Yukos Lawsuit

In December, I mentioned a judgment of the Court in the case of Aleksanyan, one of the former executives of the now defunct Russian oil company Yukos. Today the EU Observer reported that the Court declared a claim of the shareholders of that company admissible. Reportedly, they claim more than 32.5 billion euros in damages, making this the ECHR case with the largest possible financial implications in its history. No news on the Court's site as yet, nor in the HUDOC search engine. But the EU Observer's article tells us that Russia's ambassador to the Council of Europe saw this as another sign of the "politicisation" of the Court. A wobbly road ahead, whatever the outcome of the case will be.

Annual Report of the Court

Yesterday, at a press conference in Strasbourg, the Court presented its annual report. For Court watchers, the report presents a familiar continuation of the trends of the last few years. A rising number of Court judgments (1,543: up 3%) and 30,163: up 11%), but an even higher rise in new applications (around 50,000, up 20%!). This has the pernicious effect that no matter how much more productive the Court has become, 2008 has been another year of increasing backlogs.

An insightful table of judgments divided per country shows that most judgments were issued against Turkey (257), Russia (233), Romania (189), Poland (129) and Ukraine (110). Four out of these five (Poland excepted) reflect 57% of the new applications lodged in 2008. They will thus probably still top the charts of shame in the years to come. It seems that the Convention system is at its least effective in its (South-)Eastern parts. At the other end of Europe, economically hard-hit Iceland did not get any judgment.

As to the kind of violations, the usual suspects surface: the highest numbers of violations have been found under articles 5 (right to liberty), 6 (fair trial), 13 (effective remedy), and 1 Prot. 1 (property). These outcomes in themselves give some indication that many human rights violations are part of systemic defaults in the countries involved: trials that take too long, judgments that are not enforced, remedies that are not available. In his press conference yesterday, president Costa explained that one of the main lines of reform for the Court would be the effective execution of the judgments of the Court on the national level to avoid overburdening of the Court by repetitive cases. I predict in that context a rise of the pilot judgment procedure.

This year, some rights were spared the taint of violation (which does not mean that they are fully guaranteed, sadly): the prohibition of slavery), the right to marry, the right to education and the right not to be tried or punished twice (and maybe some other rights in the protocols, which the Court grouped as 'other rights').

More on all of this can be found in the Court's Annual Report over 2008, which also contains a handy overview of the Court's cases of that year. I would particularly like to draw the readers' attention to the last two pages, in which one can find a table of allocated applications per country as a ratio of its population. This picture of the 'relative' problems (as compared to the absolute ones) is telling: In the top 4 one finds on places 4, 3, and 2 respectively: Bosnia and Herzegovina, Moldova, and Georgia. This might not be too surprising to many people, but what is interesting is the number 1 place of the highest number of applications per 10,000 people is: Slovenia! I leave it to the curious to analyse what the reason for this may be.

Today the Court will formally start the judicial year 2009. More on that next week!

Environmental Pollution Judgment

It is widely known that the extraction of precious metals from mines often happens by using dangerous chemical substances. If not properly used, such substances can cause damage to the health of people living in the vicinity of such a mine and to the environment. This is exactly what was at stake in one of yesterday's judgments of the Court: Tatar v. Romania. The Court unanimously found a violation of the right to private and family life (Article 8 ECHR). The case is another important environmental law case of the Court: it further specified the state's duties in the realms of precaution and public information.

The applicants, father and son Tatar, lived in the near vicinity of a gold mine in Baia Mare. At the end of the 1990s the gold mine's operating company Transgold obtained a permit to operate the mine with the use of sodium cyanide. In 2000 an accident occurrred: a dam breached, causing the release of 100,000 m3 of cyanide contaminated water into the environment. Father Tatar brought proceedings complaining of the environmental and health hazards (his son was asthmatic) of this disaster. Eventually, no one was prosecuted for this.

In their initial application in Strasbourg the Tatars called this "mass poisoning" and even "genocide" and complained that the situation posed a threat to their right to life under Article 2 ECHR. The Court, however, chose to deal with the case under Article 8, as it has done with other environmental issues before.

