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Home International Tribunals Archive for category "European Court of Human Rights" (Page 14)

The Role of the European Convention on Human Rights in the Wake of Kiobel

Published on July 25, 2013        Author: 

Jodie KirshnerJodie Adams Kirshner is the University Lecturer in Corporate Law at the University of Cambridge and a fellow of Peterhouse College, Cambridge. Her research concerns cross-border and comparative issues in corporate law. She contributed to an amicus brief to the U.S. Supreme Court in Kiobel in support of petitioners.

SCOTUSThe decision of the U.S. Supreme Court (photo credit) in Kiobel v. Royal Dutch Petroleum has generated concerns that a governance gap will emerge for corporations that commit human rights violations abroad. As American courts become less open to extraterritorial claims, however, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Kiobel gives the European Court of Human Rights the occasion to interpret the European Convention on Human Rights to require the right to an extraterritorial forum and counterbalance the shift that has occurred in the United States.

Article 6 of the European Convention on Human Rights offers a potential pathway to jurisdiction over extraterritorial corporate human rights claims. The European Court of Human Rights (ECHR) has already interpreted Article 6 of the Convention broadly, and some national courts that are signatories to the Convention have suggested that the article could support extraterritorial jurisdiction. Article 6 guarantees the right to a fair trial. Subsection 1 states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Read the rest of this entry…

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Russian Prisons: Still inhuman, Still degrading

Published on February 27, 2013        Author: 

Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford. She was previously a consultant to UNICEF and has interned with the Office of the United Nations High Commissioner for Refugees in Pakistan

This month, the European Court of Human Rights handed down two more judgments finding Russia to be in breach of Articles 3 and 13 of the Convention with respect to the appalling conditions in its remand centres, and the lack of a domestic remedy for claims of ill-treatment in detention. In the cases of Yefimenko (February 12) and Zuyev (February 19) (not to mention last month’s contribution in Reshetnyak, January 8) the Court’s First Section unanimously found violations of Articles 3 and 13 by the Russian Federation, yet again. These judgments are significant because they reflect the failure of the European Court’s ‘pilot judgment’ policy to stem the flow of applications by detainees in Russian prison and remand facilities.

The problem with Russian prisons is symptomatic of the wider issue of the clogging of the Court by so-called ‘repetitive applications’ (defined by the Court as those relating to ‘structural issues in which the Court has already delivered judgments finding a violation of the Convention and where a well-established case law exists’). This problem persists despite the various efforts by contracting states to reform the structural problems of the Court, and the Court’s introduction of a ‘priority policy’ to manage its extensive workload. The Court’s provisional annual report for 2012 (available here) admits there are almost 30,000 pending cases allocated to judicial formation against Russia alone. The second ‘worst offender’ is Turkey, with a little over half of that number, and Italy in a close third place with almost 15,000 pending cases (see p149 of the report). Those three states together account for almost half of the 128,000 cases currently pending before the Court. The violations by country-and-Article breakdown (p152-3 of the report), reveals that in 2012 there were 75 findings of violations of Article 3 by Russia last year, which amounts to 27% of the total number of Article 3 violations across the contracting states in that period. Russia has a serious problem in its detention centres—and it seems that the Court (not to mention the Council) has a serious problem with Russian compliance with the Convention. Read the rest of this entry…

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Abortion on Demand and the European Convention on Human Rights

Published on February 23, 2013        Author: 

Director of the European Centre for Law and Justice (ECLJ), Expert at the Council of Europe. This article synthesises a section of a study on “Abortion and the European Convention on Human Rights” that will be published in the coming weeks.

The European Court of Human Rights (the Court) has issued several judgments on abortion, especially in recent years since the fundamental ruling of the Grand Chamber in A. B. and C. v. Ireland of 2010. In those cases, the Court found violations of the European Convention on Human Rights (the Convention) in specific situations where the life or the health of the pregnant woman was endangered, or when the pregnancy was the consequence of a rape. The purpose of this article is firstly to identify the rationale of the Court on the matter of abortion, and secondly to observe how it applies to the vast majority of abortions practiced, i.e. “abortion on demand”, also called on request:  abortions that are not justified by a matter of health, life or rape, but by the free will of the woman.

Through its various rulings, the Court explicitly declared that abortion is not a right under the Convention: there is no right to have an abortion (Silva Monteiro Martins Ribeiro v. Portugal) or to practice it (Jean-Jacques Amy v. Belgium). The prohibition per se of abortion by a State does not violate the Convention, (Silva Monteiro Martins Ribeiro v. Portugal see also the case of the first two applicants who unsuccessfully complained of the prohibition of abortion on demand in A. B. and C. v. Ireland), but States can allow it for the sake of competing rights guaranteed by the Convention, i.e. the life and the health of the pregnant woman. In other words, it can be said that the Court tolerates an abortion if it is justified by a proportionate motive protected by the Convention. Read the rest of this entry…

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Evidence Obtained by Torture: Is it Ever Admissible?

