19 Regional human rights systems- Europe – II

Ms. Amit Jyoti Sandhu

Introduction

In this module, we continue with our discussion from the previous module on the role of European Court of Human Rights towards the development of the international human rights law in Europe. We shall be briefly discussing the following cases that look into human rights violations in different set of facts: Opuz versus Turkey, Khamila Isayeva versus Russia, El-Masri versus “the former Yugoslav Republic of Macedonia”, Selmouni versus France, Bayatyan versus Armenia, Alexandridis versus Greece, Nagla versus Latvia and Hirsi Jamaa and others versus Italy.

Opuz versus Turkey (9 June 2009)

A lady filed this case when her husband inflicted life-threatening violence against her and her mother, which resulted in the death of the latter but no appropriate action was taken by the Turkish judicial system. The incidents had included beatings, an attempt to run the two women down with a car that had left the mother seriously injured and an assault in which the applicant was stabbed seven times. The authorities had been aware of the perpetratorís history of violence. A few proceedings were initiated against the husband but he would be released in some time on one or the other ground.

This was the first judgment of the court on domestic violence where it found a violation of Articles 2 (right to life), 3 (prohibition of torture and ill-treatment) and 14 (prohibition of discrimination). The court held that the authorities failed to perform their positive obligation to protect the right to life of a person where there existed a real and immediate risk to her life from reasonably foreseeable criminal acts of a third party. Despite the pattern of violence and use of lethal weapons, the authorities had repeatedly dropped proceedings against the husband in order to avoid interfering in what they perceived to be a family matterî. The State failed in satisfying its positive obligations with regard to protection from domestic violence. The authorities could have ordered protective measures under the Family Protection Act or issued an injunction restraining the husband from contacting, communicating with or approaching the applicantís mother or entering defined areas but they had not displayed due diligence which resulted in the death of the applicantís mother. The criminal justice system of Turkey was found to be not deterrent enough.

Therefore, the Court noted that under the relevant rules and principles of international law accepted by the vast majority of States, a failure  even if unintentional  by the State to protect women against domestic violence breached their right to the equal protection of the law. The general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence against women. Condemning the overall unresponsiveness of the Turkish judicial system the Court awarded EUR 30,000 in respect of non-pecuniary damage to the applicant.

Khamila Isayeva versus Russia (15 November 2007)

The applicant had lodged applications with the Court complaining of the disappearance and death or presumed death of Mr Isayev during Russian military operations in Chechnya. Although criminal investigations had been launched, they were still pending several years later and there had been no prosecutions. Following the communication of the case, the Government were repeatedly asked for copies of the criminal investigation files, however they declined to produce certain documents on the grounds that their disclosure would violate Article 161 of the Russian Code of Criminal Procedure as the documents concerned contained information of a military nature or personal data on witnesses and other participants in the criminal proceedings.

The Court found violations of Articles 2 (substantive and procedural limbs), 3, 5 and 13 (in conjunction with Article 2). The Court held that the State’s obligation to protect the right to life and in respect of the failure to conduct an effective investigation into the circumstances in which Mr Sultan Isayev disappeared is a violation of the Convention. The applicant was awarded sums in respect of pecuniary and non-pecuniary damage.

El-Masri versus the former Yugoslav Republic of Macedonia (13 December 2012)

A German national of Lebanese origin alleged that on 31†December 2003 he boarded a bus for Skopje. At the Macedonian border a suspicion arose as to the validity of his passport. He was questioned by the Macedonian authorities about possible ties with several Islamic organisations and groups. He was arrested and tortured in Skopje then transferred by the CIA to a secret place of detention in Afghanistan where he was held for five months. On 29 May 2004 the applicant was returned to Germany via Albania and in October 2008 the applicant lodged a criminal complaint with the Skopje public prosecutorís office, but this was rejected as being unsubstantiated.

The Court found violations of Articles 3, 5, 8 and 13 of the Convention and held that ìthe former Yugoslav Republic of Macedonia had been responsible for his torture and ill-treatment both in the country itself and after his transfer to the US authorities in the context of an extrajudicial ìrenditionî. It held that the State had not conducted an effective investigation into the applicantís allegations of ill-treatment and therefore his detention was arbitrary. The Court award the applicant EUR 60,000 in respect of non-pecuniary damage under Article 41 of the Convention.

