It’s a good day for human rights law (Part 2)

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By Tobias Thienel

Following up on my previous post on today’s trio of important cases from Strasbourg, I will now offer some further thoughts – still far from exhaustive – on the three judgments. Of course, my pointer to EJIL:Talk (where Marko Milanovic’s thoughts are expected) remains.


As for Al-Skeini, I think it can be predicted with some confidence that this case will stand as one of the most important cases on the extra-territorial application of the European Convention on Human Rights. Whether it can eclipse Bankovic – which it cites a great deal – remains to be seen and is a little doubtful. However, Al-Skeini is one of the few cases that give some impression of what ‘effective control’ means. Certainly, the judgment does not actually do much to actually define the concept, but its outcome is telling. If the somewhat precarious grasp that the British Army had on events in Basra at the relevant time is sufficient (if taken with the role of the UK as an occupying power), then the test is clearly less demanding than has occasionally been thought. True, the fleeting presence of the odd military patrol or aircraft may not be enough (cf. Issa and Others v Turkey; Bankovic and Others v Belgium and Others), but the facts in Al-Skeini – regarding the general state of affairs and the specific situations in which the shootings occurred – were not all that much stronger. It may be, certainly, that the fact of military occupation in the sense of international humanitarian law weighed heavily with the Court (as it has with Judge Bonello), but ‘effective control’ remains, even on the approach of the Court, above all a factual concept.

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It’s a good day for human rights law

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By Tobias Thienel

It’s a good day for human rights law because the Grand Chamber of the European Court of Human Rights has today delivered its judgments in Al-Skeini and Others v United Kingdom, Al-Jedda v United Kingdom and Bayatyan v Armenia. In all these cases, the applicants have now won, after losing everywhere else on the way to the Grand Chamber. I, for one, did not necessarily expect that.


I will have something more to say on these cases later, and readers are advised – though no doubt unnecessarily – to turn to EJIL:Talk where Marko Milanovic is sure to have enlightening comments fairly soon. Suffice it to say here and at this stage that

– in Al-Skeini the Grand Chamber very quickly demolished the reasoning of the House of Lords (and the High Court before it) in holding that the European espace juridique of the Convention (as mentioned in para 80 of Bankovic and Others v Belgium and Others) was in no way a limit to the extraterritorial application of the ECHR. This is clearly right. I do not begin to believe that the Court was influenced by my article on this question (the works of Ralph Wilde and Marko Milanovic may be another matter), but it is good to be proved right by high authority.

– also in Al-Skeini, the Court found that the UK had had effective control for the purposes of Article 1 because, as an occupying power, it had exercised some of the powers of the local state. The Court is not entirely clear whether it applied the model of ‘jurisdiction over territory’ or of ‘jurisdiction over a person’, but it seems that it was the latter, if somewhat curiously set in a general situation of some control over territory.

– still in Al-Skeini, it is regrettable that the Court has not followed the clear line taken by Judge Bonello in his – beautiful! – concurring opinion. It has spoken of ‘effective control’ as the decisive matter, but in rehearsing other bases of extraterritorial application has stuck to the strange view that the powers of diplomatic agents and the like under general international law were somehow decisive as well. This should be a matter of control as in all other cases.

– in Al-Jedda, the Court simply read down the Security Council resolutions that were said to have authorised the applicant’s detention. In doingso, it quite properly approved a principle of construction by which SC resolutions should, where possible, be read to comply with human rights law. Only Judge Poalelungi found this impossible. The majority avoided the Article 103 point, but the sole dissenting Judge would have followed the House of Lords on this matter.

– finally, in Bayatyan, the Court ruled in favour of a right of conscientious objection under Article 9 of the ECHR. It overruled the (small) Chamber and a good body of Commission case law in holding that Article 4 (3) (b) had nothing to say about this. This meant that the interesting methodological point about the limits of the ‘living instrument approach’ in the face of clear implications from the wording (as to which see this previous post) did not arise.