Published on November 28, 2012        Author: 

Natasha Simonsen is a graduate student in the Faculty of Law, University of Oxford

Earlier this month, the UK’s Special Immigration Appeals Commission (‘SIAC’) ordered the release from detention of controversial Jordanian-born cleric Abu Qatada. SIAC held that he could not be deported to Jordan, because there was a ‘real risk’ that evidence obtained by torture would be admitted against him in proceedings in Jordanian courts (read the judgment here). The cleric was released on highly restrictive bail conditions on Tuesday of last week, and the scale of public outrage was such that police had to intervene to protect him from protesters outside his home. The Home Secretary may appeal the decision, and there are new rumours that Abu Qatada plans to sue the government for damages for wrongful imprisonment. This post addresses the implications of SIAC’s decision for the exclusionary rule for  evidence obtained by torture.

The Strasbourg Court’s decision

To fully explain the SIAC decision we must return to the European Court of Human Rights’ decision in Abu Qatada v UK from January of this year. To the exasperation ofmany British politicians, including the Prime Minister, in that case the Strasbourg Court held that Abu Qatada could not be deported to Jordan, because the trial that he faced there would likely involve the admission of torture evidence. The two key witnesses against him had been beaten on the soles of their feet to extract confessions—a torture technique known as falanga—and the Jordanian State Security Court was unlikely to exclude such evidence [at 285 in the judgment]. This meant, in the Strasbourg Court’s view, that there was a ‘real risk’ that Abu Qatada would face a flagrantly unfair trial in breach of Article 6 of the Convention. The Court used strong language, stating that that ‘the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial’ [at 267]. Elsewhere in the judgment, the Court stressed that the exclusionary rule was inextricably bound up with the rule of law [264]. Read the rest of this entry…

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No Detente on Prisoner Voting and the ECHR in the UK

Published on October 24, 2012        Author: 

In the wake of the European Court’s judgment last May in Scoppola v. Italy, in which it more or less gutted its prior cases on prisoner voting rights (see my previous post on prisoner voting and strategic judging for more background), the UK governmental structures have been debating how to respond in their long-drawn out altercation with Strasbourg. Scoppola essentially gave the UK an opening to end the dispute – all it needed to do to comply with the Court re-interpreted judgment in Hirst was to pass some essentially cosmetic changes to its existing legislation that would ‘strike the proper balance’.

The opportunity is not yet completely lost, if cooler heads prevail. The UK government is of course not monolithic, and some parts thereof would rather put the whole thing to rest. But that process is political more than it is legal, and after today’s performance by David Cameron at the PM questions in the House of Commons, a detente between the UK and Strasbourg seems increasingly unlikely.

“No one should be under any doubt – prisoners are not getting the vote under this government,” he told MPs, in answer to a leading question by a Labour MP strongly urging him to continue defying the Court. The whole exchange is available at BBC News, and the short video bears watching, if nothing else then for witnessing the extent of the cheers among the assembled parliamentarians in support of the Prime Minister’s position.

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Grand Chamber Judgment in Catan and Others

Published on October 21, 2012        Author: 

On Friday the European Court of Human Rights delivered its Grand Chamber judgment in Catan and Others v. Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06, yet another case on the ECHR’s extraterritorial application, dealing in particular with the Convention’s application to the separatist republic of Trandniestria in Moldova (link to judgment). The case is in effect a sequel to the Court’s earlier judgments on Transdniestria in Ilascu and Ivantoc, this time dealing however with a significantly different factual pattern.

The applicants were Moldovans who lived in Transdniestria and who were at the time of lodging the application pupils at three Moldovan-language schools and their parents. They complained under Article 2 of Protocol No. 1 to the Convention and Article 8 of the Convention, taken alone and in conjunction with Article 14 about the closure of their schools and their harassment by the separatist Transdniestrian authorities. The reason for this harassment was basically a policy of Russification by the Transdniestrian authorities whereby schools in the region could only operate in and teach the Moldovan (i.e. Romanian) language as written in the Cyrillic alphabet, rather than the much more commonly used Latin one. In short, the applicants’ education became embroilled in language politics, very similar for instance to those in the Balkans.

What makes this case particularly interesting is the relationship between Article 1 ECHR notion of state jurisdiction, as the threshold for the existence of (all or some) state obligations under the Convention, and the attribution of conduct under the secondary rules of the law of state responsibility. In Ilascu, paras 392-3, the Court held that

[T]he “MRT” [Transdniestria], set up in 1991-92 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation. … [T]here is a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate, as the Russian Federation’s policy of support for the regime and collaboration with it continued beyond 5 May 1998, and after that date the Russian Federation made no attempt to put an end to the applicants’ situation brought about by its agents, and did not act to prevent the violations allegedly committed after 5 May 1998.

