The Grand Chamber of the European Court of Human Rights will deliver its judgment in the case of Nada v. Switzerland on 12 September. The case concerns the applicant being prohibited from leaving an Italian enclave in Switzerland due to Swiss implementation of UN Security Council anti-terrorism sanctions, including a travel ban. For our previous coverage and a detailed preview of the issues arising in the case, see this post. More commentary will follow.
On August 1, the European Court of Human Rights (ECtHR) dashed hopes of Northern Rock shareholders to obtain compensation from the UK for the collapse and nationalization of British bank Northern Rock. The Fourth Section of the ECtHR unanimously dismissed the case Dennis Grainger and others v. UK (Application No. 34940/10) as manifestly ill-founded and inadmissible. The decision has broader ramifications. It suggests that member countries of the European Convention of Human Rights (ECHR) have a wide margin of appreciation in setting macro-economic policy in general and in the resolution of banking and financial crises in particular. The ECtHR decision suggests that creditors and other interested parties will face an uphill struggle in challenging measures taken in the context of financial crisis resolution before the ECtHR and in obtaining compensation. It is an important decision at the intersection of international finance and human rights. Investors holding the debt of Eurozone governments will take note.
The court fully endorsed the holding and approach of the English courts. Like the English domestic courts, it found that the assumptions that the valuer of Northern Rock shares was required to make pursuant to the Banking (Special Provisions) Act 2008 s.5 (4) did not violate the rights of shareholders under Article 1 of the First Additional Protocol.
Last week the Grand Chamber of the European Court of Human Rights delivered a major judgment in the case of Mouvement raëlien suisse v. Switzerland, no. 16354/06. This will certainly prove to be a leading European case with regard to content and viewpoint based restrictions on the freedom of expression in a public space. It is also notable because the Court was very severely split – 9 to 8 – which is not only a rarity, but highlights the controversial nature of the case and its uncertain precedential value for the future.
Very briefly, these were the facts: the Raelian movement is an organization that claims that aliens have visited the Earth, leaving us a message or two; that science (well, their science) should replace religion; and that the best form of government is a ‘geniocracy’, i.e. rule by the highly intelligent over the masses of the mediocre. The organization has been labeled a cult by many due to the demands it makes of its members; it has also been the subject of several child abuse scandals, since the organization’s founder apparently thought that children should be sexualized, and some of the organization’s leaders practiced what he preached. Today, however, the organization disavows that earlier part of their doctrine.
Here’s the Court’s own description of the particular facts of the case:
14. On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.
15. On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.
16. In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.
The decision was later upheld by the Swiss courts, essentially on the same grounds.
The question that the European Court was to answer was thus whether this ban was in accordance with the freedom of expression under Article 10 ECHR. Notably, the restriction on expression was based on both the content and the viewpoint of the message, seen not only as the pretty anodyne poster, but as the poster taken together with the content of the website to which it refers. However, the restriction on expression was not total, but was confined to the organization’s use of a dedicated public space, to which individuals do not have unconditional or unlimited access.
Today the European Court of Human Rights delivered its Grand Chamber judgment in Scoppola v. Italy (no. 3), App. No. 126/05). This is the Court’s latest foray into the prisoner voting saga, starting from its GC judgment in Hirst that the blanket ban on prisoner voting in the UK was disproportionate and a violation of Art. 3 of Protocol No. 1 to the Convention. A press release summarizing the judgment is available here; the judgment itself here. The GC ruling in Hirst was followed by several other cases, which I’ll not look in detail here – readers may wish to consult this post by Adam Wagner, as well as his excellent take on today’s judgment
What makes the whole prisoner voting issue before Strasbourg so interesting is how it reflects on the relationship between law and politics, and on the nature of judging. It is in the nature of human rights cases that resolving them almost invariablity requires value judgments, rather than some blind application of the law. Art. 3 of Protocol No. 1 does not give a clear answer one way or another as to whether a blanket ban on prisoner voting would be disproportionate; that is inevitably a moral and policy decision that the (international) judge needs to take. That decision may well lead to conflit with legislators. In order to avoid such conflicts as much as possible, the Court has normally paid much deference to domestic processes in the absence of a European consensus on the issue. When such consensus existed it would force the few recalcitrant states to conform; in the absence of consensus it would normally allow each state to go its own way. In Hirst, however, the Court may have overreached. While much of the criticism of that decision in the UK was of the cartoonish Daily Mail-type, it nonetheless raised serious concerns about the Court overriding national legislators on morally contested matters on which it was not necessarily any more competent than the democratically elected legislators themselves.
