Caught in a Minefield

Yesterday, the Court issued its judgment in the Albekov and others v. Russia case which may not only have been a landmark, but also a landmine judgment. Three family members of the applicants, all civilians, had been killed by landmines in a forest near the village of Akhinchu-Barzoy in Chechnya. One of them was bringing in his cattle and when he did not return, two other villagers went to look for him and also got killed by landmines. Russia claimed that the landmines had been planted by armed gangs. The authorities had, however, due to earlier incidents, been aware of the location of the mines. It was on that issue that the European Court focused when assessing the case under Article 2 (right to life): the fact that the authorities knew that the landmines were there was sufficient to give rise to a positive obligation under Article 2 ECHR. Further developing and refining an earlier judgment (Pasa and Erkan Erol v. Turkey of 2006), the Court has now made clear that in this context three kinds of obligations rest upon a State Party. At the very least the authorities should (1) mark and seal off an area of which they know that it contains landmines and (2) comprehensively warn people living in the vicinity of it. This is the minimal obligation. Depending on the circumstances the Court would then look also at a third factor: endeavours to locate and deactivate the landmines. In this case, the Court unanimously found a violation of Article 2 for the state failure to protect the rigth to life. The case thus provides clear guidelines on how states should handle minefields.

Conference on ECHR

The University of Nottingham's Human Rights Law Centre is organising a conference for academics and legal practitioners on topical issues concerning the ECHR. This is the announcement:

The Conference will be held on Friday 14 November 2008, 9am-5pm, in the Great Hall, Trent Building, University of Nottingham.

This Conference will cover issues that will be of interest to academics, students and practitioners alike, highlighting and addressing the following challenges facing the European Convention System:

- Terrorism and the European Convention on Human Rights, by Egbert Myjer, Judge of the European Court of Human Rights;
- The Behrami case: Questions of Jurisdiction and Attribution for UN Action in Kosovo, by Marko Milanovic, University of Cambridge and formerly Associate, Belgrade Centre for Human Rights;
- Islam and the European Convention: The Refah and Sahin cases, by Professor Dominic McGoldrick, University of Liverpool;
- Russian Cases before the European Court of Human Rights, by Sergei Golubok, Lawyer, European Court of Human Rights Registry;
- The European Court of Human Rights’ Approach to Overruling its own Precedents, by Professor Alastair Mowbray, University of Nottingham.

For further information about this event and registration details, please visit the European Human Rights Law Unit. This is the link.

Hearing in Domestic Violence Case

Today the Court held a hearing in a case concerning domestic violence. The applicant, Nahide Opuz, has lodged a complaint against Turkey. The case centres on Opuz' extremely violent husband who gravely ill-treated her and her mother many times and eventually killed her mother. Although the authorities were made aware of the situation, they apparently failed to take any adequate action. The applicant does not only complain about violations of the right to life (Article 2 ECHR) and the prohibition of torture and inhuman and degrading treatment (Article 3 ECHR), but also about discrimination in the sense of lack of protection under Turkish law for women who are victims of domestic violence.

The fact that a public hearing is organised - a relatively rare occurence in Strasbourg - and that the NGO Interights has been given leave to intervene as a third party, both point to the fact that this case is generating a lot of interest both inside and outside the Court. It reflects an increasing awareness that issues of domestic violence are matters of public interest.

This is the link to the hearing. A link to the internet page of Interights on the case, including their legal brief, can be found here. Finally, this is the link to the Court's press release.

The Pilot has Landed

This week the Court concluded its first full cycle in a so-called pilot case procedure. It struck out 176 pending applications in the "Bug River" cases. These cases all concerned claims of applicants who disagreed with a Polish scheme set up to compensate people who had lost their belongings at the end of the Second World War, when the boundaries between the Soviet Union and Poland were changed, causing more than 80,000 Poles to be forced to leave their homes.

The pilot case procedure is a procedure used by the Court to deal with systemic human rights problems which surface in a large number of comparable applications. In such cases the Court selects a "pilot" case and decides in that specific instance, indicating not only what remedies are called for in the individual case, but also how the problem should be dealt with more generally by the country concerned. Pending the outcome of the state's reaction, all other comparable cases are put on a hold.

