Crossing the Line

This picture shows the Greek-Cypriot Solomon Solomou who tried, in the summer of 1996, to climb a flagpole (with a Turkish flag on it) just across the ceasefire line in Turkish-occupied Northern Cyprus. He was killed by five bullets as he climbed up. This was the second episode in a series of events which left two people dead. A few days earlier, Anastasios Isaak, also Greek-Cypriot, was kicked and beaten to death during a demonstration against the occupation, at the ceasefire line. Solomou's action was apparently triggered by Isaak's death. Yesterday, the European Court of Human Rights issued judgments in both cases and in each found violations of Article 2 ECHR.

The applicants in the two cases were the families of the deceased. Although Turkey disputed the facts and even the implication of Turkish military personnel in the killings, testimony of UN Peacekeepers and video and photo materials convinced the Court that Turkish soldiers participated in the mob that killed Isaak and that Solomou had been killed by bullets coming the guns of Turkish soldiers. The Court considered that in none of the two cases the violence had been absolutely necessary and thus found a substantive violation of Article 2. In addition, for lack of any investigation into the circumstances of their deaths, a procedural violation of the same article was found as well. High amounts of money were awarded for non-pecuniary damage.

Legally, the case is mainly notable because of the Court's detailed analysis of whether the killings could have been justified by the exceptions allowed under Article 2. The test is very strict, as should be expected for one of the most important rights in the Convention. The killings caused a lot of uproar and media attention at the time and even led to a condemnation by the European Parliament. Yesterday's Strasbourg judgments, almost 12 years after the facts, finally bring these cases to a close.

Ever since the start of the Turkish occupation of the Mediterranean island, the Strasbourg institutions have been used as fora of discussion and adjudication on some of the most difficult legal questions arising from that situation. Most famous perhaps is the Court's judgment in the (rare) inter-state complaint of Cyprus v. Turkey. Many other judgments have focussed on property issues. And a very recent case, also decided yesterday, focused on the freedom of expression (Foka v. Turkey). Foka, Isaak, and Solomou will certainly not be last judgments of the Court on the situation. As long as a political situation is not found, individual applicants will keep coming Strasbourg's way.

Click here for the judgment in the case of Isaak v. Turkey and here for the judgment in Solomou v. Turkey. The press release can be found here.

As an afterthought: with the upcoming ban on smoking in restaurants and bars in the Netherlands and some other parts of Europe as of 1 July, part of the Court's judgment in the Solomou case may serve as a consolation to some (para. 37): "The deceased was unarmed and had not attacked anyone; he was climbing a pole and smoking a cigarette, two actions which were not compatible with violent action against other individuals." John Lennon was not the last to connect smoking and non-violence in one person!

Grand Chamber Judgment Maslov v. Austria

Yesterday, the Grand Chamber issued its judgment in the Maslov case on exclusion orders. I am very grateful that Maarten den Heijer, my former colleague from Leiden and an expert on migration law and human rights, was so kind to write a guest blog message on the case:

Juvenile offender must be reintegrated, not expelled

With Euro 2008 approaching the stage of the semi-finals, the European Court has settled the score between Maslov and Austria in favor of Maslov – with a 16 to 1 vote. The judgment of the Grand Chamber outlines the increasing importance the Court attaches to children’s rights, and is especially important for immigrant children.

The case concerned a ten-year exclusion order imposed by Austria on the 16 year-old Juri Maslov, of Bulgarian origin, who had been living legally in Austria with his family since the age of six. Between the age of 14 and 16 Maslov committed a range of offences – from burglary to assault – and was twice convicted on no less than 40 counts in total. After having served his prison term, the Austrian authorities decided Maslov’s presence in Austria to be undesirable and ordered him to leave the country.

According to settled case law, Article 8 ECHR imposes on States the obligation to weigh the interests of public order against the interests of the individual when expelling a person, which includes paying account to the social, cultural and family ties of the individual. It was with a meager 4 to 3 majority that the Chamber of the Court in March 2007 (see judgment here) found the scales to tilt in favor of Maslov, with the dissenters insisting that ‘the rights of non-nationals under Article 8 should not be overprotected’.

