Lennert Breuker
The Open Society Justice Initiative issued a report on the problems that the major international human rights systems are experiencing with regard to effectively converting judgments, including landmark cases, to change ‘on the ground’. The report is online available here.
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.
By Lennert Breuker
Several news-agencies made mention of a prominent Rwandan opposition member, Victoire Ingabire, being arrested on charges of cooperation with a terroristic rebel group, and perhaps more conspicuously, on charges of ‘genocidal ideology’. The precise scope of the relevant criminal provision is not known to me, but according to a Dutch news-agency it concerns a legal prohibition to deny genocide. However, the same (brief) article (http://www.bndestem.nl/algemeen/buitenland/6579160/Oppositieleider-Rwanda-Ingabire-gearesteerd.ece) also states that merely addressing ethnicity is formally prohibited according to Rwandan legislation since the genocide. This seems a bit unlikely, but readers who can confirm this are cordially invited to comment.
By Tobias Thienel
Last Thursday, the European Court of Human Rights heard oral argument in the case of Schalk and Kopf v Austria. In this rather prominent case, the Court is asked to decide whether – and that – the Convention guarantees a right for same-sex couples to enter into marriage. Note that this is marriage in the full traditional sense, stricto sensu, not any form of civil partnership offering a lesser extent of rights.
The applicants, Mr Horst Michael Schalk and Mr Johann Franz Kopf, brought their case at a time when Austrian law offered no possibility for them to formalise their relationship. That has changed as of 1 January this year, since when they can register a form of civil partnership, much like in many other European states. But that is not what they want.
Whatever may be the politics of this issue in Austria (and they are likely not to reach the heights of absurdity scaled by some opponents of gay marriage in the United States), there certainly are a few constructive difficulties with the applicants’ argument under the Convention. Continue reading
By Tobias Thienel
First off, my sincere apologies for being a bad blogger of late. But now, on to the day’s business:
The European Court of Human Rights today delivered its decision on the admissibility of Al-Saadoon and Mufdhi v United Kingdom. That case, of course, represents the continuation at Strasbourg of domestic proceedings; some readers may recall that I have previously discussed the English judgments and the actions of the UK Government in that case on this blog: see here (on the case in the High Court), here (on the Court of Appeal judgment) and here (on the case in general).
The case was – and, in a way, still is – about the transfer of two Iraqi men suspected of murder, who were originally held by the British Army in Iraq and were then due to be – and have now been – transferred to the Iraqis for trial. The two men originally challenged their upcoming transfer under the ECHR, arguing that they would, if transferred, be ill-treated in prison, sentenced to death and executed.
Much to my dismay, the English courts had held that the European Convention did not apply, because the UK was bound in (other) international law to hand over the two men to the Iraqis. The issue, then, is whether a conflict between the ECHR and other international law rules out the application of the Convention. The English courts, by somewhat different routes, held that it did. Marko Milanovic argued that it did not; so did I.
The European Court has now knocked the theory from the English judgments on the head. A good thing, too. The application of the two men – who, unfortunately, have by now been transferred, in violation of an interim measure from the Court – has been declared admissible (at least for the most part; a complaint about expected ill-treatment in prison is inadmissible for failure to exhaust domestic remedies).
HT: Marko Milanovic at EJIL:Talk, who offers a somewhat fuller – and excellent – discussion of the case.
By Tobias Thienel
A few weeks ago, I reported on this blog – with some dismay – that the British Army in Iraq had unlawfully transferred two men to the Iraqi High Tribunal. In so doing, the UK not only violated its obligation not to transfer persons where they may be sentenced to death and executed after transfer. It also acted directly contrary to an interim measure indicated by the European Court of Human Rights.
I have now come across the UK’s official reasons for doing so. The statements do not make for happy reading. It might have been understandable if the European Court’s order had simply not reached the relevant Army unit in time for the transfer to be stopped. But that was not the operative reason. Continue reading
By Tobias Thienel
The Grand Chamber of the European Court of Human Rights yesterday decided the case of A and Others v United Kingdom. The applicants, all foreigners resident in Britain, had been detained under anti-terrorism legislation, not after having been found guilty of any crime, but because the authorities suspected them of being terrorists, and could not expel them to their home countries.