Selmouni versus France (28 July 1999)

Ahmed Selmouni complained of assaults on him while in police custody in Bobigny from 25 to 29 November 1991. A judicial investigation was opened in the Bobigny where the judge transferred it to a judge attached to the Versailles tribunal de grande instance, in the interests of the proper administration of justice. The court sentenced the guilty police officers. The applicant complained that, on account of ill-treatment which he alleged he had suffered during police custody and the length of the proceedings relating to his criminal complaint and application to join the proceedings as a civil party, there had been a violation of Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman and degrading treatment, and of Article 6 & 1 of the Convention, which guarantees the right to a decision on civil rights and obligations within a reasonable time.

The Court found elements which were sufficiently serious to render such treatment inhuman and degrading. The Court also observed that the applicant had been subjected to a certain number of acts which would have been heinous and humiliating for anyone, irrespective of their condition. The Court noted that these events had not been confined to any one period of police custody during which without this in any way justifying them heightened tension and emotions might have led to such excesses. It had been clearly established that Mr Selmouni had endured repeated and sustained assaults over a number of days of questioning and such conduct had to be regarded as acts of torture for the purposes of Article 3 of the Convention. The Court considered that the ëreasonable timeí prescribed by Article 6 & 1 had been exceeded as the proceedings were still pending in appeal and already six years and seven months had lapsed.

The Court awarded damages to the applicant and emphasized the need for breaches of the fundamental values of democratic societies to be assessed ever more stringently with the rising level of expectation for protection of human rights and fundamental freedoms.

Bayatyan versus Armenia (7 July 2011)

This case concerned a Jehovahís Witness who had been declared fit for military service, when he informed the authorities that he would not serve in the military on conscientious grounds but was ready to carry out alternative civil service. On January 25, 2001 when Armenia joined the Council of Europe, it took an to introduce civilian service as an alternative to compulsory military service within three years and to pardon all conscientious objectors sentenced to imprisonment.

In May 2001, when Jehovahís Witness, the applicant here, was summoned to commence his military service he failed to report for duty and temporarily left his home for fear of being forcibly taken to the military. He was charged with draft evasion and in 2002 was sentenced to two and a half years imprisonment. He was released on parole after serving about ten and a half months of his sentence. At the material time in Armenia there was no law offering alternative civil service for conscientious objectors. This was the first case under Article 9 (freedom of thought, conscience and religion) of the Convention before the Court where it examined its applicability to conscientious objectors.

When the applicant was released from imprisonment, Armenia had recognized the right to conscientious objection. On deciding the applicability of Article 9 in this situation, the Court held that although Article 9 did not explicitly refer to a right to conscientious objection, opposition to military service motivated by a serious and insurmountable conflict between the obligation to serve in the army and an individualís conscience or deeply and genuinely held religious or other beliefs constituted a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article†9. The applicant in this case did not report for military service owing to his religious manifestations. Imposition of criminal sanctions in such situation cannot be regarded as necessary for a democratic society. Lastly, applicantís prosecution and conviction by the authorities in Armenia only took place after Armenia had acceded to the Council of Europe. Therefore, Armenia was in violation of Article 9 and was asked to pay EUR 10,000 in respect of nonpecuniary damage to the applicant.

Alexandridis versus Greece (21 February 2008)

When the applicant was admitted to practice as a lawyer at a court of first instance, he had to take an oath of office which according to the national legislation was a religious oath. He was obliged to declare that he was an atheist or that his religion did not permit him to take an oath. The court secretariat provided him with a form containing a standard text of the oath, which he submitted to the President of the court. When the President asked him to place his right hand on the bible to take the oath, he had informed her that he was not an Orthodox Christian and therefore wanted to make a solemn declaration, which he had been allowed to do. The Greek Government stated that there were two different forms, one for the religious oath and the other for a solemn declaration. The applicant had not asked for the correct form and had filled out the form used for the religious oath. The Government mentioned that the applicant had indeed taken the form for religious oaths with him when he appeared before the president of the court, but had then requested permission to make a solemn declaration. He had made no attempt to have the document rectified subsequently.

The Court held that in this case the procedure for taking oaths reflected a presumption that lawyers going before the court were Orthodox Christians and wished to take the religious oath. Hence, when the applicant went to the court, he had been obliged to declare that he was not an Orthodox Christian and, hence, to reveal in part his religious beliefs in order to be allowed to make a solemn declaration. The State authorities did not have the right to intervene in the sphere of individual conscience and to ascertain individuals religious beliefs or oblige them to reveal their beliefs concerning spiritual matters. From the given evidence, the Court was unable to conclude that two forms had existed at the material time. There was a violation of Article 9 because of the fact that the applicant had had to reveal to the court that he was not an Orthodox Christian and that he wanted to make a solemn declaration rather than take the religious oath, had interfered with his freedom not to have to manifest his religious beliefs.

