Another Victory for the Freedom of Assembly

Last Thursday the Court found a violation of the right to the freedom of assembly (Article 11 ECHR) in the case of Sergey Kuznetsov v. Russia. The case concerned a small-scale peaceful demonstration in 2003 in front of the Sverdlovsk Regional Court building. The demonstrators distributed leaflets concerning the alleged corruption of the Court's president. The demonstration itself occurred without any problems, but the applicant was subsequently fined for violating the law on demonstrations (he had filed an application 8 days instead of the required 10 days in advance), for obstructing the passageway to the court and for demonstrating with another aim than the one he had asked permission for (slander of the court's president instead of uttering concern about general problems of judicial protection).

What is interesting is that the European Court found a violation, even though the applicant himself had obviously violated the time limits under domestic law. This is another example of the European Court pointing out to domestic authorities that they should not be overly formalistic. One should bear in mind that the specific context of the case led the Court to this conclusion: it was decisive that the applicant's violation of the notification deadline did not prevent the authorities from properly preparing for the demonastration (such as organsing police presence). The demonstration itself was peaceful, did not block the entry to the Court, and did not amount to defamation, incitement to violence or the rejection of democratic principles.

With this judgment the Court continues the line in its case law of 2007 by putting the emphasis on the practical elements of the right to freedom of assembly at the expense - and rightly so, I would say - of purely formalistic notions.

(And just to be clear: the photograph is of another demonstration).

Moratorium on Extraditions to Turkmenistan

Today the Court established a de facto moratorium on extraditions from ECHR state parties to Turkmenistan. In its judgment in the case of Soldatenko v. Ukraine, the Court found that the extradition of the applicant from Ukraine to his own country would violate Article 3 ECHR (prohibition of inhuman or degradign treatment). Nikolay Ivanovich Soldatenko left Turkmenistan in 1999 a few months after an indictment was issued against him for inflicting bodily harm. In 2007 he was arrested by Ukraine on the basis of Turkmenistan's request for extradition. Soldatenko applied for and got an interim measure from the European Court not to be extradited pending the procedure in Strasbourg.

What is really remarkable in today's judgment is that the Court found that in general the detention conditions in Turkmenistan at this moment are so bad and the occurence of torturing of suspects to extract confessions so widespread that extradition of a suspect to that country would violate Article 3 ECHR. One may note that this is irrespective of the (ethnic) status of the applicant or the kind of crime with which he is charged. This amounts to a moratorium, at least for the time being, of extraditions to the central Asian republic! The Court based itself on reports of the United Nations, the United States State Department, the Helsinki Federation for Human Rights and Human Rights Watch of 2006 and 2007. Given this wide basis of information on which the Court built its judgment it is unlikely that this moratorium will be lifted any time soon, unless the situation in Turkmenistan drastically improves.

New Method of Compensation under Article 41

Yesterday, the Court issued its judgment on just satisfaction in the case of Guiso-Gallisay v. Italy. The case concerned a rather straightforward situation of indirect expropriation. The Court seized the opportunity to introduce a new and more equitable method of awarding compensation under Article 41 ECHR. The Court's press release summarizes this new method as follows:

The method used hitherto was to compensate for losses that would not be covered by payment of a sum obtained by adding the market value of the property to the cost of not deriving earnings from the property, by automatically assessing those losses as the gross value of the works carried out by the State plus the value of the land in today’s prices. However, the Court considered that this method of compensation was not justified and could lead to unequal treatment between applicants, depending on the nature of the public works carried out by the public authorities, which was not necessarily linked to the potential of the land in its original state. In order to assess the loss sustained by the applicants, it therefore decided that the date on which they had established with legal certainty that they had lost the right of ownership over the property concerned should be taken into consideration. The total market value of the property fixed on that date by the national courts was then to be adjusted for inflation and increased by the amount of interest due on the date of the judgment’s adoption by the Court. The sum paid to applicants by the authorities of the country concerned was to be deducted from the resulting amount.

We will see in the future whether this new method makes the satisfaction indeed more just.

Social and Economic Rights and the ECHR

Last week Jean-Paul Costa, the President of the Court, gave the opening speech (in French) at a seminar on economic, social and cultural rights organised by the French Human Rights Commission. It is well-known that the European Convention does not contain many socio-economic rights as such (the few exceptions being the protection of property and the right to education). Thus Costa specicifally pointed to that other important European human rights treaty, the European Social Charter. The Court has increasingly started to refer to that text. In addition, the Court's president noted that the Court has on a small scale, but for many years already, read socio-economic rights into the existing provisions of the Conventions. Notably, he implied that this development may continue in unexpected directions in the years to come. He referred to a recent application by a Russian citizen (Budina) who complained that his pension was so low that it violated Article 3 ECHR (prohibition of inhuman and degrading treatment). In his speech, Costa noted that such applications would have been dismissed as manifestly ill-founded in the past, but that such may not necessarily be the case in the future. In this respect, there are indeed some precedents: in its judgment in the case of Moldovan II (2005), the Court held that the living conditions of a group of evicted Roma were so horrible that there had been a violation of Article 3. This comes close to reading at least a minimum right to housing into the Convention in eviction cases.