Romania, according to the Court, had not sufficiently evaluated the possibly serious risks of the gold extraction method used in the mine. Nor had it informed the general public sufficiently, since the public had not been given access to the scientific studies available, either before or after the acccident. The Court explicitly referred two times to the precautionary principle under international envrionmental law, as contained in the Declaration of Rio and the jurisprudence of its peer, the European Court of Justice. A strong and new connection to the wider legal context, it seems! The Court also noted that the Romanian authorities did not stop the activities of the mine, even after the accident. In conclusion, Romania had failed to abide by its positive obligations under Article 8 ECHR.

Since the Court did not consider a causal link to be present between the health deterioration of Tatar junior and the pollution, no damages whatsoever were awarded. On this point judges Zupancic and Gyulumyan dissented. Their partial dissent offers an intriguing critique of a rigid adherence to classical causal thinking, as opposed to more modern probabilistic theories. In these cases of exposure to toxic materials, there dissenting judges stated, absolute causality is almost impossible to prove in practice. See also paras. 105-106 of the judgment itself on this point. The use of experts (medical or statistical) could be helpful here and such expertise defies the black-and-white, yes-or-no answer that lawyers would like to hear. Nevertheless, they can be essential to come to a well-argued conclusion (see also my earlier comments on the use of experts here) And they certainly have a point. Well worth a read!

The judgment is in French (although the admissibility decision is available in English too), but a press release in English can be found here.

New Issue EHRLR

As the International Law Reporter notifies, a new edition of the European Human Rights Law Review has recently appeared (2008, no. 6, journal accesible through Westlaw). Specifically of interest for watchers of the European Court of Human Rights is an article by Philip Leach, entitled 'The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights'. For more on the topic, see also my earlier posts here and here.

Speech of Court's President on Social Rights

Last week, the Court's president Jean-Paul Costa spoke at the invitation of the Brussels Bar on social rights and the ECHR. Amongst others, he pointed out that the Court is increasingly showing, in its judgments, its awareness of the importance of the European Social Charter - which one could call the socio-economic twin of the ECHR, although the supervisory system is quite different. As Costa succinctly puts it in his speech, the Court is not an isolated planet in the centre of the European human rights system, since the law of gravity also applies to it. Let's see how strong the gravity will be in the coming years! The speech, in French, can be found here.

After the Judgments - Consequences

For all those curious to learn more about what happens once the Court has issued a judgment, I would like to refer you to this clear overview provied by the Council of Europe, full of links and examples. Particularly useful to get an insight into the follow-up to judgments is this list of general measures taken to prevent new violations of the Convention. Although it was last updated in May 2006 (hopefully a new update will be made soon), it is extremely handy for cases decided before that time!

United by Force

States should be extremely careful to intervene in religious matters and if they do so at all, they should do it in a neutral way. That is the outcome in the case of the Holy Synod of the Bulgarian Orthodox Church and other v. Bulgaria, in which the Court issued its judgment today. The Holy Synod is one of the two rivalling churches claiming to be the true Bulgarian Orthodox Church. The split occurred soon after the demise of communism in Bulgaria in 1989, when a large group of clergy and believers tried in vain to replace the patriarch who had been nominated in the early 1970s by the Communist party. Ever since, the entire country has been divided among the two alternative churches. In 2002 a new act of religious denominations de facto favored the original church. The 'alternative synod', as it was popularly known, was refused registration. In 2004 clergy of the alternative synod were evicted from over 50 church buildings and monasteries by the authorities as illegal occupants. The buildings were transferred to the rivalling church.

The European Court once again emphasized that the state should remain neutral in religious matters. It considered the actions of the Bulgarian authorities to be contrary to Article 9 ECHR (freedom of religion). Taking sides in a controversy in a religious community by such actions went againt the organizational autonomy of such a community. Although the Court accepted that the state had had good reasons to consider action, they should have done so by using truly neutral measures of dispute settlement. According to the Court, the 2002 Act had a false appearance of neutrality. Unity of a religious community cannot be imposed by the state. In this case the interference had been both unlawful and unnecessary.