The balance of powers in the Grand Chamber was clearly different – with judge Steiner being the only Chamber dissenter who was also part of the Grand Chamber. The Grand Chamber makes clear that the margin of appreciation which is normally accorded to States in balancing the interests of public order with those of the expellee, is considerably narrower when dealing with children. The Court refers to Article 3 and 40 of the Convention on the Rights of the Child and interprets the best interests of the child to encompass an obligation to facilitate the child’s reintegration after having committed an offense. Reintegration, in the Court’s logic, will normally not be served by ordering expulsion, since expulsion will severe the social and family ties of the child. This reasoning goes some way in enhancing the residence status of immigrant children and makes clear that when dealing with juvenile offenders who are aliens, States must not simply take the easy option by expelling the juvenile.

It must be noted that the judgment falls short from an absolute prohibition on the expulsion of alien juvenile delinquents. Considerable weight is attached to the finding that Maslov had committed relatively minor, non-violent offences. In earlier judgments, the Court considered the expulsion of juveniles who had been convicted for aggravated rape (Bouchelkia v France) and manslaughter (Kilic v Denmark) not to raise an issue under Article 8.

The legal relationship between expulsion of aliens and their right to private and family life under Article 8 is very much judges-made law. For an insightful analysis of the Court’s approach, read Daniel Thym, ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’, published in the International & Comparative Law Quarterly, volume 57, January 2008.

It is also noteworthy that the current president of the Court, Jean-Paul Costa, has in the past expressed his regret that exclusion orders exist, for they constitute double punishment in the humane sense of the term. See his concurring opinion in Maaouia v France.

Thank you, Maarten!

New Article on Interim Measures

The newest issue of the European Constitutional Law Review (vol. 4, issue 1, 2008, pp. 41-63) contains an article by colleagues from Utrecht and Ghent universities on interim measures:
Apart from being a case note on the judgment in Olaechea Cahuas v. Spain, it contains a much broader analysis on the nature and legal effect of interim measures: Yves Haeck, Clara Burbano Herrera & Leo Zwaak, 'Non-Compliance with a Provisional Measure Automatically Leads to a Violation of the Right of Individual Application ... Or Doesn't It?' This is the abstract:

Provisional or interim measures before the European Court of Human Rights – Historic judgment in the case of Olaechea Cahuas v. Spain – The non-compliance by a State with an interim measure leads to a violation of Article 34 ECHR, irrespective of the subsequent finding of a violation of other material provisions of the ECHR by the Court – Remaining (loopholes for) recalcitrant states – Lack of reasoning of interim measures – Lack of clarity as to applicants' unwillingness to abide by an interim measure and currently untenable, extremely narrow scope ratione materiae of situations in which interim measures are indicated by the Court – Codification of the institute of provisional measures by including it as a separate provision into the European Convention through an additional protocol.

For subscribers, the article is accessible electronically here.

On the Record

Since George Orwell wrote his famous novel on the dangers of an all-controlling Big Brother in the 1940s the possibilities to record human behavior have greatly increased. The challenges to the right to privacy are obvious, but audio or videotaping behavior can also form important proof in criminal and other proceedings. Such tapes can be used by or against the state. Two recent cases at the European Court illustrate this.

The first is the case of Victor Saviţchi v. Moldova. On 17 June the Court delivered its judgment in the case, finding a violation of Article 3 ECHR (prohibition of torture and inhuman or degrading treatment and punishment), concerning both its substantive and its procedural aspects. In many ways the case is one of the hundreds of instances of police violence which Strasbourg has to assess yearly: the applicant was beaten during his arrest by the police. But one element clearly sets the case apart: the whole incident was filmed, by the police for that matter! However, the national authorities and courts mainly used police testimony in deciding the case, mostly ignoring the taped evidence. All the more flagrant since the videotaped evidence showed that the applicant did not fight the arrest but tried to avoid the blows and kicks of the police officers. In that sense, in the Court's view, the authorities did not reasonably use all the available evidence. A clear Strasbourg pointer on how to conduct an effective investigation into allegations of ill-treatment.

