself notes, “this is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime” (para 416). (It is worth noting, however, that the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08 also touches upon this issue.)

The applicants’ intelligence sharing claim centred on the revelations, contained in disclosures by Edward Snowden, that the UK government has access to information collected by other foreign intelligence agencies, and most notably the U.S. National Security Agency (NSA). In particular, these revelations suggest that the UK government has direct and unfettered access to raw data intercepted by other governments, which it can then filter, store, analyse and further disseminate. They further suggest that the UK government has similarly broad access to information stored in databases by other governments.

From a human rights law perspective, the fundamental question raised in this case is the nature of the interference and therefore the applicable test to apply to such interference. Read the rest of this entry…

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ECtHR Judgment in Big Brother Watch v. UK

Published on September 17, 2018        Author: 
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Last week the European Court of Human Rights issued a highly anticipated blockbuster Chamber judgment in Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.

This is the first mass electronic surveillance case to be decided against the UK after the Edward Snowden revelations, and it touches upon numerous issues. The judgment is nuanced, complex, and long. It addresses key questions such as the proportionality of bulk interception programmes much more directly and with greater sophistication than the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08, which was decided by a different Chamber while this case was being deliberated, and which also upheld a bulk surveillance programme (see here for Asaf Lubin’s take on Just Security).

The judgment is too rich to summarize easily, so I will only set out some key takeaways (for an extensive discussion on surveillance and privacy in the digital age, see my 2015 Harvard ILJ piece).

First, and most importantly, the judgment is a mixed bag for privacy activists: while the Court finds that the UK’s surveillance programme under the now-defunct Regulation of Investigatory Powers Act (RIPA) was deficient in important respects and in violation of Article 8 and 10 of the Convention, it at the same time normalizes such mass surveillance programmes. In particular, the Court decided that bulk interception programmes are not categorically disproportionate, as privacy activists have argued. Second, in a similar vein, the Court finds that prior judicial authorization is not indispensable for the legality of bulk interception, again contrary to what privacy activists have argued, even if prior judicial authorization could be seen as best practice (note that under the new 2016 Investigatory Powers Act the UK has moved to a double-authorization system which involves both a minister and an independent quasi-judicial commissioner).

Here are the key paragraphs (warning – extracts from the judgment make this a lengthy post):

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Supreme Court of Spain: UN Treaty Body individual decisions are legally binding

Published on August 1, 2018        Author: 
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The Spanish Supreme Court has established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State. The Court ordered Spain to pay €600,000 in compensation to Ángela González for the responsibility of its authorities in relation to the death of her daughter. Her daughter was murdered by her father in an unsupervised visit authorised by a judge. National courts dismissed Ángela’s case, but the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) found a breach of her human rights. The Supreme Court has now affirmed that the State must comply with the Committee’s decision. This article discusses the significance of the case and the principle established by it.

Ángela González:  from domestic violence up to the United Nations (1996-2014)

Ángela’s daughter Andrea was born in 1996. Ángela’s partner subjected her to frequent physical and psychological violence. Ángela lodged no less than 30 complaints to the police and to the court. Her partner was convicted for one minor offence and ordered to pay a small penalty for harassment. Only one judicial order protected the minor and lasted for two months.

Marital separation was ordered in November 2001. The judge did not mention the violence as the cause of separation. The order allowed unsupervised visits between father and daughter, and the father was granted the use of the family dwelling. Ángela appealed the decision but was unsuccessful. Andrea had repeatedly expressed her desire not to see her father. In April 2003, the father killed the 7-year-old girl and then committed suicide during an unsupervised visit. Read the rest of this entry…

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Unlawful Killing or Self Defence? Some Thoughts on the ECHR Decision in Makarova v. United Kingdom

Published on July 31, 2018        Author: 
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The admissibility decisions of the European Court of Human Rights (ECHR) do not usually attract larger attention. There are, of course, well-known exceptions, such as Banković and Others v. Belgium and Others. The recent decision in Makarová v. the United Kingdom (see here), rendered on 5 July 2018 by a committee composed of three judges, will certainly not become one of these exceptions. Although the decision has made front pages news in the Czech Republic, the country of origin of the applicant, this has more to do with the factual background of the case than with any legal intricacies involved in it. Despite that, the decision, while not necessarily incorrect, has some interesting and possibly controversial aspects that might deserve closer scrutiny.

Facts of the Case

The facts are well-known and largely uncontested. The Czech citizen Zdeněk Makar, a 31-year-old brother of the applicant, was killed in September 2016 in London, where he had been living for 10 years. The person responsible for his death was a 29-year-old UK citizen Raymon Scully. Makar met Scully, who was in the company of younger friends, in a local takeaway restaurant. They had a dispute, after which Makar left the restaurant. Scully and his friends followed him down the street, where Scully attacked the unarmed Makar with a bite lock. According to a witness, “he swung the improvised weapon and struck Mr Makar to the left side of his head, catching him behind the ear and knocking him to the ground where he then struck him at least twice more”. While Mr Makar was dying in the street, Scully and his friends left without providing first aid or calling ambulance.