Slavery Exists in Modern Britain

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By Tobias Thienel

Okay, so technically, the case was not about slavery in the strict sense, but the facts certainly amounted to human trafficking and forced labour. But quite regardless of the epithet, the facts of OOO v The Commissioner of Police for the Metropolis, a recent case in the High Court in London, are chilling.


This case under the Human Rights Act was largely about questions of fact, but these are remarkable enough. The story the judgment tells is of a number of young girls who were tricked into coming to Britain from Nigeria on the promise of being given a better education, but who were, it appears, ruthlessly exploited. Once they had arrived in Britain, they were taken to British family homes, where they were made to work long hours for no pay, and where they were often physically abused.


Against that background, the case was about whether the police had done enough to investigate the complaints of the victims and prosecute those responsible. The judge – Wyn Williams J – found that they had not discharged their obligations of investigation under Article 4 of the ECHR. In that, the case is a lot like Rantsev v Cyprus and Russia and Siliadin v France (which the judge duly applied).


On the law, the judge rightly but not very remarkably held that the limits applicable to the obligations of investigation under Article 4 were much the same as under Article 2. What is remarkable is that these things appear to have happened more or less in the centre of London. Moreover, what is potentially more worrying is that either the police dragged their feet despite the serious crimes that had been brought to their attention, or the victims hesitated to seek help and push for prosecutions.


Neither state of affairs would be at all satisfactory, given that conduct of the kind alleged in this case ought to be a thing of the past. The authorities should surely bequite proactive when such allegations are made, and circumstances should be such that victims will not be afraid to seek help (which is a matter not least of immigration law). This should be so everywhere, but politically speaking, action against human trafficking and ‘modern slavery’ ought to have particular traction in a continent and a country that pride themselves on having acted against ‘old slavery’ centuries ago (even if that came some considerable time after starting the slave trade in the first place).

ECtHR Delivers Judgment in Khodorkovskiy v Russia

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By Tobias Thienel

Today, the European Court of Human Rights – by a Chamber – delivered judgment in the case of Khodorkovskiy v Russia. The applicant is a famous man, and his case in the Russian courts is probably best described as infamous. The European Court has now stepped in to some extent, but has not really thrown the kitchen sink at the Russian authorities.


The Court found, in particular, the the conditions of Mr Khodorkovskiy’s detention (before and during his first trial) had been in violation of Article 3 of the Convention, but only for a comparatively short time. The Court also found that the applicant’s initial arrest had not genuinely been ‘for non-compliance with a court order’ (Article 5(1)(b) ECHR), as the authorities had claimed, but had actually been intended to facilitate his prosecution. This may be regarded, if only by comparison, as a more or less technical error, inasmuch as the authorities could presumably have arrested the applicant as part of the criminal proceedings (Article 5(1)(c) ECHR).


More worryingly, the authorities had also confiscated notes taken by Mr Khodorkovskiy’s defence lawyer, on no apparent legal basis and in complete disregard of legal privilege. To make matters worse, a court had then relied on that note in extending Mr Khodorkovskiy’s detention. This amounted to a violation of Article 5(3) ECHR, which the Court has now duly found. Also, two orders prolonging pre-trial detention were held to have been without proper justification, for a number of worrysome reasons. Moreover, the Court found several violations of Article 5(4), which, taken together, amount to a picture of very serious unfairness.


On a more politically sensitive charge, the European Court did not find a violation. The applicant had submitted, plainly not without justification, that his prosecution and his overall treatment had been politically motivated, and hence had been based on improper motives within the meaning of Article 18 ECHR. He had also referred to the well-known charge that his prosecution had in fact been ordered by Vladimir Putin himself. On this point, the ‘money quote’ from the judgment is as follows:


‘The Court admits that
the applicant’s case may raise a certain suspicion as to the real
intent of the authorities, and that this state of suspicion might be
sufficient for the domestic courts to refuse extradition, deny legal
assistance, issue injunctions against the Russian Government, make pecuniary
awards, etc. However, it is not sufficient for this Court to conclude
that the whole legal machinery of the respondent State in the present
case was
ab initio misused, that from the beginning to the end the authorities
were acting with bad faith and in blatant disregard of the Convention.
This is a very serious claim which requires an incontrovertible and
direct proof. Such proof, in contrast to the
Gusinskiy case, cited above, is absent from the case under


In so holding, the Court did not give the Kremlin the ultimate rap across the knuckles in this case. Even so, the rebuke is obvious (although the bit about refusals of extradition etc. is a reference to certain domestic cases in which such decisions have been taken on account of Mr Khodorkovskiy’s case).