The case has already made big headlines, and drawn the attention of many international human rights lawyers, in the domestic courts. As the last court of appeal, the House of Lords (in A and Others v Secretary of State for the Home Department (No 1) [2004] UKHL 56, [2005] 2 AC 68) had decided in favour of the applicants. It held that the derogation from Article 5 ECHR entered by the UK under the Convention’s Article 15 had been unlawful. It therefore declared that the legislation authorising the applicants’ detention was unlawful. The domestic courts could not, however, strike down this legislation.
Nor were the applicants immediately released. That being so, the applicants had to take their case to Strasbourg (see para 158 of the Grand Chamber’s judgment). Curiously, the Government there attacked the view taken by its own highest court. In other words, it maintained again that its measures had always been lawful (even though that legislation is no longer in force).
The European Court therefore went through the whole case again.
By Tobias Thienel
A few days ago, I noted on this blog a recent case from the English High Court, which addressed the possibility that the British forces in Iraq might be prevented by the ECHR from handing over suspects to the Iraqi authorities for prosecution. The High Court had held at the time that the two claimants could not resist their transfer to the Iraqi High Tribunal, even though they did run a risk of being sentenced to death and executed. However, the Court held so only reluctantly, and only because it was bound by precedent – a precedent, moreover, which the High Court pretty much knew to be wrong.
The claimants’ hopes then rested on the Court of Appeal. But all such hopes were dashed when the Court of Appeal on 30 December 2008 dismissed the appeal. In addition, the Court of Appeal also refused leave to appeal to the House of Lords, and declined to extend the injunction against the appellants’ transfer to the Iraqi police. As Professor William A. Schabas and Dr Antoine Buyse report at their respective blogs, the appellants were then swiftly handed over to the Iraqis – this despite an interim measure indicated by the European Court of Human Rights.
The Court of Appeal today published its reasons for dismissing the appeal: R (Al-Saadoon) v Secretary of State for Defence [2009] EWCA Civ 7. Those reasons were, in broad outline: (a) the UK did not have jurisdiction over the appellants, so the ECHR did not apply, (b) even if it had done, the obligation not to extradite/transfer was displaced by the fact that the UK was bound to do so, (c) there was no (regional) customary international law in Europe against the transfer of persons to a risk of suffering the death penalty, (d) the execution of a sentence of death by hanging did not amount to a crime against humanity.
There’s really only one word for that: Nonsense! Continue reading
By Tobias Thienel
In a case that has stirred emotions when it first came to the fore, the European Court of Human Rights today had occasion to stress the strong public interest, reflected in domestic as in international law, in the protection of the maritime environment. To the ECtHR, that case is known as Mangouras v Spain; to the rest of the world it is part of the drama resulting from the sinking of the Prestige off Galicia, Spain, in November 2002.
The applicant, Mr Mangouras, had been the captain of the Prestige, and was promptly arrested on being taken to the Spanish shore. A Spanish judge then fixed the amount of bail at a somewhat steep 3,000,000 €. An insurance company came up with the sum fixed, and Mr Mangouras was released from jail after 83 days. That, basically, is what the case in the European Court was about; the applicant argued that the amount of bail was much too high, violating Article 5(3) ECHR (see e.g. Iwanczuk v Poland, para 66).
The case-law mandated that the Court consider the temptation for an accused to absent himself from the proceedings, and whether the amount of bail was proportionate to the aim of counteracting that temptation, thus securing the indictee’s presence at trial. The nature of the offence with which the accused would be charged was therefore relevant, going to the strength of the possible desire to abscond. Against that background, the Court said (my translation; French original after the fold):
"The Court cannot ignore the rising and legitimate concern existing at the European and the international level with regard to crimes against the environment. It notes in this regard the powers and obligations of States concerning maritime pollution and the unanimous interest of States as well as of European and international organisations in identifying those responsible, securing their presence at court proceedings and in punishing them […]. The Court feels that it should take into account the individual circumstances of the case, that is to say, the specific breaches committed in the context of a ‘cascade of responsibilities’ peculiar to the law of the sea and, in particular, to attacks on the maritime environment, and that those circumstances distinguish this case from other cases in which the Court has been called upon to assess the duration of provisional detention."
By Tobias Thienel
The High Court in London has recently addressed an issue that has plagued not only the British contingent of Coalition forces in Iraq: to what extent does international human rights law prevent members of the coalition from cooperating with Iraqi authorities? More specifically, can it prevent Coalition forces from surrendering suspects to the appropriate Iraqi autorities for prosecution? Is it relevant that the member of the Coalition may be obliged to do this?