Ilascu was notable for several reasons. First, it apparently applied the spatial model of Article 1 jurisdiction as control of an area while lowering the threshold of the needed control (the ‘decisive influence’ bit). Secondly, it completely confused jurisdiction with responsibility; it was utterly unclear from the case whether the Court considered all acts of the MRT to be attributable to Russia, apparently on the basis of a sui generis rule on attribution of conduct that hardly seemed compliant with the ILC’s work on state responsibility or the jurisprudence of the ICJ, or rather whether Russia was held responsible for failing to comply with a positive obligation to prevent human rights violations by non-state actors (the MRT) operating in an area under its jurisdiction. Third, the Court also found that Moldova had positive obligations in the MRT despite having lost control of the territory, a (human rights-friendly) ruling that in my view compromised the purely factual nature of the Art 1 jurisdictional tests for the sake of a rather vague positive obligation which did not amount to much in practice anyway.

Here comes Catan, which provided the Court with the opportunity to revisit some of these points. What distinguishes Catan and Ilascu is primarily the lapse in time with regard to the facts of the two cases, during which Russia’s control over Transdniestria arguably decreased. Moreover, unlike in Ilascu Russian authorities had no involvement in the harassment of the applicants and the interference with their right to education. The Court thus had to build upon Ilascu, and that it did, producing a rather mixed (if again human rights-friendly) outcome. In brief, it found that both Moldova and Russia retained jurisdiction over Transdniestria; that Moldova this time did comply with its positive obligations; but that Russia was to be held reponsible for a violation of Art 2 of Protocol 1, and was as a consequence liable for significant damages.

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The Innocence of Satirists: Will Caricatures of the Prophet Mohammad Change the ECHR Approach to Hate Speech?

Published on September 26, 2012        Author: 

Dr David Keane is Senior Lecturer in Law at Middlesex University.

The global reaction to the trailer for the film The Innocence of Muslims has prompted the banning of the video-sharing website Youtube in three States, Afghanistan, Bangladesh and Pakistan, with Council of Europe member Russia mooting such a move. Similarly the publication of the Charlie Hebdo cartoons of the Prophet Mohammad in France, and the resulting international protests, appear to reignite questions of religious defamation and freedom of expression generated by Jyllands-Posten in 2006. To a certain extent the arguments appear unchanged, but there are elements to these recent controversies worth exploring.

Charlie Hebdo has already been in the French courts, in 2007, but was acquitted, while the Danish Public Prosecutor decided not to pursue criminal proceedings against Jyllands-Posten. Yet the debate this time around seems less strident in terms of freedom of expression. The BBC points to a somewhat divided French press, albeit one that emphasises freedom of expression within the parameters of the law, with one paper asking whether these are “some cartoons too many”. This is significant given that newspapers of all political colours are the frontline on freedom of expression. Guy Birenbaum on the Huffington Post (only available in French) writes: “Come on Charlie, just between ourselves, you don’t have the feeling that this is old hat? Already seen, already read? Where is the subversion, the insolence, and most of all, the humour?” He concludes that mocking Islam has become something of a national sport in France and as a result has lost its subversive value. In this atmosphere, a prosecution appears a little more possible.

Such a prosecution would almost certainly be challenged before the European Court of Human Rights. Article 10 of the European Convention reads:  “1. Everyone has the right to freedom of expression… without interference by public authority … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others (…)”

In order to uphold the cartoonists’ rights under Article 10(1), the Court would have to go against its past jurisprudence and rule the interference unnecessary under Article 10(2). That would mark a new departure in terms of the European approach to hate speech, which has, perhaps understandably, been marked by the World War II experience and consistently upheld convictions for speech which attacks racial, ethnic or religious groups, or denies wartime atrocities.

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Nada v. Switzerland: The Continuing Problem of Attribution of Conduct Taken Pursuant to Security Council Resolutions.

Published on September 25, 2012        Author: 

Dr Arman Sarvarian, Lecturer in Law at the University of Surrey specialising in public international law particularly ethical standards for counsel appearing before international courts and tribunals.

