Evidence gathered from open-source investigations (OSI) is being increasingly relied upon in human rights litigation before a range of domestic, regional and international courts and tribunals.

Open-source intelligence (OSINT) refers to information obtained from publicly available sources such as social media, online forums and satellite imagery, and subsequently independently verified.

EHRAC’s own journey in OSI began with the case of Ponomarenko and others v Ukraine and Russia, when we commissioned digital investigations agency Forensic Architecture to gather and present evidence of Russian military presence in and around Ilovaisk in August 2014.

Forensic Architecture created an interactive online ‘Platform’, presenting information identified and verified using OSI, which EHRAC relied on as evidence when representing 25 applicants before the European Court of Human Rights. This was the first time that evidence of this type had been submitted to the Court.

OSINT can be a highly effective method of complementing and corroborating other types of evidence, but where should lawyers interested in using OSI in their work start, and what are some of the best techniques and tools to use?

We interviewed Alexa Koenig, Executive Director of the Human Rights Center at Berkeley Law School, and director of the centre’s Technology and Human Rights programme, and Sam Dubberley, head of Digital Investigations at Human Rights Watch, about getting started using OSI in litigation and some of the key challenges and risks to look out for.

What are some of the pros and cons of using OSI as evidence in litigation?

There are both pros and cons to using open source information as evidence in litigation. A significant pro is its ability to complement more traditional testimonial, physical and documentary evidence. Incorporating such digital data allows for triangulation and corroboration of survivors’ testimonies.

Perhaps one of the greatest pros is how it can strengthen investigation planning, by helping investigators better understand the information that is available to them, and helping them identify potential evidence that might exist (including by providing clues to potential eyewitnesses, physical evidence, etc.). OSI can also help lawyers identify people who may have relevant perspectives and experiences that may not have traditionally been on their radar.

Cons include the relative lack of training that legal investigators, lawyers and judges receive in open source investigation methods. There aren’t a lot of formal training opportunities in law schools or elsewhere. Another con is the sometimes unexpected psychological toll of dealing with large quantities of graphic imagery related to atrocities that give rise to legal claims. While really important safeguards have been created to minimise the psychological harm that can come from watching thousands of videos of horrific acts, most lawyers and investigators never receive the psychological, security or ethics training that are so important to minimising potential harms to themselves, as well as victims and others implicated in the work.

How can a lawyer get started with using OSI in their work?

There are a few introductory routes a lawyer can take. One is to read both offline and online materials. A resource we created with Daragh Murray is the book Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation and Accountability (Oxford University Press 2020). The book is an introduction to open source investigation methods, as well as OSI’s history, and relevant ethical and security considerations. It includes contributions from some of the best open source practitioners and academics in the world.

Lawyers can also familiarise themselves with the Berkeley Protocol on Digital Open Source Investigations, which lays a foundation for the use of open source information in legal practice and includes helpful templates for investigation planning and other processes. There are also a tonne of free online resources, including tutorials from digital investigator Ben Strick, Amnesty International, and Bellingcat.

Finally, several organisations provide formal, paid classes. UC Berkeley’s Human Rights Center partners with Institute for International Criminal Investigations in The Hague on a five day introductory course aimed at legal practitioners, as well as a five day advanced course that will launch this spring. Bellingcat offers trainings aimed at a range of practitioners. Michael Bazzell has a particularly famous course taken by a lot of people in law enforcement and other areas of practice.

What are some of the best tools and techniques to employ in OSI?

It’s really important to start with principles, like those included in the Berkeley Protocol, many of which are important for any form of research. Those principles can help with understanding and identifying which tools and techniques will be most helpful to and appropriate for your investigation.

I also strongly recommend Annex V in the Protocol, which lists a number of considerations for adopting a new tool or technique, such as who owns it, who will have access to collected data, and the product’s likely lifespan. That said, InVid is one of our favourites – it’s sort of a Swiss army knife of OSINT in that it allows you to easily conduct a technical and content analysis of visual material, such as photos and videos, whether you have a hard drive of those items or find them online.

As for methods, it’s important to build online search skills and verification skills, and to understand how access and human and machine biases might interfere with an objective search. On the team at Berkeley, Brian Nguyen has spent a lot of time exploring tools that help to automate capture and analysis of large datasets from social media, such as pinpoint. Really helpful are the many dashboards that open source investigators have created, which compile a number of useful tools (most free) in one place. An example includes that put out by OSINT combine. Finally, the team at Berkeley is a huge fan of Hunchly, which allows us to forensically capture every search we make during an online investigation.

What are some of the main challenges and risks when working with open source material?