Nagla versus Latvia (16 July 2013)

In this case, the applicant worked for the national television broadcaster where she produced and hosted a weekly investigative news programme De Facto. In February 2010, she informed the public of an information leak from the State Revenue Service (VID) database on the basis of the information received from an anonymous source. The VID initiated criminal proceedings against the source, called Neo, as he had published information concerning the salaries of state officials in various public institutions. The investigating police interviewed the applicant as a witness but she refused to disclose the identity of her source. The investigating police searched the applicantís house and seized a laptop, an external hard drive, a memory card, and four flash drives on the basis of a search warrant.

The Court found a violation of Article 10 (Freedom of expression) emphasizing that the right of journalists not to disclose their sources could not be considered a privilege, dependent on the lawfulness or unlawfulness of their sources, but rather as an intrinsic part of the right to information. The Court found that there had been interference with the applicantís freedom to receive and impart information which interference was prescribed by law and pursued the aims of preventing disorder or crime and of protecting the rights of others. The search and seizure warrant on the basis of which authorities exercised their powers was rather vaguely drafted. The right of journalists not to disclose their sources was important as it kept the public informed about the salaries paid in the public sector at a time of economic crisis and about the database of the VID. While proceeding with the operation the authorities did not examine the proportionality between the public interest in the investigation and the protection of the journalistís freedom of expression. Such urgent search warrant could be carried out ëìto prevent the destruction, concealment or damaging of evidence. Applicant was only a witness with respect to the criminal proceedings against the source. Therefore, authorities had failed to give ìrelevant and sufficientî reasons for the interference complained of and were asked to pay EUR 10,000 in respect of non-pecuniary damage.

Hirsi Jamaa and others versus Italy (23 February 2012)

A group of migrants, eleven Somalis and thirteen Eritreans nationals coming from Libya as part of a group of about two hundred individuals filed an application before the European Court. The group boarded three vessels with the aim of reaching the Italian coast but while were within the Maltese Search and Rescue Region of responsibility they were intercepted by ships from the Italian Revenue Police and the Coastguard. Then they were transferred onto Italian military ships and returned to Tripoli. During the voyage no efforts were made to identify the group and they were not informed about their destination but were finally forcefully handed over to the Libyan authorities. Two of the applicants died in unknown circumstances after the events in question and fourteen of the applicants were granted refugee status by the Office of the High Commissioner for Refugees in Tripoli between June and October 2009.

The Court held that despite the complex migrant situation, States are not absolved of their obligation not to remove an individual at risk of being subjected to treatment in breach of Article†3 in the receiving country. The Court concluded that by transferring the applicants to Libya, the Italian authorities had, in full knowledge of the facts, exposed them to treatment prescribed by the Convention. While assessing the risk of ill-treatment in the applicantís countries of origin, the Court held that when the applicants were transferred to Libya, the Italian authorities had or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their respective countries of origin.

The Court for the first time held that there was a breach of Article 4 of Protocol No. 4 to the European Convention to a case involving the removal of aliens to a third State carried out outside national territory. The transfer of the migrants to Libya without any examination of each individual situation had exposed them to the risk of ill-treatment and had constituted a collective expulsion under the said provision of the convention. The Court held that the Italian Government had to take all possible steps to obtain assurances from the Libyan authorities that the applicants would not be subjected to treatment incompatible with Article†3 of the Convention or arbitrarily repatriated.

Conclusion

We learnt in this and the previous module that the Council of Europe established the European Convention on Human Rights which is the supreme convention in Europe protecting individuals’ fundamental rights and freedoms. The Convention sets up the European Court of Human Rights that has effectively given decisions in a lot of cases, as discussed in this module and the previous modules. The cases discussed above reflect on the application and interpretation of various provisions of the European Convention in cases of human rights violations.

Reference

1. Leading Cases – ECHR, Venice Commission, Council of Europe
2. Rantsev versus Cyprus and Russia (7 January 2010)
3. Siliadin versus France (26 July 2005)
4. Fadeyeva versus Russia (9 June 2005)
5. Iglesias Gil and A.U.I. versus. Spain (29 April 2003)
6. Sejdi and Finci versus Bosnia and Herzegovina (22 December 2009)
7. Assanidz versus Georgia (8 April 2004)
8. Internet: case-law of the European Court of Human Rights, Council of Europe
9. The European Court of Human Rights and Its Recent Case Law, Jean-Paul Costa
10. The ECHR in 50 questions, Council of Europe.