The Court has shown itself to be careful not to push the boat out too much. It found a number of very serious violations, but did not allow its obvious concern to colour its judgment on other points. One wonders, however, how the Court will deal with the second Khodorkovskiy trial when that comes before it. It certainly appears eminently arguable that this involved a violation of Article 18, given that there seems to be much less to the recent charges than to those addressed in today’s judgment.

The King’s Speech is a Public Function

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By Tobias Thienel

(It’s also a great film, but never mind that)

This, more or less, is the holding of a recent case in the European Court of Human Rights, Otegi Mondragon v Spain. The applicant in that case, a Basque politician, had been convicted of gravely insulting the King of Spain. He had, in particular, described the King – in his capacity as head of the armed forces – as responsible for torture and accused the King of ‘protecting torture and imposing his monarchical regime on our people by means of torture and violence.’


When this case came to Strasborg under the rubric of Article 10 (freedom of expression), the Court recalled that ‘the limits of acceptable criticism are […] 
wider as regards a politician as such than as regards a private individual.
Unlike the latter, the former inevitably and knowingly lays himself
open to close scrutiny of his every word and deed by both journalists
and the public at large, and he must consequently display a greater
degree of tolerance’
(Lingens v Austria, para 42; Otegi Mondragon v Spain, para 50). This raised the question whether the King of Spain, as hereditary head of State, fell to be regarded as a politician.

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Julian Assange to be Extradited

By Tobias Thienel


I may have something more to say on this in due course, but for now, here’s the decision of the Westminster Magistrates’ Court. At first glance, it would seem that the judge has interesting things to say on (a) the evidence against Mr Assange, (b) the effect of certain statements hostile to Mr Assange by the Prime Minister on the criminal proceedings and (c) the prospect of a fair trial in Sweden, with particular regard to the likelihood that his case may be heard in private.

French Legislation on Arrests at Sea: Comments at ECHR News Blog

By Tobias Thienel

France has recently passed a law on arrests at sea, concerning in particular the arrest of suspected pirates by the French Navy. This legislative action was in response to the judgment of the Grand Chamber of the European Court of Human Rights in Medvedyev and Others v France.


The European Court of Human Rights News (Coverage of the European Court of Human Rights with a focus on Belgium, France and Switzerland) blog now has a post on whether France has succeeded in complying with the Grand Chamber judgment. I am happy to say that they have asked our opinion on this matter, and that some comments by yours truly, on behalf of The Invisible College, are included in their post.

ICJ Merits Judgment in Ahmadou Sadio Diallo Case

Peace PalaceBy Tobias Thienel

The International Court of Justice has today given judgment on the merits of the Case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo). The judgment is available here; a press release with a short summary of the judgment is here.


The Court held some of the claims made against the Democratic Republic of the Congo inadmissible for having been filed too late in the course of the proceedings. On the merits, the Court found the DRC to have violated Mr Diallo’s right of physical liberty and the prohibition on unlawful and arbitrary expulsions. As to the substance of the human rights instruments at issue, the Court was happy to follow the jurisprudence of the UN Human Rights Committee and the African Commission on Human and Peoples’ Rights, as well as that of the European and Inter-American Courts of Human Rights. This is, of course, fully consonant with its approach to the ICCPR and ICESCR in the Wall opinion (paras 109 et seq). Interestingly, the Court has now indicated its reasons for adhering to such practice, pointing to the role given to the Committee and the Commission by the relevant treaties as well as the need for clarity and consistency (paras 66, 67).