For an overview of church-state relations in Bulgaria in the context of the ECHR, see the article of Jenia Peteva, 'Church and State in Bulgaria', in Ferrari a.o. (eds.), Law and religion in Post-Communist Europe (2003), accessible through google scholar.

The press release can be found here.

Pilot Judgment on Russian Non-Enforcement

Burdov returns - that could be the motto of last week's Court judgment in Burdov v. Russia (No. 2). Anatolyi Burdov is an applicant that cannot fail to arouse sympathy. In the 1980s he helped in the emergency operations after the Chernobyl nuclear diaster and was exposed to radioactive emissions. As a result, he was entitled to social benefits, but the authorities failed to pay those fully or in time, even though domestic courts had ordered the money to be paid. On that account he won his case before the European Court of Human Rights - the first ever judgment of the Court in a case against Russia (2002). Now, more than six years and 200 judgments on the non- or late enforcement of domestic judgments later, the Court has symbolically chosen this second case about the same applicant and about comparable issues of non- or late enforcement to be a pilot judgment (for more on pilot judgments, see my earlier post here). On top of finding yet again violations of Articles 6 and 1 Protocol 1 ECHR, it also found a violation of Article 13 (the right to an effective remedy). This is interesting, since the applicant had not complained about that latter aspect, but the Court took it up of its own motion and used it to come to a possible solution. Under Article 46 ECHR it indicated the following on what Russia is now required to do:

In accordance with Article 46 of the Convention, the Court’s findings in paragraphs 101-117 above clearly require the setting up of an effective domestic remedy or a combination of remedies allowing adequate and sufficient redress to be granted to large numbers of people affected by the violations in question. It appears highly unlikely in the light of the Court’s conclusions that such an effective remedy can be set up without changing the domestic legislation on certain specific points.
139. In this respect, the Court attaches considerable importance to the findings of the Russian Constitutional Court, which has invited Parliament since January 2001 to set up a procedure for compensation of damage arising, inter alia, from excessively lengthy proceedings. Of particular importance is the finding made by reference notably to Article 6 of the Convention that such compensation should not be conditional on the establishment of fault. The Court also welcomes the legislative initiative recently taken by the Supreme Court in this area and notes the bills tabled in Parliament on 30 September 2008 with a view to introducing remedies in respect on the violations in question. The Court notes with interest the reference to the Convention standards as a basis for determining compensation for damage, and that the average amounts of compensation for delayed enforcement were calculated by reference to the Court’s case-law.
140. It is not, however, for the Court to assess the overall adequacy of the ongoing reform, nor to specify what would be the most appropriate way to set up the necessary domestic remedies. The State may either amend the existing range of legal remedies or add new remedies to secure genuinely effective redress for the violation of the Convention rights concerned. It is also for the State to ensure, under the supervision of the Committee of Ministers, that a new remedy or a combination of remedies respects both in theory and in practice the requirements of the Convention as set out in the present judgment. In so doing, the authorities may also have due regard to the Committee of Ministers’ Recommendation Rec(2004)6 to member states on the improvement of domestic remedies.
141. The Court accordingly concludes that the respondent State must introduce a remedy which secures genuinely effective redress for the violations of the Convention on account of the State authorities’ prolonged failure to comply with judicial decisions delivered against the State or its entities. Such a remedy must conform to the Convention principles as laid down notably in the present judgment and be available within six months from the date on which the present judgment becomes final.

Note specifically the precise time limit set by the court (six months)! In addition, the Court decided for one year to adjourn proceedings for the period of one year in all new Russian applications on the same issue of non- or unreasonably late enforcement. Finally for all the cases already lodged with the Court and communicated to Russia, the country should provide redress to those applicants within one year as well.