Considering the difficulties of having socio-economic rights violations judicially reviewed on the international level, this is certainly a development to be followed. Keep the name Budina in mind!

Privacy Rights of Former Torture Suspects

Last week the Court issued its judgments in the two connected cases of Kyriakides v. Cyprus and Taliadorou and Stylianou v. Cyprus. The three applicants in the cases were retired police officers. In 1993 the three men were accused of torturing suspects (Taliadorou and Stylianou) and negligence in failing to stop this (Kyriakides, their superior). They were acquitted during criminal proceedings, since the prosecution failed to convince the judges that there was a prima facie case. However, an independent inquiry commission appointed by the Council of Ministers of Cyprus later found them guilty of the same offences and they were all dismissed by a ministerial decision of 1993. This decision was later quashed by the Supreme Court, since the three had been dismissed without any trial or disciplinary proceedings. What then followed was a judgment by a lower court awarding them compensation for damage to their psychological and moral integrity and reputation (one may indeed understand what the stigma of 'torturer' causes). The Supreme Court then reversed this compensation decision , holding that the moral injury had no causal link with the decision of dismissal.

The applicants mainly complained about a violation of the right to respect for privacy (Article 8 ECHR). They submitted that the last reversal of the Supreme Court had failed to take into account the harm done to their integrity and reputation. The European Court reiterated that such harm indeed fell within the scope of Article 8. It noted, however, the following in para. 56:

The Court also accepts that Article 8 cannot be relied on in order to complain of the damage to an individual’s reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence. It notes however that the applicants had been acquitted of the offences with which they had been charged and that the domestic court found that there had been no case for the defence to answer.

The European Court held that the Cypriot Supreme Court had failed to sufficiently explain its decision. No assessment of proportionality had been conducted. Thus the domestic courts had overstepped their margin of appreciation and Article 8 had been violated.

The applicants Taliadorou and Stylianou also complained about a violation of Article 6(2) ECHR - the presumption of innocence - but the Court held that the Cypriot Supreme Court's decision on compensation did not undermine their innocence and thus no violation was found on that point.

The judgments shows, as could be expected, that the stigma of torture clearly affects one's right to respect for private life. In addition, the Court clearly established that there is a clear difference in this respect between convicted and acquitted persons. Rightly so, of course.

Suicide in Prison Judgment

Today, the Court issued its judgment in the case of Renolde v. France. The facts of the case are sad: in July 2000 Joselito Renolde committed suicide in prison. He had been arrested and put into detention a few months earlier pending his trial for amongst others armed assault on his former partner and their 13-year-old daughter. In July he attempted to commit suicide with a razor blade in his cell. He was examined by psychiatrists and he told them he had a "history of psychiatric problems" and that he had earlier lived in a psychiatric institution. Antipsychotic medication was prescribed from then onwards, but the prison authorities did not supervise whether he actually took the medication. A few days later he assaulted a warden and as a result was placed in a punsihment cell for 45 days. A few weeks later he was found dead, hanging from the bars in his punishment cell. The investigation showed that he had probably not taken his medicines for at least two or three days.

The application was brought by his sister. She complained about violations of Articles 2 (lack of preventive measures to protect her brother's life) and 3 (inhuman treatment and degrading treatment of her brother) ECHR. The Court agreed with her. Elaborating on its case law in Keenan and Rivière, it found violations of the two articles. It pointed at the specific needs of the mentally disturbed when being imprisoned. Especially the lack of supervision for the taking of the medication and the placement in a punishment cell (the most severe punsihemnt) were crucial elements for the Court.

One may also want to read the short concurring opinion of Judge Villiger,who points at the importance of supervision concerning the taking of medication in all cases of vulnerable persons. Thus, the importance of the matter, in his eyes, goes beyond psychiatric patients, but applies equally to e.g. children.

The press release of the case can be found here.

Two New Academic Articles on the ECHR

As I reported yesterday, the Court looked at its achievements and challenges at a seminar this week. For those interested in reading an external critique of the current problems facing the Court, the following recent article from the Human Rights Quarterly is recommended: Steven Greer, What's Wrong with the European Convention on Human Rights? (Volume 30, no. 3, 2008). This is the abstract:

The European Court of Human Rights faces a potentially fatal case overload crisis. But this is not the only problem confronting the European Convention on Human Rights. The underlying difficulty is the reluctance of the Strasbourg institutions, and others, to acknowledge that the Convention's main function is not to provide remedies for each deserving applicant. It is, rather, to promote convergence in the operation of public institutions at all levels of governance in Europe by articulating an abstract constitutional model which member states should then apply in their own domestic constitutional systems. This article seeks to make the case for "constitutionalization" and to explore the policy implications.

