Home International Tribunals Archive for category "European Court of Human Rights" (Page 16)

European Court Decides Al-Skeini and Al-Jedda

Published on July 7, 2011        Author: 

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).

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The Als Are Coming!

Published on July 1, 2011        Author: 

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!

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Waiting for the Als…

Published on June 6, 2011        Author: 

This week will mark a full year since the Grand Chamber of the European Court of Human Rights held oral hearings in Al-Skeini and Al-Jedda (see my preview here) – and still no judgment(s). I’m pretty sure that’s some kind of record. And so we wait…

In all fairness to the Court, the probable reason for the delay is that other cases have popped up at the same time, cases which overlap to a significant extent with Al-Skeini and Al-Jedda, and which therefore call for a coherent and systematic solution. Think for example of Nada v. Switzerland, heard only a few months ago, and like Al-Jedda dealing with Security Council sanctions. Also, later this month the GC will be holding hearings in Hirsi v. Italy, in which at issue is the extraterritorial application of the ECHR to illegal immigrants intercepted on the high seas by Italian warships (cf. Medvedyev v. France). It’s no wonder the Court is taking its time, and of course there may be quite a bit of disagreement among the judges as to how to deal with these very sensitive matters.

And so, while we’re waiting for the Als, I thought I might engage in some shameless self-promotion (and when have I ever missed an opportunity to do so?). My book on the Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is about to come out with OUP, and to good bookstores near you. As it would only be fair for my bank account to soon start overflowing with royalties, I thought I might entice potential readers with the following extract from pp. 154-160 of the book, dealing with the so-called ’embassy exception’ for the extraterritorial application of the ECHR.

Recall that the House of Lords in Al-Skeini held that the ECHR cannot apply to five of the applicants killed in Basra by UK troops on patrol, as Iraq was outside the ECHR’s espace juridique. However, the ECHR did apply to the sixth applicant, Baha Mousa, who was killed by UK soldiers while in detention, as a UK military prison in Iraq supposedly had a special status in international law, a status analogous to an embassy. We’ll (soon?) see what the European Court does with this in Al-Skeini, but here are some thoughts of my own:


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A Comment on Lautsi

Published on March 19, 2011        Author: 

Dr Lorenzo Zucca is Reader in Jurisprudence at the King’s College London School of Law.

Jesus can be left hanging:  A Pontius-Pilate-like Strasbourg Court decided not to remove him from the cross – pardon, from the wall of Italian classrooms.  In more technical jargon, yesterday the Grand Chamber of the ECHR reversed the decision of the second section in the Lautsi case  and concluded that the presence of the crucifix is not incompatible with the right of parents to have their children educated compatibly with their own philosophical convictions (see Joseph Weiler’s comment on previous decision here).

The decision is a defeat for everyone, not just for the appellant. It is a defeat because the Court does not provide a much needed reflection on the question of the presence of religion in the public sphere. The quality of its reasoning is very poor and unsatisfactory, as it has been noticed times and times again, even when the Lautsi decision went the other way. The Grand Chamber does not articulate its reasons, its assessment is short and brutish and only consists of 20 short paragraphs where the courts simply hides itself behind the screen of the margin of appreciation, a rather laconic euphemism for deference to the national authorities. True, deference serves the purpose of legitimizing the international court vis-à-vis ferocious national criticism which was very vocal recently in the UK parliament. But what the ECtHR does not seem to understand is that its legitimacy as an international court of human rights also crucially depends on the quality of its reasoning, that should be regarded as exemplar in articulation and depth. Without those qualities, any decision is a defeat for Justice even if it may be a Pyrrhic victory for institutional respectability.

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Two New Decisions on Subject-Matter Immunity, Torture and Extrajudicial Killings

Published on March 7, 2011        Author: 

 Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)

 2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings.  Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy – previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials.  Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.

Kazemi v. Iran

 At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence.  He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada. Read the rest of this entry…

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More on Nada v. Switzerland

Published on December 23, 2010        Author: 

As our readers are aware, currently pending before the Grand Chamber of the European Court of Human Rights is the fascinating case of Nada v. Switzerland.  It concerns an Italian national resident in the Italian enclave of Campione in Switzerland, who was placed at Switzerland’s request on a terrorist suspect list by the UNSCR 1267 Committee, and subjected to targeted sanctions. Among these sanctions is a travel ban that Switzerland implemented through its domestic legal mechanisms. Accordingly, the applicant was denied permission to transit through Switzerland from Campione, thus rendering him unable to move even to other parts of Italy, let alone anywhere else, essentially confining him to the (rather posh and casino-filled) 1.6 square km of Campione. Mr Nada complains that the Swiss travel ban violates his rights under Arts. 5 (liberty of person) and 8 (private life) of the ECHR.

As Dapo explained in his earlier post, this is one in a series of recent cases dealing with the impact of the UNSC terrorist sanctions regime on human rights, such as OMPI, Kadi I and Kadi II before EU courts (see Antonios’s recent post) or Sayadi before the Human Rights Committee, implicating the supremacy clause in Art. 103 of the UN Charter, pursuant to which UN member states’ obligations under the Charter (including UNSC resolutions) prevail over conflicting obligations under other international agreements. Also currently pending before the ECtHR Grand Chamber is the Al-Jedda case, directly dealing with the interaction between the ECHR and Art. 103 of the Charter, with the UK House of Lords previously explicitly holding that the Security Council can override the Art. 5 ECHR ban on preventive detention.

