German Federal Constitutional Court Dismisses Claim for Damages for Violation of IHL

In a decision published yesterday, the Federal Constitutional Court of Germany became the latest and last German court to dismiss a claim for damages brought by survivors or relatives of casualties of a NATO attack on a bridge at Varvarin in Serbia. It is a pity that the decision is not, contrary to the practice of the Court in some other cases of international relevance, available in English. In fact, the Court has not even issued a press release in English (German press release).

The applicants had brought suit against the Federal Republic of Germany in the Regional Court of Bonn, alleging violations of international humanitarian law and requesting damages under international causes of action (treaty and customary law) and under the German law of State delict (Amtshaftung). They were unsuccessful in the Regional Court, the Regional Court of Appeal at Cologne and in the Federal Court of Justice, Germany’s supreme civil court (excerpts from all three judgments here).

The Federal Constitutional Court has now dismissed the applicants’ constitutional complaint. It held, in the briefest of outlines: Continue reading

The ECtHR Clarifies Article 5 (1) (c)

In the recent case of Ostendorf v. Germany, the European Court of Human Rights squarely faced the question whether the police can arrest someone not because that someone has committed an offence, but because he or she is about to commit one. The Court was unanimous in holding that the police could, on strict conditions, do that. Somewhat curiously, however, the Court divided 5 to 2 on why it could to that. This apparently came against the background of extensive and principled argument by the parties. Continue reading

The ECtHR, the Catholic Church and Rights in Conflict

The ever-instructive UK Human Rights Blog (Rosalind English and commenter hp lehofer) reports on an illuminating series of cases, all deriving from one case in Austria. (I should say at once that these were not blasphemy cases along the lines of Otto Preminger Institut v Austria.)

In all three cases, an Austrian news magazine had published reports of police searches at a Catholic seminary at St. Pölten. The police was reported to have searched for child pornography alleged to have been downloaded at the seminary. In connection with these allegations, the news magazine reported that the principal and deputy principal of the seminary had had homosexual relations with some of the seminarians. Some suggestive photographs were also published.

The principal and deputy principal sued before the Austrian courts, requesting damages. Both lost. However, the principal also applied for a judicial injunction against (inter alia) the publication of the photographs. This was granted by the Austrian Supreme Court.

In a strange twist, therefore, both parties of the overall dispute took their cases to Strasbourg. The magazine argued that the injunction had breached Article 10 (freedom of expression), whereas the principal and deputy principal submitted that their rights under Article 8 (privacy) had been violated by the refusal of damages. The cases of Verlagsgruppe News GmbH and Bobi v Austria on the one hand and Küchl v Austria and Rothe v Austria on the other hand therefore effectively pitted the parties from the domestic cases against one another again (even though the cases were technically against Austria, obviously).

In another neat twist, neither side won (except Austria). Continue reading

Nada v Switzerland: The ECtHR Does Not Pull a Kadi (But Mandates It for Domestic Law)

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By Tobias Thienel

This morning, 11 years and one day after 9/11, the European Court of Human Rights has delivered its judgment in Nada v Switzerland. The case concerned targeted sanctions by the UN Security Council, which had (until they were revised) prevented the applicant from leaving the small Italian town of Campione d’Italia. This was because the Security Council sanctions required states to prevent the applicant from crossing their borders, and Campione d’Italia is an Italian exclave within Swiss territory. Because the applicant thus could not enter Switzerland, he could not travel to any other part of Italy, either.


The judgment was eagerly awaited by human rights lawyers, and by those concerned with more general international law, as well. This was largely because the case raised the thorny question of whether the UN sanctions enjoyed precedence over the ECHR under Article 103 of the UN Charter. The Court had avoided this issue in the earlier case of Al-Jedda v United Kingdom, preferring there to read down the UN resolutions and thus remove the conflict by means of a harmonising interpretation. This was convincing, but wasn’t necessarily going to help in Nada, because the obligation not to allow Mr Nada to travel internationally was much more precise than was the alleged duty to detain Mr Al-Jedda. In fact, the Court in Nada has now recognised as much (para 172).


The Court could have done one of several things (see Marko Milanovic’s post at EJIL:Talk):

– It could nevertheless have ‘read down’ the UN obligations even in Mr Nada’s case. This might have involved a judicial extension of the very limited exceptions allowed in the sanctions regime. But this would have been exceedingly difficult.

– It could also have ‘read down’ the ECHR. This it could have done either by denying that the case came within Swiss ‘jurisdiction’ for the purposes of Article, because the matter was determined by the UN. However, the Bosphorus case, another case on the application of UN sanctions by a state, would probably have precluded this. Or the Court could have found Articles 5 and 8 inapplicable on the facts of the case (for the purposes of Article 13, this would have required even denying an ‘arguable case’ under Article 8, which was problematic).

– If the conflict thus could have been avoided from neither the one side nor the other, the Court could have gone along with the Government and the Swiss Federal Court in holding that UN law took precedence over the ECHR. This was unlikely as a matter of judicial policy.