The same issue of the Quarterly contains another article on a highly topical issue in the ECHR context: Jill Marshall, Conditions for Freedom?: European Human Rights Law and the Islamic Headscarf Debate. Here is the abstract:

This article investigates women's choices and personal freedom by reference to the European Court of Human Rights' jurisprudence on national laws banning the wearing of the Islamic headscarf by adult women. The article focuses on how ECHR law is used and misused to shape women's autonomy rights, with specific emphasis on how women's rights to develop and express their own individual identities are impacted under this legal regime. The reasoning of the case law is criticized: no evidence was produced that the wearing of the headscarf was anything other than the women's choice; furthermore, preventing them from wearing it restricts their autonomy in a way inconsistent with other jurisprudence of the same court.

10 Years of the New Full Time Court

Yesterday, the Court organised a seminar to commemorate that in a few weeks from now, on 1 November, it will be exactly ten years ago that Protocol 11 to the ECHR entered into force. The Protocol merged the European Commission of Human Rights with the Court and the Court became a full time functioning institution. Amongst others, the Court used the seminar to meet up with NGOs. President Costa held two speeches, which can be found here and here (both in French). Webcasts of the meeting can be found here and here. Yes, the audiovisual department of the Court does a lot to keep us all informed!

Another Echo of WW II

Two large scale problems arising from World War II were dealt with by the Court in the same month. Last week, I already reported about the finalisation of the Court's pilot case procedrue in the so-called Bug river cases, concerning Poles who had to leave their homes at the end of the War when parts of Eastern Poland were incorporated into the Soviet Union. As a form of compensation for its lost territories Poland was given parts of Eastern Germany. Thus Poland in effect moved to the West. Many of the Polish refugees from the East settled in these territories. The Germans living in those regions were, in turn forced to flee further Westwards, having to leave behind most of their properties.

Last week the Court declared an application concerning the last group inadmissible. The complainants, united in the legal person Preussische Treuhand Gmbh & Co. KG, had lodged a complaint against Poland. Their main claim was that Poland had violated Article 1 of the Convention's First Protocol (property protection) since the taking of the applicants' properties had no legal basis under international law. The depossessions were, according to the applicants, undertaken in a context of ethnic cleansing. They claimed that this crime against humanity was part of a continuing violation of their rights under the Convention. They had never received any compensation.

The application was declared inadmissible on several grounds. As to the Court's jurisdiction ratione personae, it held that the complained acts (the expulsions) could not be attributed to Poland. As the Court noted, large groups of Germans had been forcibly evacuated by the Nazis towards the end of the War and many others had been forced to flee the approaching Soviet Army. During this period the state of Poland had no de facto or de iure control over the territories involved. In addition the Court held that the situation could not be seen as a continuining violation, as for example in Loizidou v. Turkey (concerning Northern Cyprus), since in this case the formal expropriations were legally valid Polish laws of 1946. Since Poland ratified the ECHR only in 1994, the impugned acts fell outside the Court's jurisdiction. No Polish restitution laws existed on this point. As the Convention does not include a duty to enact restitution laws, the application was also inadmissible ratione materiae.

Although I find the Court's argumentation on the separate points convincing, a small internal incongruency struck me: why does the Court on the one hand hold that Poland cannot be held accountable for the loss of property (since the areas were Nazi or Soviet occupied) and on the other hand consider the Polish expropriation laws of 1946 as defining for its temporal jurisdiction? Are we talking about two different sets of legal facts: the ethnic cleansing and loss of property in practice and the loss of property de iure? Only in that case does the Court's argumentation make sense. If so, then the applicant's lawyers did not have a lucky hand in the construction of their case and its presentation, it seems...

The leading case on the Court's temporal jurisdiction is the Grand Chamber judgment in Blecic v. Croatia (2006). For an analysis of the Court's case law preceding that case and the problem of continuing violations, see my own: A Lifeline in Time - Non-Retroactivity and Continuing Violations under the ECHR, published in the Nordic Journal of International Law, vol. 75 (2006) pp. 63-88 (available at IngentaConnect for subscribers and academic institutions).

Georgian Battleground Moving to Strasbourg

The armed conflict between Georgia and Russia concerning the region of South Ossetia might have been relatively short for a war, the effects of this violence are still being felt. Now, the battleground seems to be increasingly shifting to the courtroom. Georgia already filed an inter-state application against Russia with the European Court of Human Rights and the two states also find themselves facing each other at the International Court of Justice. This is not all, however. Today the European Court announced in a press release that it is being flooded by applications from South Ossetians concerning the August events. As of this week, more than 2,700 individual complaints have already been received. Many concern damages to personal health and property. As the Court's press release dryly notes - maybe in an effort to stem the tide somewhat - this has "has increased the already considerable workload". To my mind, it is not clear to what extent the large number of applications are part of an orchestrated effort, but it will certainly only compound the Court's problems...