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).

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
examination.’

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.

By Dov Jacobs

Cross-posted on Spreading the Jam

I won’t retrace and repeat the numerous online discussions on the general question of the legality of Bin Laden’s killing. You can find some thoughts on various blogs, such as EJIL Talk!, over at Lawfare,  Opinio Juris and Justice in Conflict.

One issue which has not been put forward in what I’ve read is whether UN Security Council Resolutions could be a basis for the legality of the killing. Indeed, discussing the issue with a colleague this afternoon, we wondered whether some UNSC Res, adopted under Chapter VII could be used to justify the killing. It might seem a little far fetched, because, although Res. 1368 implicitly approved the use of force as part of the right to self-defense after the 9/11 attacks, all Resolutions I’ve seen in relation to Bin Laden or Al Qaeda take measures to freeze assets and call for combating terrorism, but don’t explicitly allow the killing of an individual. But it is true that these Resolutions do clearly recognize the organisation and its leader as threats to peace and security and could be loosely interpreted as allowing to take these measures to stop this threat. But all in all, I didn’t believe that this argument was really valid and that the SC had ever had the intention to authorize such actions…

…And then tonight, I saw this astonishing statement from the President of the Security Council, made on behalf of the Council. Here are some notable excerpts from the statement:

“In this regard, the Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilization or group.

…

“The Security Council further reaffirms its call on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks and its determination that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable."

…

“The Security Council reaffirms that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law."

So, reading these paragraphs together in plain English, and if I’m not mistaken, 1) the Security Council approves the death of Bin Laden 2) considers that his death fits the definition of "bringing someone to justice" and "holding him accountable" and 3) considers that his death complies with international law.

Let’s put aside the questionable fact that the SC would explicitly approve the death of an individual, even Ben Laden, and the question of the conformity with International Law, which is nonetheless interesting coming from the main executive organ of the United Nations. What strikes me is proposal number 2. How can a body, which has repeatedly called for the promotion of international criminal justice, and the values of the rule of law and due process that underly it, seriously make such a statement? If that is the definition of accountability, surely we can free some office space in The Hague and just close down the ICC, the ICTY, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. All we need is a naked wall, a blindfold and a firing squad. While we’re at it, we might as well abolish our national criminal law systems. To be clear, I’m not saying that Ben Laden should not have been killed. I’m well aware of the realities of politics. I’m just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be. 

By Dov Jacobs 

Cross posted from Spreading the Jam 

… as a plaintiff, not as a judge. According to this press release from Interights, Balthazar Garzon has filed a complaint before the European Court of Human Rights challenging his prosecution in Spain for having opened an investigation in 2006 into events having taken place during the Franco era, despite the existence of an amnesty law.

Readers of my blog (here, here and here) will know that I did not join Garzon’s fan club when these events unfolded last spring. I was puzzled at how little consideration was given to the Spanish legal system, and ultimately, I believe that Garzon has ambitions that far exceed the constraints of his function in Spain and should consider a career in an international court, such as the ICC.

So what is the basis for this complaint. Here is a relevant portion from the press release:

Judge Garzón’s case represents a threat to the independence of judges and to their role in ensuring accountability for alleged widespread and systematic crimes. In his case Judge Garzón alleges that the criminal case against him in Spain violates several of that country’s obligations under the European Convention on Human Rights. These include the obligation to protect judicial independence generally, including protecting judges from unfounded criminal prosecutions as exemplified by this case. Specifically, the prosecution of Judge Garzón violates the duty not to subject individuals to an inherently unfair criminal process, to only prosecute on the basis of clear criminal law, strictly applied, to respect private life and professional development and the right of judges to reasoned judicial decisions in the exercise of judicial functions.

Just a few brief comments.

First of all, I’m not even sure the case is admissible. Indeed, "the Court may only deal with the

matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken" (Article 35, EConvHR). His case has not started, and therefore Garzon has not exhausted all local remedies, especially given the fact that there is no certainty that he will indeed be found guilty. Of course, Garzon could claim undue delay in the prosecution itself, given that after a year, the trial has not started, but that is not what Interights seems to be arguing.

Second of all, there seems to be a confusion about what the ECHR does. Of course, its ultimate ambition and goal is to promote the rule of law, which does include an independent judiciary, but it is not an institutional supervision body, it does so through the violation of specific human rights of specific individuals. It is NOT an institutional rule of law supervision body. And more importantly, Human Rights Law was always primaril (although arguably that is changing) aimed at protecting individuals against the State, not the State against the State.

How does this apply to the present case? Well, the "obligation to protect judicial independence" is not specific enough to warrant a complaint. What is exactly the right being violated in the particular instance? The Press Release is ambiguous on that, but seems to be claiming the general interest of ensuring accountability for human rights violations. If that is the case, then I believe Garzon doesn’t have standing before the ECHR, as he is not directly affected in that respect. It would be for the victims of the crimes to claim that they have not received an effective remedy due to the amnesty law and the decision not to pursue the investigation, which, as far I can tell, they haven’t done (ironically, I did find a case where plaintiffs complained before the court that they had not benefited from the amnesty law, without raising an eyebrow among the judges…). In relation to this, I’m wondering if this complaint is not only unfounded legally on this point, but also disingenuous in its presentation. Indeed, according to Interight:

 The potential chilling effect on other judges when they come to determine legally or politically controversial cases is obvious, and a serious threat to judicial independence and the rule of law.

But that would only be true if the current prosecution was actually the cause for the interruption of the investigation. However, it was not! Indeed, it appears that in 2008, Garzon went to a confirming judge with his opinion about the amnesty law, who told him that he should discontinue the investigation, which he did. So the threat of prosecution is irrelevant to the fact that he followed orders in 2008. (Incidentally, that makes me agree with one point of the complaint: Garzon seems to have followed the rules. Whatever his opinion of the amnesty law and its applicability, he stopped the investigation when told to do so. That seems to be the normal functioning of a legal system, and I’m not quite sure why he should be prosecuted now)

Third of all, and as an aside, I find quite ironic the claim that a prosecution should be on the basis of "clear criminal law", when human rights activists are usually quite happy to have individuals prosecuted for international crimes that are sometimes ill-defined in elusive customary law, where defendants are expected to know that there is enough state practice (i.e, that he’s taken the time to read the criminal codes of a number of foreign countries) for a particular provision of an international convention has attained the status of custom (see Kononov at the ECHR for an example of that).

All in all, this complaint once again illustrates the style of Judge Garzon, who just cannot prevent himself from showing his grand ambitions in terms of human rights policy, irrespective of the specific legal setting he might be operating in. His current ECHR stint is at best premature, and at worst frivolous, whatever one thinks of the Spanish Amnesty law.

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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