– Instead, the Court could have been minded to follow the ECJ case of Kadi and Al Barakaat International Foundation v Council and Commission. There, the ECJ had declined to give precedence to UN law over the law of the EC/EU (which the Court of First Instance before it had done). The ECJ recast the relationship between EC/EU law and international law on a strict dualist model, thus subordinating the UN Charter to the law of the European Treaties, including fundamental rights law. The ECtHR was unlikely to do this, because the European Convention can by no stretch of the imagination be assimilated to a domestic system, separated from other international law by a dualists’ wall.

– The Court could also have followed the lead of the German Solange I case. This had held (until overtaken by Solange II) that for as long as (the German word ‘solange’ means ‘as long as’) the then EEC did not have a satisfactory body of human rights law, the German Federal Constitutional Court would exercise its competence to review EEC acts under the human rights provisions of the German Basic Law. (Solange II then reversed this position, holding that the German court would not exercise its competence for as long as the EEC retained its body of fundamental rights – which the ECJ had in the meantime created.)


In the event, the European Court did not take any of these positions (except, in part, the first). It is noteworthy, however, that Judge Malinverni (still sitting for Switzerland in this case, but no longer on the Court) advocated a Solange I solution in his Concurring Opinion.

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Assisted Suicide, The Courts and the ECHR

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By Tobias Thienel

On 19 July 2012, the European Court of Human Rights gave judgment in the case of Koch v Germany. The case is notable for advancing the debate on a right of assisted suicide, without itself entering into the debate at all. It is also noteworthy for recognising that not only the person wishing to die, but also that person’s close relatives, have a legal interest in the matter.


The facts were – as so often in these cases –  tragic. The applicant’s wife had been suffering for some time from total sensorimotor quadriplegia, that is to say she was almost completely paralysed and utterly dependent on carers. She wished to commit suicide, and therefore contacted the relevant authorities for permission to obtain some pentobarbital of sodium (otherwise used for lethal injections in the United States). Her application was refused. She eventually committed suicide in Switzerland, where the law was more amenable to her wishes.


Her husband attempted to continue the legal proceedings begun by his wife (and himself). His case was ruled inadmissible at all levels, including by the Federal Constitutional Court (Case No. 1 BvR 1832/07). (Only the court at first instance added, obiter, that the husband would also have failed on the merits, the withholding of the poison having been lawful.) The courts found that the surviving husband could not rely on any rights formerly enjoyed by his late wife. In particular, his rights under the constitutional protection of marriage (Article 6(1) of the Basic Law) did not bestow standing on him to raise the issue whether his wife should have been given the right to obtain the medication to end her life.


The European Court of Human Rights disagreed, at least in the result. It joined the analysis of the German courts in holding that the applicant could not rely on his late wife’s rights under the ECHR as such. However, it found the applicant’s own rights under Article 8 ECHR to be engaged. He had been married to his wife for 25 years and had felt for her during her quest to end her life. Accordingly, on account of ‘the exceptionally close relationship between the
applicant and his late wife and his immediate involvement in the
realisation of her wish to end her life
‘, the Court held that the applicant himself had been directly affected by the decision regarding his wife’s access to lethal drugs (para 50).

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News on the Act of State Doctrine

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By Tobias Thienel


A recent case in the English courts – until now the High Court and the Court of Appeal – has raised absolutely central points about the act of state doctrine, and in so doing has neatly explained the doctrine. (I know this doctrine is not actually a rule of international law, but it is not unrelated.)


The case is interesting also at a political level. The names of the parties are telling: Yukos Capital Sarl v OJSC Rosneft Oil Company [2012] EWCA Civ 855. Yukos famously used to be the company of Mikhail Khodorkovsky, the businessman and billionaire who has fallen foul of the Kremlin and has spent the last few years in prison. His company, too, has been largely broken up and rid of its assets. The respondent in the English proceedings, on the other hand, Rosneft, is a Russian state-controlled company.


Yukos Capital Sarl had won an arbitral award against Rosneft. This had later been annulled in Russian state court proceedings. However, a court in the Netherlands (the Gerechtshof Amsterdam at second instance) later still recognised the arbitral award and declined to recognise the judgment annulling it. The court held that the Russian court had not been impartial and independent owing to the strong political elements of the case (Decision of 28 April 2009, Case No. 200.005.269/01, available via


The case then moved to England. As in the Netherlands, Yukos sought recognition and enforcement of the award in its favour. Also as in Amsterdam, Yukos argued that the Russian annulment should be refused recognition because it had constituted ‘a travesty of justice’.


Rosneft resisted this argument on the basis of the English act of state doctrine. This doctrine holds,in the broadest outline, that English (like U.S.) courts ‘will not sit in judgment on the acts of the government of another done within its own territory‘ (Underhill v Hernandez, 168 U.S. 250, 252 (1897)) or ‘will not adjudicate upon the transactions of foreign sovereign states‘ (Buttes Gas Oil Co v Hammer (No 3) [1982] AC 888, 931G). On this basis, Rosneft said that the decision of the Russian courts, as a sovereign act, could not be questioned in an English court.