A couple of days ago the European Court of Human Rights decided a strange case, Stübing v Germany (no. 43547/08), judgment. An adult brother and sister engaged in consensual sexual intercourse, a punishable criminal offense in Germany and about a half of other European countries. The brother, applicant in this case, got a prison sentence. The other half of European countries do not criminalize adult incest. The issue before the Court was whether such a criminalization was consistent with the right to private and family life in Article 8 ECHR. The Court said that it was. For analysis, see this excellent post by Daniel Sokol on the UK Human Rights Blog.
What’s so fascinating about this case is that it is ultimately hard to pinpoint the moral, and hence legal justification for punishing adult incest, other than for the ‘yuck’ factor, i.e. a basically emotional response to the violation of a taboo. And this raises the specter of the justification for pure morals legislation generally, as e.g. with regard to the Naked Rambler, about whom I’ve written a few weeks ago. In other words, while the basis for most modern theories of morality or ethics, be they Kantian or utilitarian or what have you, is that morality is essentially a rational process that can be subjected to analysis through human reason, cases like these point to morality as an intuitive, emotional response in human beings. As a legal matter, the question is whether the simple fact that the community finds a particular practice to be incredbily disgusting is in and of itself enough to punish that practice through the mechanisms of the state. If, in other words, it is not okay for a state to criminalize homosexual intercourse merely because the majority of the population finds the practice to be disgusting (or found it such then) – see Dudgeon v. UK – how could it be okay to punish consensual adult incest merely because we find it to be disgusting?
In that regard, the European Court’s non-response to this question was quite predictable:
Yet another mala figura: Italy breached non-refoulement obligations by intercepting migrants’ boats at sea, says ECtHR
Francesco Messineo is lecturer at Kent Law School, Canterbury.
For a country so obsessed with the bella figura (loosely translated as ‘making a good impression’), these are not good days for Italy – at least as far as international law is concerned. Only a few weeks after having been told by the International Court of Justice that its Court of Cassation had misapplied rules on state immunity against Germany, the government found itself in the position of having to rely on those same rules against India in an intricate case involving Italian soldiers allegedly killing unarmed fishermen off the coast of Kerala. On this occasion, the Italian Minister of Justice made some spurious assertions as to the lack of Indian jurisdiction over the killing of its own citizens which have been legally untenable at least since one day in September 1927 (ignore Lotus at your peril…).
But there is more. Yesterday, the Grand Chamber of the European Court of Human Rights strongly and unequivocally condemned the Italian policy of intercepting migrants’ boats in the Mediterranean sea and returning their unidentified passengers to Libya (Hirsi Jamaa and others v. Italy, 23 February 2012, available here; Hirsi hereinafter). And rightly so – the policy was such a flagrant breach of Italian and European obligations concerning international protection from refoulement that most observers and protection institutions had already unanimously expressed concern. To name but a few, the United Nations High Commissioner for Refugees, the Council of Europe’s Committee for the Prevention of Torture, the European Commission, Amnesty International, and Human Rights Watch had all previously said that such ‘push-back’ operations in the high seas were illegal both under international refugee law and under international human rights law (Hirsi, -).
