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Home International Tribunals Archive for category "European Court of Human Rights" (Page 17)

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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‘Is torture ever justified?’: The European Court of Human Rights decision in Gäfgen v Germany

Published on June 15, 2010        Author: 

Natasha Simonsen is a Rhodes Scholar at the University of Oxford. Previously, she worked as a consultant for UNICEF and has interned with the United Nations High Commissioner for Refugees in Pakistan.

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down its decision in Gäfgen v Germany. The case raised the classic ‘ticking time bomb’ scenario that features in moral philosophy seminars the world over, forcing the Court to confront the question: is torture is ever justified? Although the Court’s rhetoric emphasised the absolute nature of the prohibition on torture and inhuman or degrading treatment, that was not borne out in the result, with the majority finding that the admission of evidence obtained as a direct result of inhuman and degrading treatment did not compromise the fairness of the applicant’s trial.

The tragic facts of the case are as follows. The applicant lured a 12 year old boy to his Frankfurt apartment and suffocated him, disposing of the body beside a lake and issuing a ransom demand to the boy’s parents. Gäfgen collected the ransom, and was arrested attempting to flee from Frankfurt airport later that afternoon. He told police that the boy was alive and being held by two other (fictional) kidnappers in a hut by a lake, but repeatedly refused to disclose the location.

 Believing the boy’s life to be in grave danger, and in the face of the applicant’s continued resistance to police questioning, the next morning the Deputy Chief of the Frankfurt police authorised Officer E to threaten Gäfgen with considerable pain, and to inflict that pain if necessary. The infliction of pain on the applicant was to occur under medical supervision by a specially trained police officer who was en route to Frankfurt in a helicopter at the time. The authorisation was fully documented in the police file, and was taken in defiance of explicit orders to the contrary by superiors. Gäfgen also alleged that he was pushed in the chest several times, shaken so that his head hit the wall, and that he was threatened with sexual abuse. The Grand Chamber did not find these additional facts to be established beyond a reasonable doubt, although they did accept that threats to inflict considerable pain on the applicant had been made and that officer E had the intention to carry them out. A mere ten minutes after the threat, Gäfgen made a full confession and admitted the boy was dead.  He agreed to take police to the lake where he had hidden the  body (on the condition that officer E was not present). He reiterated his confession on several subsequent occasions. Read the rest of this entry…

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Grand Chamber Hearings and Preview of Al-Skeini and Al-Jedda

Published on June 9, 2010        Author: 

Today the Grand Chamber of the European Court of Human Rights held joint hearings in  Al-Skeini and others v. UK (no. 55721/07) and Al-Jedda v. UK (no. 27021/08) – webcast available here, statements of facts available here. It would be no exaggeration to say that these are some of the most important cases to come before the Court in recent years, with possibly wide-ranging implications, on matters ranging from the extraterritorial application of the ECHR and the use of force generally, to occupation and targeted killings, up to the responsibility of international organizations, the relationship between the ECHR regime and the UN Security Council under Article 103 of the Charter. The Court will probably deliver its judgments by the end of the year.

Let me now try to provide a preview of some of the most important issues – particularly threshold issues – that that the two cases raise, and of the possible ways in which the Court might rule.

(Again, apologies for a long post!)

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Was Nuremberg a Violation of the Principle of Legality?

Published on May 18, 2010        Author: 

This is, remarkably, the question raised by yesterday’s judgment of the Grand Chamber of the European Court of Human Rights in Kononov v. Latvia, App. No. 36376/04. In short, the applicant was a former Soviet partisan convicted by a Latvian court for war crimes, because during World War II he and the unit under his command killed a group of Latvian villagers who collaborated with the Germans. The case raised many issues of the law of armed conflict/IHL, such as combatant and civilian status – but importantly, how the law applied inter-temporally, i.e. what the law was in 1944, when the alleged crime was committed.

The Chamber 4:3 judgment in favour of Kononov was much criticized for various methodological reasons, and not just for its ultimate result. The Grand Chamber reversed the Chamber’s judgment, finding in favour of Latvia by 14:3, and is technically of significantly better quality. The ultimate result of the case and some nitpicking I would have with certain elements of the Grand Chamber’s reasoning aside, what interests me the most is its basic approach, and the broader implications that it might have.

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Al-Saadoon and Mufdhi Merits Judgment

Published on March 2, 2010        Author: 

The Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08) judgment by a Chamber of the European Court of Human Rights is now out (HUDOC). For our previous coverage, with links and background, see here and here. The shortest possible summary – the applicants won, and the Chamber judgment is a valuable contribution to human rights jurisprudence. Now for more detail.

Readers will recall that the basic question raised by the case is whether the transfer by the UK of the applicants who were in the custody of UK troops in Iraq to Iraqi authorities for trial violated the applicants ECHR rights, specifically the non-refoulement principle established by the Court in Soering v. UK, inter alia because there was serious risk of them being subjected to the death penalty. In Soering itself the issue was the surrender of the applicant to the US, where there was serious risk of him being subjected to the death penalty. However, the death penalty was at the time still not outlawed with respect to the UK by Protocols 6 and 13, and so the actual issue was inhuman treatment that the applicant would suffer as a consequence of the death row phenomenon. Likewise, without the two protocols, Article 2(1) ECHR specifically contemplates the death penalty, and it as such could not be held to be contrary to other provisions of the Convention, namely Article 3 prohibiting all forms of ill-treatment.

Now in Al-Saadoon we have the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

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ECtHR Al-Saadoon Judgment Forthcoming on 2 March

Published on February 27, 2010        Author: 

A Chamber of the European Court will deliver its merits judgment in Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08), the case dealing with detention and non-refoulement in Iraq, on Tuesday 2 March (press release here). For our previous coverage, see here and here. For more in-depth analysis of the various issues in Al-Saadoon, such as norm conflict and the UK government’s decision to disregard interim measures ordered by Strasbourg, see here. See also this article by Nehal in the JICJ, and this note in the ICLQ by Sarah Williams and Matthew Cross.

This as hot a case as it gets, and we’ll see what the Chamber does with it. It certainly moved very quickly, since it pronounced on admissibility only in July last year. Whatever the outcome, it is likely that the case will also be referred to the Grand Chamber. Analysis and commentary will follow!

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