In the context of the "Bug River" cases, the pilot case was Broniowski. That case was declared admissible in 2002 and the Grand Chamber held in its judgment in 2004 that Poland had violated Article 1 of the Convention's First Protocol (protection of property) and had to amend the compensation scheme to make sure that proper compensation for claimants was put into place. Appropriate action was indeed taken and in 2005 the Court accepted the friendly settlement reached between Broniowski and the Polish state. It expressed its positive attitude towards the general measures that Poland was taking at the time. The real test came, however, when the Court turned to all the comparable pending cases: in 2007 struck out two cases, Wolkenberg and Others and Witkowska-Tobola, out of its list. It is in those decisions that the most elaborate assessment of the Polish compensation scheme can be found. After those two decisions, the door was wide open for striking out large numbers of cases. And now the last batch has been struck out. Of course, it is still up to the Council of Europe's Committee of Ministers to monitor the situation in Poland on this account. But for the time being, the pilot case procedure seems a relatively efficient way to deal with at last part of the Court's backlog of cases.

Is this the end of the story? The Court seems to be cautious; in its press release the following can be read:

Similar complaints continue, however, to be lodged every month and as a result the Court is called upon to give individual decisions in cases where the Convention issue has been resolved at domestic level. The Court does not therefore rule out in the future declining to examine such cases.

Certainly to be continued....

Article on Rights of 'Travelling Peoples'

The most recent issue of the Human Rights Law Review (volume 8, no. 3, 2008) contains an article on one of my areas of particular interest: Ralph Sandland, Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling Peoples by the European Court of Human Rights. It traces the changing stance of the European Court of Human Rights on the duties State Parties to the Convention have vis-à-vis travelling (minority) peoples. The cases on Roma rights are a prime example of the issue. This is the abstract:

This article reviews the development of the jurisprudence of the European Court of Human Rights (the Court) relating to the rights of Travelling Peoples. In its early case law on this topic, the Court's approach, in accordance with the principle of the rule of law, was to ensure equality of treatment. This approach appears laudable, but in practice it functioned as a failure to protect difference, or identity, especially minority identities; or, when difference was recognised, it was recognised as a problem. However, the Court has more recently undertaken a reappraisal of its approach. In essence, and although there may be scope for further development, the Court has moved to abandon a jurisprudence of sameness or equality in favour of elaborating a jurisprudence of difference. The Court now recognises that law applies differentially by reference to culture and ethnicity, and also that there are various positive obligations under the European Convention of Human Rights (the Convention) to protect difference, or minority identities, from both direct and indirect discrimination.

The article is available on the site of the Human Rights Law Review for subscribers.

Judgment on Apology of Terrorism

Cartoons are, as we have seen in recent years, not always completely innocuous. Today the European Court of Human Rights delivered its judgment in a case focusing on the controversy about a cartoon depicting the terrorist attacks on the World Trade Center in New York with the text "We have all dreamt about it ... Hamas did it". The cartoon was drawn on 11 September 2001 itself, just hours after the attacks, by French cartoonist Denis Leroy, and published two days later in a Basque magazine with its basis in the southwest of France. The French authorities prosecuted both the cartoonist and the magazine and national courts fined Leroy with a 1500 euro fine for complicity in the defense or apology of terrorism.

Leroy tried his luck in Strasbourg, complaining that the imposition of the fine was in violation of Article 10 ECHR (freedom of expression). The Court, unanimously, disagreed. It held that the interference in this case served the legitimate aims of public safety and the prevention of disorder or crime in the sensitive context of the fight agaisnt terrorism. In a telling obiter dictum, the Court comments that the attacks of 11 September 2001 yielded a "global chaos". Although the applicant claimed that his cartoon merely expressed his political stance of anti-Americanism in a satirical manner and served to illustrate the decline of "American imperialist power", the Court noted that the cartoon also glorified the destruction of America by violent means. According to the Court, the caption accompanying the cartoon reflected Leroy's solidarity with the alleged attackers of the WTC and a favorable opinion on the large-scale violence used against civilians. The Court also noted the context: the drawing and publication in the immediate aftermath of the attacks and possible impact of such a message in a politically sensitive region, the Basque country. The reactions of readers of the magazine, which were subsequently published, pointed in that reaction. The Court, in conclusion, did not judge the fine to be excessive.

Interestingly, France tried to have the case declared inadmissible for abuse of rights (Article 17) by the applicant. This Article has thusfar mainly been used in the context of Holocaust denial. On this aspect, the Court disagreed with the State Party. It considered that the core message of the cartoon, the destruction of American imperialism, does not concern the destruction of fundamental rights nor can it be equalled to expressions of racism attacking the underlying values of the Convention. Moreover, the Court held that even if the expression had been labelled as an apology of terrorism under national law, the cartoon did not amount to an absolute justification of terrorism which would deprive it of the protection of Article 10.

Considering the fact that laws on the prohibition of the apology of violence (and especially terrorism) are currently being debated in many European countries, this judgment may be of considerable impact.

The judgment in this case is available only in French. A short report on this issue by the famous French newspaper Le Monde can be found here.