In substance, the Court was not particularly adventurous on the human rights issues. Judges Keith and Greenwood, however, dissent on the interpretation of the prohibition on arbitrary expulsions, arguing that this extended only to procedural, but not to substantive standards.


The Court did not find any violations of Mr Diallo’s rights in his capacity as associé (partner or shareholder) in several companies. (The rights of those companies themselves had been excluded from the case at the preliminary objections stage because those companies were not Guinean and Guinea therefore was without standing to exercise diplomatic protection with respect to them.) In the result, the Court found the DRC liable to make reparation in the form of financial compensation. In accordance with the traditional logic of diplomatic protection, such compensation will be paid to Guinea rather than Mr Diallo (cf. Barcelona Traction case, paras 78 et seq). The amount of compensation may yet be fixed by the Court if the parties fail to agree.

Bayatyan v Armenia: The Right of Conscientious Objection before the Grand Chamber

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By Tobias Thienel

The Grand Chamber of the European Court of Human Rights has recently heard oral argument in the case of Bayatyan v Armenia. I have not yet watched the webcast of the hearing, but I would like to quickly flag the important issues raised by the case. This I will do primarily by reference to the Chamber judgment that is now being ‘appealed’ to the Grand Chamber.


The facts of the case are fairly straightforward: At the relevant time, Armenian law provided for an absolute obligation of national service in the armed forces. There was no right of conscientious objection, either in the form of choosing an alternative form of civilian national service, or as a general release from all national service. The applicant objected to all military service, being a Jehovah’s Witness. He therefore refused to perform national service. As a consequence, he had to spend time in prison.


When his case came to Strasbourg, the applicant’s argument chimed perfectly with a very strong trend in recent – and not so recent – European practice. Very nearly all member States of the Council of Europe had recognised a right of conscientious objection (if they had any national service at all). Also, the Parliamentary Assembly of the Council of Europe had expressly regarded conscientious objection as a fundamental aspect of the freedom of religion in Europe, and the right had been similarly recognised in the Charter of Fundamental Rights of the EU. Moreover, recognition of conscientious objection had even become a condition for admission to membership in the Council of Europe.


Armenia itself had therefore given an undertaking that it would recognise conscientious objection and allow for a civilian form of national service. This it has by now done, but the amendment did not come in time for the applicant’s case. Nor did the applicant succeed at Strasbourg.

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Al-Saadoon Case Not Going to the Grand Chamber

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By Tobias Thienel

Some time ago, I reported in this space on the case of Al-Saadoon and Mufdhi, first in the English courts and then in the European Court of Human Rights. I was remiss in failing to report on the merits judgment (on which see Marko Milanovic’s excellent post at EJIL:Talk!), but I did at least have a few words on the admissibility decision. The merits judgment is now set down for publication in the Court’s official reports, so it’s rightly regarded as somewhat important.


However – somewhat to my surprise – the panel of the Grand Chamber has now refused the UK’s application for referral to the Grand Chamber. Al-Saadoon and Mufdhi therefore now stands undisturbed for the propositions that

– the ECHR does not bow to conflicting other international law (such as obligations of extradition) except on its own terms,

– that the permission of the death penalty in Article 2 of the ECHR has been extinguished, both by subsequent Protocols and sub silentio,

– that Article 3 of the ECHR therefore now covers the death penalty, which amounts to cruel and inhuman treatment,

– that Article 2 of the ECHR and Article 1 of Protocol 13 create an obligation of non-refoulement where there is a risk that the death penalty will be imposed and

– that, once a State has violated that obligation, it may be under an obligation to use diplomatic means to prevent that risk from materialising.


The decision of the panel of the Grand Chamber does not, strictly speaking, approve the Chamber judgment, or take it to the level of authority that a Grand Chamber judgment possesses. It is also probably wrong to surmise what this might mean for the resolution of Al-Skeini and Al-Jedda (on which see another post of Marko’s at EJIL:Talk!). However, it is always nice to see a good judgment sustained on appeal.