The Hirsi case arose in the context of the 2007 bilateral anti-immigration cooperation agreement between Libya and Italy which was fully implemented in early 2009. When the policy of interception and rejection at sea was put into effect, it ostensibly achieved some of its stated aims. The Lampedusa ‘reception centre’ was suddenly nearly empty – a very different image compared to previous years (and subsequent events of 2011). In 2009 alone, more than 800 Somali, Eritrean and Nigerian citizens were returned to Libya before even touching Italian soil. They were returned to Tripoli without regard for the fact that, as unwanted migrants in Lybia, many of them faced a real risk of torture, physical violence, rape, indefinite detention in overcrowded and unhygienic conditions, as well as further expulsion towards their countries of origins. (Hirsi, -).
The applicants in Hirsi were 11 Somali and 13 Eritrean citizens belonging to a group of about two hundred migrants intercepted on 6 May 2009 about 35 nautical miles south of Lampedusa by the Revenue Police (Guardia di Finanza) and swiftly transferred to Tripoli on Italian military ships. None of them was identified by Italian authorities before being handed over to Libyan authorities. When ordered to board the Italian military ships, the migrants were told that they were being transferred to Italy. Two of them died in unknown circumstances after their arrival in Libya. Some of the others were granted refugee status by UNHCR in Tripoli. One of them was granted refugee status in Italy after making a second successful attempt at crossing the Mediterranean sea. It seems undisputed that they were genuinely in need of international protection.
There are three crucial reasons why Hirsi is a fundamental decision. The first is that it clarified that the Court’s Soering jurisprudence on non-refoulement under Article 3 ECHR also applies in the high seas. This is bound to have important consequences not only for the debates over the interpretation of the term ‘jurisdiction’ in Article 1 ECHR, but also, arguably, for the analogous long-standing debate over the applicability of non-refoulement obligations arising from the Geneva Convention on Refugees in the high seas. Secondly, it is only the second time (after Čonka v. Belgium, no. 51564/99, 2002) that the Court finds a State to have breached Article 4 of Protocol 4 ECHR, which prohibits the ‘collective expulsion of aliens’. In order to reach such a conclusion, the Court had to interpret the term ‘expulsion’ somewhat counter-textually. Thirdly, Hirsi stands as a landmark judicial reaffirmation of the long-standing jurisprudence of the Court on the protection of migrants from the risk of torture and inhuman treatment, and must be read in the context of European migration policy. I will very briefly address these three questions in turn.
Just before the holidays the European Court of Human Rights rendered two important decisions in cases against the Russian Federation. First, a Chamber declared admissible the second interstate application filed by Georgia against Russia (Georgia v. Russia No. 2, App. No. 38263/08, available here). The case arises out of the 2008 armed conflict between Georgia and Russia; in the words of the Court, ‘The applicant Government submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained or went missing, thousands of civilians had their property and homes destroyed and over 300,000 people were forced to leave Abkhazia and South Ossetia. In their submission, those consequences and the subsequent lack of any investigation engaged the Russian Federation’s responsibility under Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.’
The cases raises important questions regarding the extraterritorial application of the ECHR, attribution of conduct by the separatist entities in Georgia to the Russian Federation, and the interplay between the Convention and international humanitarian law. Rather than deal with these matters in its admissibility decision, the Court quite rightly decided to deal with them on the merits (see esp. paras. 63-68, 71-75 of the decision). Importantly, the Court noted the lack of any derogation by the two states in the context of the armed conflict. This is bound to be a big one – and it seems likely that the Chamber will relinquish its jurisdiction to the Grand Chamber of the Court. (Another big case on the extraterritorial application of the ECHR is coming up for hearing before the Grand Chamber at the end of this month – Catan and Others v. Moldova and Russia (nos. 43370/04, 8252/05 and 18454/06). Dealing with human rights violations by the separatist Transnistrian authorities in Moldova, this is a sequel to the Ilascu case decided by the Court a few years back.)