The approach of the Court seems particularly efficient and also as just as possible to the victims involved. However, it will also be a major test in the troubled relations between Russian and the Strasbourg institutions. To put it mildly, it is no secret that Russia is not very happy with the Court's judgments in the many Chechen cases. No surprise then that the Court has found a (somewhat) less sensitive area to find a systemic problem. Nevertheless, the compliance of Russia with this judgment within the time limits indicated will be a real litmus test of its will to cooperate with the ECHR machinery. Let us hope for the best. It is now up to the Committee of Ministers of the Council of Europe to supervise the follow-up closely, both for the sake of the victims and the effectiveness of the Court itself.

The start of the new year seems anyhow to be a period in which the Court is trying to 'clean up' its roll of cases, since it also noted - yet again - that a structural problem existed in relation to Romanian restitution laws (this time restitution laws concerning nationalised immovable property sold by the state to third parties who had purchased the properties in good faith) in the case of Katz v. Romania. Yet another example, where hundreds of similar cases have been decided or are pending. It seems that the Court, at least partly out of a strategy to remain standing amidst the flood of applications, is increasingly pointing out systemic problems and even, as in Burdov, resorting to the pilot case procedure. See also my post in December here on earlier systemic problems in Romanian restitution law.

Court Starts Addressing Georgian-Russian Conflict

The Court issued a press release today which indicates that it has started to deal with the delicate issue of claims arising from last summer's Georgian-Russian war. This concerns individual complaints, not the inter-state complaint. Here is the full text:

A Chamber of the European Court of Human Rights has recently examined seven applications against Georgia concerning hostilities which broke out in South Ossetia at the beginning of August 2008. The applications were lodged by six inhabitants of South Ossetia and a member of the Russian Armed Forces attached to the peace keeping corps in Tskhinvali, South Ossetia .

The cases mainly concern an alleged violation of the applicants’ or their close relatives’ right to life, inhuman or degrading treatment, interference with the right to respect for private and family life and home, damage to property or its destruction, absence of an effective domestic remedy and discrimination on the ground of ethnic origin/nationality. The applicants rely on Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention.

The Chamber decided to give priority to the applications under Rule 41 of the Rules of Court and to communicate them to the Georgian Government under Rule 54 § 2 (b).

These applications belong to a group of more than 3,300 cases with a similar factual background which have been lodged with the Court since August 2008.

(Belgian) Jury Trial System Counter to ECHR

The Court's judgment on Tuesday in the case of Taxquet v. Belgium has led to a lot of debate in that country. The applicant in the case was one of the convicted persons in the large trial in the highly publicised case concerning the murder on politician André Cools. The affair itself already caused a large scandal in Belgium, but now even its aftermath is the cause of uproar. That is because the European Court held in this case that the verdict on the national level, issued on the basis of trial by jury (a system used in Belgium for the more severe crimes), was not sufficiently motivated and thus ran counter to Article 6 ECHR (right to a fair trial). The Court considered that the motivation in a criminal judgment both protected the accused and also formed a bulwark against arbitrariness. In the Belgium system (and several others) a jury can only answer the questions posed to it by yes or no or guilty or not guilty. Thus, a lot depends on the amount and especially the precision of the questions. In this particular case, the questions were too general and too vague (and the same as for several of the other accused persons). The Court added that in a system of trial by the "people" it is especially important to explain to public opinion on what reasoning a decision was reached.

Hours after the Strasbourg judgment, a discussion erupted in Belgium on what should happen now. The Government acknowledges that the trial by jury system will have to be reformed to comply, but also thinks it will need some time. Therefore, it has announced that it will ask the Court to review the case in a Grand Chamber. Meanwhile, at least one trial by jury was put on hold by a local judge (but resumed the next day) and lawyers of suspects in other cases have called for similar measures to be taken. For reports in the Flemish press, click here and here. For reports in the Walloon press, click here and here. One suggested option is that the trial judge will attend the jury's deliberations to help draft a judgment which does sufficiently motivate. That will of course have to happen without influencing the jury - a challenge in itself! Meanwhile, Taxquet will remain imprisoned. The Court did award 4000 euros to be paid by Belgium for non-pecuniary damage and also indicated that the most appropriate form of redress would be a retrial or re-opening of the case.