A contrasting situation, where taped materials were used against an individual is the case of Bykov v. Russia, currently pending in Strasbourg. The facts are reminiscent of a James Bond movie. Bykov was suspected by the authorities of planning the murder of a former business associate of his. The police staged the discovery of the murdered body of the associate, with the help of the man ('V.') who had allegedly been hired by Bykov to commit the murder. The fake murder was widely publicised in the media and a few days after the 'discovery', V. went to Bykov to report that he had accomplished his mission, carrying on him a hidden radio-transmitting device, which allowed the police to record the whole conversation. On the basis of those tapes, Bykov was arrested and eventually sentenced to several years in prison for 'incitement to commit a crime involving a murder'. In Strasbourg, Bykov complained of un unfair trial (evidence obtained by entrapment being decisive) and about violations of the right to respect for his home, private life and correspondence.

The Grand Chamber hearing in this case was held on Wednesday 18 June and can be found here and the admissibility decision here. For an earlier Strasbourg judgment on entrapment, see Teixeira de Castro v. Portugal. To be continued!

Judgment on Suicide in the Army

On Tuesday 17 June the Court found a violation of the right to life in a case involving suicide: Abdullah Yilmaz v. Turkey. The case concerned a 20-year-old who committed suicide during the performance of his compulsory military service. The immediate trigger for the sad event were several rows over tea(!) between Yilmaz and his superior. His commanding officer scolded and kicked him and humiliated him in front of others on the very day that Yilmaz had told him that he had personal difficulties. When in the afternoon Yilmaz threatened to kill himself, his officer pointed a gun at him out of fear of being attacked. Immediately, Yilmaz did indeed kill himself with his gun.

The Court's judgment focussed on the question whether the authorities were or should have been aware of a real risk that Yilmaz would kill himself - and if so, whether they did everything to prevent it. The state responsiblity is much more directly involved here because he was performing his military service. In that sense, he was under the state's control (comparable to dentention situations in which a heightened state responsiblity also exists). Although no such an indication had existed before the crucial day, his fragile state had become apparent on that day and his commanding officer had exacerbated the situation instead of appeasing it. Even if the extent of the effects of the superior's behavior on Yilmaz could not be established, the fact that he pointed a gun at him made the effects irreversible. Thus the Court concluded that the commanding officer did not assume the responsiblities required of a professional to protect the mental and physical integrity of those placed under his command.

The judgment further clarifies the systemic safeguards a state needs to incorporate into its regulatory framework concerning army personnel. It is indeed the very fact that such a superior was allowed to function in this way which proved the deficiencies of the system.

The judgment is available only in French, but a press release in English can be found here.

Television judgment

Yesterday, the Court unanimously found a violation of Article 10 ECHR (freedom of expression) in an Armenian media case: Meltex Ltd & Mesrop Movsesyan v. Armenia. The case concerned the sevenfold refusal of the Armenian authorities to grant a broadcasting license to the Meltex broadcasting company. No reasons were given for the refusals, apart from the general statement that the National Radio and Television Committee only made decisions as to which was the best company. The owner of the company had earlier run into difficulties with the state when he refused, with his previous television company, to broadcast only Government propaganda during the 1995 presidential campaign.

The case focuses on a relatively unknown part of Article 10: "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises." For references to earlier case law, see para. 74 of the judgment. Whereas most freedom of expression cases would focus on the issue whether the interference by the state was "necessary in a democratic society", the Court did not even get to assess that point. It held that the interference had not been prescribed by law. It is remarkable that the authorities did follow the applicable Armenian law, but that that law was not of sufficient quality in the Court's view. Referring to its own earlier case law, and documents of other Coucil of Europe bodies, the Court held that (para. 83) "a licensing procedure whereby the licensing authority gives no reasons for its decisions does not provide adequate protection against arbitrary interferences by a public authority with the fundamental right to freedom of expression." Although the European Court cannot strike down laws directly, this is a clear example where the state concerned will have to amend the law in order to prevent further violations of the ECHR. Not the television station, but the law should therefore be taken 'off the air' in a way.