Secon, there was the unanimous Chamber judgment in the Dubrovka theatre case – Finogenov and others v. Russia, nos. 18299/03 and 27311/03, press release, judgment). The case concerned the siege of the Dubrovka theatre by Chechen separatists in October 2002, when over 40 heavily armed terrorists equiped with explosives held almost a thousand people hostage in the theatre. The siege was (in)famously ended when the Russian authorties used an opiate gas to knock the terrorists out before storming the place, with the gas causing the deaths of 125 hostages. The families of some of these hostages lodged the application with the Court, claiming a violation of Article 2 ECHR by Russia. The Court held that there had been no violation of the Convention regarding the use of force and gas against the terrorists. It did, however, find that the rescue operation had not been well planned or implemented.
The case is very fact-specific, but I think I can say with some certainty that this will be a new leading case in the Article 2 pantheon, up there with McCann. It is notable for several developments. For example, despite Russia’s completely unsatisfactory cooperation with the Court in establishing the factual record (e.g. the documents of the Russian team that led the operation were all destroyed; Russia failed to answer the Court’s specific factual questions; Russia never disclosed exactly which gas it used, and so forth), the Court was prepared to be extremely deferential and flexible on the factual issues. Indeed, the Court almost entered an ‘IHL-mode’, quite explicitly deciding not to second-guess the Russian autorities’ decision to use force generally in order to subdue the terrorists, and their specific decision to use the opiate gas. The Court found a violation only because the medical rescue operation that followed the storming was manifestly poorly planned, with the authorities for example not even informing the doctors beforehand of the use of the gas. Some choice paragraphs are reproduced below the fold. Most importantly, the fact that the Court quite explicitly based its deferential approach on the Chechen Isayeva case dealing with the indiscriminate use of force shows much promise in providing needed flexibility in other factually complex cases that transcend conditions of normalcy, as e.g. in Georgia v. Russia. The Court awarded more than a million euros in compensation, and it is likely that Russia will appeal to the Grand Chamber – we’ll see what happens.
I’ve posted on SSRN an article which will be published in the EJIL next year on Al-Skeini and Al-Jedda before the European Court of Human Rights. The pre-print draft will be available on SSRN until the article comes out in the Journal. The abstract is below, and comments are welcome, as always.
The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.
HUDOC service has been intermittent this morning, but the judgments are now available – Al-Skeini v. UK, Al-Jedda v. UK – and they were well worth the wait. For more background, see my case preview and my thoughts on the alleged ’embassy exception.’ In brief, the UK government lost quite badly, while the Grand Chamber has effectively overruled the House of Lords on a number of points; the applicants have every reason to be pleased. In Al-Skeini, the Court held that (1) all of the applicants were within the UK’s Art. 1 ECHR jurisdiction and (2) that the UK has not held an Art. 2-compliant investigation in five of the cases, all but that of Baha Mousa where there is an ongoing public inquiry. In Al-Jedda, the Court held that (1) Mr. Al-Jedda’s detention was attributable to and within the jurisdiction of the UK, and (2) as the UK had no obligation under a UN Security Council resolution to detain preventively and without judicial review, Art. 103 of the UN Charter was not even at play, and that therefore Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR. In both cases the Court awarded substantial damages and costs. The financial and policy implications of the two cases are immense.
The most important bits are of course in the Court’s reasoning, as we will now see. Obviously, this analysis is relatively provisional and on short notice. However, it is clear that the Court has articulated some very important principles and that these will be leading cases on the various issues for many years to come. Importantly for precedential value, the Court was unanimous or near-unanimous in both cases . Whether the Court’s reasoning is persuasive on all counts will undoubtedly be a matter of controversy – I at least am certainly not persuaded on some of the counts, though I very much like the human rights-friendly end results. Without further ado, let us now move to the good, the bad, and the ugly in the two judgments.
(Warning! longish post).
The European Court has announced today that on Thursday next week, 7 July, it will hand down its long awaited Grand Chamber judgments in Al-Skeini and Al-Jedda, both against the United Kingdom. See more in Waiting for the Als, and in my case preview. We will of course strive to have quick commentary on the judgments once they come out – let’s hope they were worth the wait!