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Circumcision and the German Courts

gavelApologies for my prolonged absence from these digital shores.


Parts of Germany and Europe are currently all abuzz due to a judgment of the Regional Court (Landgericht) of Cologne, under which the circumcision of young boys incapable of giving consent constitutes an offence of causing actual bodily harm. The defendant, a Muslim doctor, was acquitted only because he had been in an unavoidable error of law. Adam Wagner at the UK Human Rights Blog has a useful summary and a good English translation of the judgment.


This post is intended not so much to give my opinion on the merits of the case. To be brief, I rather doubt that the Regional Court has given sufficient weight to the freedom of religion. The fact that the procedure alters the body of the boy forever is clearly a valid point in balancing the rights of freedom of religion and of the physical integrity of the boy, but I don’t think it’s decisive as such. Parents influence their children in many ways, many of which are ultimately irrevocable. Nonetheless we accept the right of the parents to take such decisions with effect for their children. Moreover, there is a technical legal point: Certainly under the German Basic Law, and in some respects also under the ECHR, freedom of religion receives greater protection than physical integrity. This should be considered in striking the balance, although it obviously does not provide a complete answer.


The main question for this post is one that Adam Wagner briefly alludes to at the UKHRB: The Regional Court is at the lowest level of German courts bar one. Its judgments therefore do not carry a great deal of authority. Other courts will not be deterred from taking a different view, as they might be if the judgment had been one of a superior or supreme court. The question therefore arises, with a view to the development of the law, whether the case from Cologne can now move up the hierarchy of courts.


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Vacancy for a Lecturer in International Law


The University of Glasgow has announced a vacancy for a Lecturer in International Law. This is the fifth position at the university exclusively in international law. The new position is thus in line with the university’s overall plan to strengthen its profile in international law, with particular emphasis on the issues of law and security.


The vacancy notice, with all the details, is here. Anyone interested in the position may also contact Professor Christian Tams at christian[dot]tams[at]glasgow[dot]ac[dot]uk.

Issues of attribution in Al-Jedda and Srebrenica: The cases compared

By Tobias Thienel

My co-blogger Otto has a post at the blog of the Peace Palace Library, announcing and discussing the English version of the Srebrenica judgments in the Court of Appeal in The Hague. The two judgment, which are nearly identical, are available here; Otto’s post explains the reasoning of the Court of Appeal, as well as that of the court below (which was overruled).


I will now take the opportunity to offer a very brief comparison between the Dutch case and the treatment of the attribution issue by the European Court of Human Rights in Al-Jedda v United Kingdom (GC). As will be recalled, Al-Jedda concerned the attribution of measures of internment in Iraq to the UN or to the armed forces of the UK, whereas the Srebrenica cases in The Hague were about liability for the failure of Dutch peace-keeping forces to protect Bosnian civilians from the massacre in Srebrenica in 1995.


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“Pinochet No. 4”? Immunity ratione materiae returns to the High Court

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By Tobias Thienel

The Pinochet line of cases in the English courts, and particularly in the UK House of Lords, will be reasonably familiar to most international lawyers. Whether rightly or wrongly, they stand for important propositions as to the immunity of foreign officials, chief among which was the proposition that immunity was unavailable for acts of torture. (I say ‘rightly or wrongly’, because the central holding of those cases was not as broad as many thought at the time: see Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270, paras 86 et seq).


Those cases are now joined by a new fascinating case on various issues of immunity in the English High Court: Bat v Investigating Judge of the German Federal Court [2011] EWHC 2029 (Admin) concerned a remarkable set of facts, and culminated in an important holding, with many interesting remarks along the way.


The facts, in broad outline, were these: The investigating judge at the German Federal (i.e., supreme) Court had issued a European Arrest Warrant against a Mr Khurts Bat on roughly the following charges: Mr Khurts Bat, the Head of the Office of National Security of Mongolia, was alleged to have abducted a Mongolian national from Le Havre in France, to have taken him to Berlin and then to have had him flown out to Mongolia, where the abducted person was imprisoned. The scenario, then, was reasonably similar to that in the famous Alvarez-Machain case (see Sosa v Alvarez-Machain, 542 U.S. 692 (2004)).


On the basis of this European Arrest Warrant, Mr Khurts Bat was arrested in London, and his extradition to Germany was approved at first instance by a Magistrates’ Court. However, Mr Khurts Bat contested his extradition on the grounds of sovereign immunity. In a pointer to the importance of the case, his side – more precisely, the Mongolian government – was represented by no less a figure than Sir Elihu Lauterpacht QC. The Foreign Office, as an interested party, was represented by Sir Michael Wood QC.


The Court dismissed all claims to immunity. Most remarkably, it held that immunity ratione materiae – the immunity available to all present and former officials with respect to their official acts – was unavailable where the crimes at issue were alleged to have been committed in the forum state (in this case, Germany).

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