It is also to be noted that the complaints of the second applicant, the chairman of Meltex, were not deemed admissible, since the Court held that the only company and not its chairman was a victim. As to the damages, Meltex was awarded 20,000 euros for non-pecuniary damages. To award non-pecuniary damages to a legal entitry might seem somewhat awkward to outsiders, but it is fully in line with the Court's case law (see especially Comingersoll SA v. Portugal). In this particular case, no causal link between pecuniary damage and the violation could be established and the Court considered that merely finding a violation was not sufficient.

The press release of the case can be found here.

Dealing with Conflicts of Rights

Dealing with conflicting fundamental rights is one of the great challenges of any constitutional court and the European Court is no exception. A recent paper offers an intriguing combination of the academic and the insider's perspective. In 'Rights in Conflict: the European Court of Human Rights as a Pragmatic Institution'* law professor Olivier de Schutter (Catholic University of Louvain, Belgium) and Belgian ECHR judge Françoise Tulkens explain and compare the different approaches to the issue. This is (part of) the abstract:

Fundamental rights are usually thought of as rules, which prescribe certain arrangements and exclude others; and it is the role of courts, in the traditional view, to expound their significance by applying predefined rules to the facts submitted to them. This view, characteristic of the formalistic conception of law, breaks down most clearly in contexts where one set of facts calls for the application of different rules which are not hierarchically ordered. Such situations oblige us to examine the virtues of a pragmatic conception of legal adjudication, and to explore the procedural implications of such a conception, in which the principles guiding the judicial reasoning are permanently reinvented in the course of their implementation. This paper offers such an examination, by studying the different approaches which have been adopted towards situations where fundamental rights conflict with one another.

* Follow the link look under the heading 'fundamental rights' to download the paper. Many thanks to my friend Jacco Bomhoff (of Comparativelawblog) for pointing out this paper to me.

A People's History of the ECHR

For many Strasbourg watchers a certain curiosity remains after reading new judgments: what happens subsequently? Of course, the formal answer can be found in the work of the Committee of Ministers which monitors state compliance with the Court's case law. But beyond that, it is only by chance sometimes that newspapers report on how the applicants themselves continue with their lives. Also, one often wonders why a certain case was brought to Strasbourg. These are questions on the often partly hidden human dimension of jurisprudence. I was therefore particularly delighted when I recently was made aware of an intriguing book*: Michael Goldhaber, A People's History of the European Court of Human Rights (Rutgers University Press 2007). The book traces the backgrounds of the protagonists in a number of leading ECHR cases. Through meticulous research, dozens of interviews, and even photographs we finally discover what Jeff Dudgeon looks like or why Paula Marckx was so keen to press her case in Strasbourg (and why Anthony Tyrer was not). Paula Marckx fought for equal rights for her daughter Alexandra, who was born out of wedlock. And thus, the book recounts that Paula was smart enough to write a letter to Strasbourg in the name of her daughter:

"Messieurs, I am a ten-month-old baby (...) I hope with all my heart that a baby of my age can count on an institution like yours to protect her rights."

Mother and daughter won their case and now run a website that offers advice for travelling with pets... But the book also traces the perseverance of small groups of British (and American!) lawyers whose legal creativity was instrumental in lodging several of the first complaints which resulted in 'leading cases'. Finally, it is a written monument to the courage of people like Serif Aksoy, who pressed the case of his son - who was killed and tortured - before the European Court and paid a very heavy price for that; he was tortured 24 times. But the Strasbourg judgment in Aksoy was a landmark case, for the first time finding a violation of the prohibition of torture in an individual case. As the famous anthropologist Margareth Mead has said: "Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has." The stories in Goldhaber's book certainly illustrate that dictum well!