Editors’ Note: This post was originally a comment on the post by Marko but we have decided to move it up

One of the many interesting issues raised by the recent judgment of the European Court of Human Rights in Nada v. Switzerland is attribution of responsibility (point 2 in Marko’s earlier post on this decision). I would like to offer a few tentative thoughts on the handling of attribution of responsibility by the Court. In my view, the judgment appears to have continued a muddled and inconsistent line of cases dealing with the attribution to Member States and/or international organisations concerning conduct pursuant to UN Security Council resolutions or other joint operations under the aegis of an international organisation such as NATO or the EU (e.g. – Bosphorus v. Ireland, Behrami and Saramati v. France and others, Beric v. Bosnia and Herzegovina, Al-Jedda v. United Kingdom, Al-Skeini v. United Kingdom, Bankovic v. Belgium and others).  Of course, the rules of attribution for international organisations remain nebulous and a delicate work in progress but the Court’s handling could be improved. I should emphasise that I am working on a draft conference paper on the potential consequences of EU accession to the ECHR for the law of international responsibility focusing on Common Foreign and Security Policy operations pursuant to UN Security Council resolutions, so my comments here are jejune and tentative.

The respondent argued that the application was inadmissible ratione personae and ratione materiae because the impugned measures had been based upon Security Council Resolutions 1267 (1999) et seq. which, per Articles 25 and 103 of the UN Charter, were binding and prevailed over any international agreement. This argument, and even more so that of France as intervener, used both ‘hierarchy of norms’ and ‘attribution’ language. On the one hand, obligations emanating from Security Council resolutions displace obligations arising under the Convention by virtue of Articles 25(2) and 103 of the Charter (cf. Lockerbie). On this approach, there could have been no infringement of Convention rights because those rights were displaced with respect to this applicant. On the other hand, the same obligations arising out of the resolutions rendered the alleged infringement of the applicant’s Convention rights attributable to the UN and thus, per the ‘Monetary Gold principle’, inadmissible ratione personae before the Court. This was the outcome of the much-criticised Behrami and Saramati decision.

The Court’s analysis (at paras 117-123) appears to skirt the problem of attribution. Read the rest of this entry…

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Trivia: Cases Where Judge Votes Against National State or Appointing Party

Published on September 20, 2012        Author: 

In international tribunals it is often the case that a judge will vote in favour of a State that appoints that particular judge or that a judge will vote in favour of their State of nationality where that State is involved in a case before the tribunal. Sometimes, the suggestion is made that these facts show that judges have some sort of bias in favour of their national State or in favour of the State or party that appointed them. This suggestion of bias might well be an overstatement given that, at least in the case of the ICJ, many times the national judge or ad hoc judge, though voting in favour of their own State or the State that apointed them, is also voting with the majority.

The case of Velkhiyev v. Russia, a decision of the European Court of Human Rights (from July 2011), is a very interesting one with regard to the question of how judges vote in cases involving their national State. In that case, the Court found by six votes to one that Russia had NOT violated Art. 3 of the European Convention on Human Rights (prohibition of torture, inhuman or degrading treatment or punishment) with regard to 6 of the applicants in the case. The sole dissent on that question was Judge Anatoly Kovler – the Russian judge! He would have found that Russia had violated that provision. So in this case, the judge voted against his State of nationality when the majority would have found in favour of that State. I suspect that this is very rare indeed. So my question today is:

Are there any cases when a judge in an international tribunal has voted against his or her national State or against the party that appointed him or her but where the majority of the tribunal would have found in favour of that State?

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European Court Decides Nada v. Switzerland

Published on September 14, 2012        Author: 

As announced, the Grand Chamber’s judgment in Nada v. Switzerland, no. 10593/08 is available here. I can’t blog about it more extensively as I’m in Valencia right now for the ESIL conference, but the gist of the judgment is as a follows:

1) The applicant wins, on relatively narrow grounds under Article 8, and more broadly under Article 13 of the Convention. When examining Article 8, the Court engages in its assessment of the relationship between the ECHR and state obligations under the UN Charter, specifically UNSC resolution, and the effect of the supremacy clause in Article 103 of the Charter.

2) In that regard, the Court quite correctly finds that while the applicant’s listing by the Sanctions Committee of the UNSC was attributable to the UN, the implementation of the sanctions by Switzerland was attributable to Swtizerland itself (para. 121). The Court then finds (para. 122) that:

The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.

Note that the Court here skirts the non-obvious question of the ECHR’s extraterritorial application (a point that as far as I am aware was not argued by the respondent government). That the implementation of the travel ban imposed against the applicant and Switzerland’s decision to deny him access to Swiss territory in order to leave the 1.6 sq km Italian enclave of Campione were undoubtedly attributable to Switzerland does not ipso facto entail that the applicant had rights vis-a-vis Switzerland under the Convention; the former is an issue of attribution of conduct, the latter of the threshold criterion for the existence of a legal obligation. The Court does not explain under what theory exactly the applicant had rights against Switzerland even though he does not live in Switzerland proper, nor how its position is to be squared with its prior case law on the matter (cf. Bankovic in particular, Al-Skeini notwithstanding).

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