Nada, like Al-Jedda, presents a situation of apparent norm conflict. On the one hand, the UNSC commands Switzerland not to allow Mr Nada to travel; on the other, the ECHR (arguably) commands Switzerland to let Mr Nada through. In my article ‘Norm Conflict in International Law: Whither Human Rights?,’ (2009) 20 Duke Journal of Comparative & International Law 69 I examine several different approaches for avoiding or resolving such norm conflicts. In effect, when addressing the apparent norm conflict in Nada the European Court will have before it a menu of several different options, and we will see which one it chooses. I would now like to outline some of these options – though of the course the Court might come up with something completely new.

The first impulse in practically all cases of apparent norm conflict is to avoid the conflict through (harmonious) interpretation, usually by reading down the content of one of the conflicting norms so that the danger of conflict is no longer real. That reading down can be consistent with the text and object and purpose of a particular norm, or can range down from the more creative interpretative approaches up to the quite forcible limitation of the particular norm. Generally speaking, the more forcible the interpretation, the more it looks like legislation and the less legitimate a route for a court to take. In our specific example of Mr Nada, the Court could read down either the ECHR or the relevant UNSC resolutions. If avoidance is impossible, the conflict may (but also might not) be resolved through the application of a hierarchical or hierarchy-like rule. Some conflicts may be both unavoidable and unresolvable.

(Warning! long post).

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ECHR Grand Chamber to Hear Case Challenging Legality of UN Security Council Sanctions

Published on October 24, 2010        Author: 

The Grand Chamber of the European Court of Human Rights (ECHR) has been asked to decide a case which challenges the legality of national measures implementing Security Council measures taken against persons associated with the Taleban and Al Qaeda. The chamber to which the case – Nada v. Switzerland (application no. 10593/08) – was  originally allocated has now relinquished jurisdiction in favour of the Grand Chamber. The case is brought by Mr Nada, an Italian national, who is on the list of persons subject to sanctions under UN Security Council Resolution 1267 (1999) and who lives in an Italian municipality that is an enclave within Switzerland. He is unable to leave the municipality as Switzerland will not allow him to enter or pass through the country. He argues that this is in breach of his rights under the European Convention on Human Rights. The facts of the case and the complaint are set out in the ECHR press release (see here):

The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.

On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.

Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.

On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.

On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.

However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.

Complaints and procedure

Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8. Read the rest of this entry…

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New Judges at the European Court of Human Rights

Published on October 21, 2010        Author: 

Earlier this month, the Parliamentary Assembly of the Council of Europe elected two new Judges to the European Court of Human Rights (ECHR). I am delighted to report that Linos-Alexander Sicilianos, a fellow member of the Scientific Advisory Board of the European Journal of International Law has been elected to take up the Greek seat on the Court (from May 2011). Professor Sicilianos is currently an Associate Professor of Law at the University of Athens and Vice Chairman of the Greek National Commission on Human Rights. He has been Vice Chair of the UN Committee of the Elimination of Racial Discrimination. Our congratulations to Alexander! Professor Sicilianos is the second member of the EJIL Scientific Advisory Board to be elevated to high judicial office this year. Earlier in the year Prof. Andreas Paulus was appointed to the German Constitutional Court.

The other judge elected to the ECHR is Ms Julia Laffranque who will take up the Estonian seat on the Court. She is currently a Judge on the Estonian Supreme Court and an Associate Professor of European Law at the University of Tartu. Our congratulations also go to her!

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Case Note on Sejdic and Finci

Published on September 6, 2010        Author: 

Our readers might be interested in a case note that I have just posted on SSRN on the Sejdic and Finci v. Bosnia and Herzegovina case before the European Court of Human Rights, which I blogged about before. It is forthcoming in the next issue of the American Journal of International Law, and here’s a very brief abstract:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society – discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court’s judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

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No Right to Same-Sex Marriage under the ECHR

Published on June 24, 2010        Author: 

Today a Chamber of the European Court of Human Rights delivered its judgment in Schalk and Kopf v. Austria, no. 30141/04. The applicants alleged a violation of Art. 12, and Art. 8 combined with Art. 14, on the basis that Austrian law did not allow them, as a same-sex couple, to contract marriage. Notably, the applicants did not just claim that Austria denied them some specific legal rights and privileges of a married couple, by refusing to recognize their relationship at all – something that the European Court has regarded as discriminatory since its 2003 judgment in Karner v. Austria, and unjustifiable merely for the sake of protecting an abstract notion of the traditional family. Rather, their claim focused solely on their inability to enter into marriage as such. In other words, they argued that the definition of marriage as a union of a man and a woman was as such discriminatory. (For more background, see this excellent post by Tobias Thienel on the oral hearings in the case).The Chamber rejected the applicants’ arguments.

The applicants first based their claim on Art. 12, arguing that the Court should interpret it in an evolving manner so as to now require the legal recognition of same-sex marriage (see here for more on evolutionary interpretation). The Court refused to do so, finding that (at least for the time being) the matter was left to the margin of appreciation of contracting states (paras. 54-64):

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