Although sometimes using sweeping statements, which to European readers sound almost too stereotypically American, the book does an excellent job in pointing out the unique success of Strasbourg in securing human rights - in a very accessible style for that matter. This is a book that doesn't only satisfy one's curiosity, it also whets one's appetite for more. Recommended reading!

And, as an afterthought in the wake of the Irish 'No!', it might be a consolation that Goldhaber asserts that the European Convention on Human Rights is, by far, the "most satisfying basis for a [European] communal identity."

* The Dutch judge at the European Court, Egbert Myjer, wrote about Goldhaber's book in a recent issue of the Dutch human rights review NJCM-Bulletin, vol. 33-2, pp. 305-307.

More Judgments on Detention Conditions

Yesterday, the Court found a violation of Article 3 in the case of Kotsaftis v. Greece. Kotsaftis suffered of hepatitis B and complained that he had incurred the disease during detention. His medical condition was so bad that he needed to be treated in hospital several times. During a leave from prison, he absconded and was only arrested two years later again. Although the Court found no proof that the applicant had been infected by hepatitis during his stays in prison, it did conclude that the authorities had not done what could reasonably be expected of them in view of the severity of Kotsaftis' illness. No sufficient or appropriate care had been offered to safeguard his physical integrity. In a remarkable obiter, the Court also lamented the fact that he had been detained in a cell with ten others, although his disease was highly infectious. This served as an additional argument to conclude that Kotsaftis had been submitted to inhuman treatment. But going beyond that, one can read into this a confirmation that there is duty of care to protect prisoners against infectious diseases of their fellow prisoners.

In a relatively rare use of interim measures (Rule 39 of the Rules of Court), which are mostly used to stay extraditions or expulsions, the Court had ordered Greece in March 2007 to transfer the applicant to a medical centre to be tested and treated until doctors would find that he could return to prison without his life being endangered. It did so within a week and Mr Kotsaftis' health improved as a result. The whole saga indicates the seriousness of his condition, but also a novel way to use Strasbourg as a life-saving mechanism.

The press release of the judgment can be found here. The judgment itself is only available in French. Une semaine francophone!

On the same day, the Court found another violation of Article 3 in a detention case. In Shchebet v. Russia, a Belorussian applicant was held for 34 days in a very small cell at Domodedovo airport in Moscow, which was normally used for short-term detention of only a few hours. For food she was fully dependent on her family and the goodwill of the attending police officers. Interestingly, the Court held that the detention was not only contrary to Russian law, but in addition was based on a misreading of the Russian-Belarussian extradition treaty! This is an ironic judgment in the sense that the applicant would not be able to complain about violations by her own country, since Belarus is the only European country which is not a party to the European Convention. Involuntary cross-border human rights tourism with a sad twist...

Human Rights During Armed Conflict

The manner of applying human rights to situations of armed conflict has been a topic of heated debate in academia and in courts in the last decade. A recent article in Global Jurist addresses the issue. Federico Sperotto's Law in Times of War: The Case of Chechnya looks into the ways in which the European Court of Human Rights has applied the Convention to the war in Chechnya and places it in a broader international law context. Good background reading for last week's judgments on the region. This is the abstract:

In October 1999 "the second Chechen war" broke out. In December the Russian federal army started an operation to take control of Grozny. During the confrontation between the Federal forces and the Chechen separatists, serious human rights violations occurred. Several cases concerning violations of fundamental rights, in and around the city, have been brought before the European Court of Human Rights against Russia. The lawsuits concerned physical integrity issues in particular. This study provides some insights on the jurisprudence of the European Court on Human Rights in order to ascertain the adequacy of the mechanism of protection provided by the European Convention of 1950 in situations of armed conflict.

Incidentally, today the Court found violations of Articles 2, 3, 5, and 13 ECHR in two new Chechen cases: Elmurzayev and others v. Russia and Atabayeva and others v. Russia. An almost endless series of disappearance cases seems to be yielding Strasbourg judgments in the years to come.