The trial with Scully took place between 21 March and 3 April 2017 at the Central Criminal Court in London, and involved a jury composed of twelve lay persons. The members of the jury had to decide whether the act committed by Scully was to be qualified as a murder (intentional killing), manslaughter (unintentional killing) or self-defence. They were informed about the legal requirements of these three qualifications. The trial judge also explained to them that Scully’s good character (i.e. lack of previous criminal convictions) could be taken into account when considering the case. On 3 April 2017, the jury delivered a majority verdict concluding that the defendant had acted in self-defence (defending one of his friends). Scully was acquitted of both murder and manslaughter and set free.

The verdict caused outcry in the Czech Republic, where it was interpreted as a sign that in the pre-Brexit UK, the lives of migrant workers from Central Europe were not given much weight. The Czech Ministry of Foreign Affairs issued a diplomatic note, in which it requested the documents related to the case and “assurance that the nationality /…/ had no influence on the judgment”. The Ministry furthermore announced that it would provide assistance to Makar’s sister, Adéla Makarová, in bringing the case to the ECHR. Makarová lodged the application to the Court on 4 September 2017. On 5 July 2018, the Court declared the application manifestly ill-founded and, hence, inadmissible.

ECHR Decision

The application relied on Articles 2 (right to life) and 13 (right to an effective remedy) of the European Convention on Human Rights. With respect to the former, the applicant argued that the UK (i.e. England and Wales) criminal system exhibited structural deficiencies in that: a) the proceedings failed to produce clear reasons for the defendant´s acquittal; b) the UK test for self-defence allowed instances of unlawful killing to go unpunished; c) the UK law did not criminalize intentional omissions to provide first aid. Alternatively, the applicant argued that a proper application of the domestic could not have led the jurors to the conclusion they had reached. With respect to Article 13, the applicant complained about the absence of an appeal against an acquittal by a jury in criminal proceedings.

The Court rejected all these arguments. It concluded that the UK satisfied the procedural obligation under Article 2(1), because: a) the Convention does not require jurors to give reasons for their decision; b) the subjective test of self-defence used in the UK does not violate Article 2;c) Article 2 does not impose a positive obligation to criminalise intentional omissions. As to the alternative argument, the Court repeated that there had been sufficient safeguards against arbitrariness.

With respect to Article 13, the Court simply recalled that this provision only applied where an individual had an arguable claim to be the victim of a violation of a Convention right. Since the Court already found the applicant’s complaint under Article 2 manifestly ill-founded, there was no such arguable claim and the complaint under Article 13 was declared manifestly ill-founded as well. Read the rest of this entry…

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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 
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Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

 

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Irregular migration after the Aquarius incident: moving beyond the law. A reflection on Fink and Gombeer

Published on July 5, 2018        Author:  and
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Introduction

Last month, EJIL: Talk! published a piece by Fink and Gombeer on the legality of Italy and Malta’s recent failure to provide a safe haven to a rescue vessel Aquarius. Essentially, the authors concluded that the refusal by these states to open their harbours is ‘regrettable, at the very least, but not necessarily unlawful.’ On their view, for the reasons elaborated in their analysis, neither the law of the sea nor human rights law have been ‘evidently’ breached. It follows that these two branches of law, in the context of ‘Aquarius-like incidents’, provide rather no avail to asylum seekers; in other words: law has its own limits.

The fate of Aquarius and her passengers is yet another example of an endless list of scenarios where people from predominantly war-torn, repressed or impoverished territories often attempt to irregularly cross international borders; a large number of them seeking help, safety and a better life. This and similar events illustrate not only that the handling of the arrival of asylum seekers, especially in Europe, has fostered multiple crises, but also that irregular migration will not cease to occur. Hence, the need for a long-term, responsible and visionary solution is evident.

Fink and Gombeer reflect de lege lata, and their diagnosis is valid and all the more relevant nowadays, de lege ferenda, as the governance and management of migration is largely being reformed, on multiple levels, precisely to address contemporary challenges and expectations. Among others, the European Union (EU) attempts to reform its migration and asylum policy, predominantly the so-called Dublin system, and the United Nations (UN) is expected to adopt its Global Compact on Migration by late 2018.

Having read Fink and Gombeer’s analysis, we cannot help but reflect on their main conclusion in light of these reforms. These authors basically identify a ‘gap’: the law has its own limits. We, in turn, reflect further on filling the said ‘gap’. We ask what can be done to overcome the limitations of law in order to ensure more holistic protection of asylum seekers?

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The Aquarius incident: navigating the turbulent waters of international law

Published on June 14, 2018        Author:  and
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Between Saturday 9 June and Sunday 10 June, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on Italian territory. This, Italy’s new Minister of the Interior Matteo Salvini announced, would be Italy’s new policy for any NGO vessel rescuing migrants in the Mediterranean.

Italy’s instructions ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then himself denied the ship to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither of them gave in by offering safe haven.

On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain could facilitate disembarkation of all 629 rescued individuals in the port of Valencia. When it appeared that this journey would be too dangerous for passengers and crew of the Aquarius and the Valencia-plan seemed off the table again, Italy offered its ships to facilitate safe passage to Spain.

This whole episode raises a broad variety of questions, but one stands out: Are Italy and Malta violating international law by not allowing the Aquarius to find a safe haven in one of their ports? Two legal regimes are particularly relevant in this respect: the law of the sea and international human rights law. As we argue, neither provides much clarity in relation to Aquarius-like incidents. Read the rest of this entry…

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High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Published on May 14, 2018        Author: 
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The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. Read the rest of this entry…

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