Interpretation of International Humanitarian Law

Still catching up on recent Court judgments, allow me to highlight a recent Grand Chamber decision of the Court. In Korbely v. Hungary the Court found a violation of Article 7 ECHR (no punishment without law) by eleven votes to six. The applicant had participated in quelling a riot in Hungary during the failed 1956 revolution against the communist rulers. He was the captain of a squad that killed a number of people, some of which were armed. To summarise the decision in one sentence: the Court concluded that Korbely's acts did not satisfy all the elements of a crime against hmunanity as valid at that time. The dissenting opinions focus, amongst others, on interpretations of international humanitarian law, the validity of which I will leave to experts in that field. Once again, the judgments shows the difficulties confronting a human rights court when venturing into neighbouring fields of international law.

Election of Judges

Yesterday, the Parliamentary Assembly of the Council of Europe, re-elected the Luxemburg judge at the Court, Dean Spielmann, for a new term. He was elected out of a list of three candidates by 86 out of 126 votes cast. His new term will end 31 October 2013. Judge Spielmann joined the Court in June 2004.

During the same session the Parliamentary Assembly adopted an important change in its policy on electing judges to the Court. Since 2004 the Assembly had refused to consider lists of candidates on which only one sex was represented. The underlying aim was to achieve a balance of gender in the Court. Earlier this year, the Court, in an Advisory Opinion held that this policy was incompatible with the Convention. As a result, the Assembly has now decided to consider single-sex lists of (three) candidates "in exceptional cases, where all the necessary and appropriate steps have been taken to include the under-represented sex." In practice this entails that very small state parties to the Convention (e.g. Liechtenstein or Malta) could submit such single-sex lists if they can show that they have done a thorough job in looking for suitable candidates fo both sexes.

The Perils of an Interview

Being interviewed in a newspaper can have serious consequences. Such was the experience of Nadji Chalabi in whose case the Court recently issued its judgment. Chalabi was a former member of the Board of Directors of the Grand Mosque of the French city of Lyon. In an interview with a local magazine he criticised the director of the Mosque, calling his management dodgy and observed that he lacked knowledge about Islam. The director won a defamation case against Chalabi and Chalabi was ordered to pay damages to him.

The European Court unanimously found a violation of Article 10 in this case. It held that the question of the management of a religious institution was a question of public interest both to the religious community involved and the public at large. This led to a higher level of protection of the expression concerned. Moreover, it labelled the director as a public figure due to his representative and institutional functions. The remarks of Chalabi should be seen as a value judgment which had a sufficient factual basis: an investigation by the authorities was carried out at the relevant time concerning possible misappropriation and fraud. As to the wording of the comments, the Court did not find them clearly insulting. Thus the conviction of Mr Chalabi had been contrary to Article 10.

In my view, the case is notable in three respects. First, it shows that the wheelings and dealings of religious communities concerning their management and funding (as opposed to their religious functions) are considered by the Court of public interest. Thus, it cannot be claimed that such matters are only of internal concern to the community concerned. This means that public debate on such issues receives a higher level of protection under the Convention than would otherwise be the case. Secondly, a public investigation or ongoing judicial proceedings against a person may serve as a sufficient factual basis for non-excessive value jugdments about that person, nothwithstanding the presumption of innocence. Thirdly, leaders of religious communities who publicly represent their constituencies are considered to be public figures under the Convention who should be able to cope with more criticism than the average person. The Court has already often stressed that point in respect of e.g. politicians, but now explicitly broadens the notion to religious leaders who operate in public.

Although the judgment is available only in French, a press release on the case can be found here. For the involved magazine's (Lyon Mag) own reporting on the case, click here.

10,000th Court Judgment

This month the European Court of Human Rights reached a remarkable milestone. On 18 September it delivered its 10,000th judgment, both a testimony to the Court's very high efficiency as well as a sad reminder of the enormous case load - and the underlying human rights problems. Far gone are the days when ECHR presidents claimed that the Court had a busy year when it issued more than five judgments. Ever since its first judgment (Lawless v. Ireland) in 1961 the Court's output has been increasing, especially since it became a full time Court in 1998. Out of the 10,000 judgments, 4,000 alone were delivered in the last three years! No wonder that president Jean-Paul Costya emphasized in a statement at the occasion of the milestone that the real solution is to be found in an increased national protection of human rights.

Pending reforms (under the new Protocol 14 and in other ways) the future looks rather grim in this respect. At this moment the amount of currently pending applications is ten times higher than the total of all ECHR judgments and is nearing the sad 100,000 benchmark. Perhaps symbolically, the 10,000th case (Takhayeva and others v. Russia) was another Chechnyan disappearance case, no doubt not the last one...

With this post this blog is resuming after its summer break. More posts on recent ECHR judgments will follow later this week.