There are challenges and risks that come at every link in the chain of information, from capture to courtroom. First, did those close to where relevant events occurred have the training to know what kinds of visual information would be most helpful to legal investigators, and capture it? This means not only capturing the killing or the bomb falling, for example, but surrounding details that can help investigators confirm the date, time and location of the event. Witness’ Video as Evidence field guide can be really helpful on that front.

Second, if those who capture the content share it through social media or other technical means, what is the likelihood that information will get into the hands of legal actors, if legal accountability is a goal? Will the content be removed by platforms before it’s ever seen? Do investigators know the slang and hashtags that are affiliated with the kinds of information that will be helpful to their cases?

How people tag and talk about events online is really different from offline communications – and can radically vary from platform to platform. Will the information be preserved with all of the contextual information that will strengthen its use for courts? And then do all actors at every link in the chain understand the digital, physical, psychosocial and legal risks of sharing, finding, capturing, and using that data?

What does the future look like for OSI in the context of human rights?

I suspect that an increasing number of universities will either bring on some form of open source investigation lab, or at least incorporate digital open source research methods into their curricula. We’ll probably see more and more information shared over encrypted channels relative to social media sites. We may also see the emergence of a conflict agnostic global repository for digital open source content – one that allows for the long-term preservation of short-lasting digital content, and that centralises the process of finding and verifying digital data for court purposes.

We will also see an increasing amount of OSI make its way into investigation planning, investigations, and ultimately courtrooms. Unfortunately, we will also likely see major resource disparities that affect what lawyers are able to do with that data. I think we’ll also see increasing diversification of who is conducting open source investigations and who is recognised for doing the work. This diversification will span gender and geography, age, race, ethnicity and more.

Finally, I suspect we’ll see increasing use of object detection and natural language processing to help deal with the scale problem, helping to bring the amount of digital data that legal investigators have to comb through down to human levels.

The post Q&A: Using open source investigations in human rights litigation appeared first on European Human Rights Advocacy Centre (EHRAC).

Should the European Court of Human Rights (‘ECtHR’ or ‘the Court’) dispose of a complaint by resorting to judicial policy reasoning to prevent judicial overload? A recent decision of the Court – Turan and Others v Turkey – handed down on 23 November 2021, brings this issue into sharp focus, not due to what the Court found by way of violations, but by what it explicitly chose not to find. It did so openly and explicitly for reasons of pragmatism, particularly to avoid judicial overload. Was it right to do so? And, even if not supported by principle, was this the only real option available to the Court? To address these questions, this piece first outlines the opinion of the majority, but more critically sets out in detail the robust and well-reasoned minority opinions that side with the majority only through gritted teeth. Like the minority opinions, I concede that the decision based on judicial policy was, on balance, one of the few options left to it, but suggest that only broader systemic reforms can adequately address this issue of judicial overload by repetitive applications.

Background and the Majority Decision

The case arose out of the arrest and pre-trial detention of judges and prosecutors in Turkey in the aftermath of the attempted coup of 15 July 2016. These detentions – as well as thousands of others – led to a veritable flood of applications to the Court. The Court, in this case, joined 427 applications. This context – the sheer number of applicants both in this case and, more broadly, concerning post-coup arrest and pre-trial detentions – is highly relevant.

The applicants, who were all judges or prosecutors at different types or levels of the domestic courts,  were arrested and placed in pre-trial detention under different legislative regimes, depending on whether they were (i) ordinary judges and prosecutors, or (ii) members of the Court of Cassation and Supreme Administrative Court. Despite the different regimes, the justification for detention provided by authorities was the same: that the applicants were discovered in flagrante dilicto (i.e. during the act of wrongdoing). As to what wrongdoing they were accused of, domestic courts have made various interpretations, but essentially they relate to continuing offences of membership of  the FETÖ/PDY organisation (alleged to be behind the coup), which was a criminal offence, or by strained reasoning that they were part (and continued to be part) of the coup attempt itself by virtue of this alleged (and unproved) membership.

The Court found that, whist the applicants were arrested and deprived of liberty under procedures prescribed by law, the domestic interpretation of the notion of in flagrante dilicto was unlawful, as it was unreasonable and breached the principles of legal certainty, thus not enjoying the ‘quality of law’ required by Article 5(1) of the Convention. This violation of Article 5(1) was unsurprising, given that the Court had already found identical violations in previous Turkish cases (Bas v Turkey; Alparslan Altan v Turkey).

However, the remarkable aspect of the decision concerns further complaints made by various applicants under other sub-paragraphs of Article 5. In response to such complaints (at paragraph 98, which, due to its importance will be repeated in full):

‘The Court has found above that the applicants’ detention was not prescribed by law, which runs counter to the fundamental principle of the rule of law and to the purpose of Article 5 to protect every individual from arbitrariness. Having regard to the significance and implications of this finding, which goes to the heart of the protection afforded under Article 5 and entails a violation of one of the core rights guaranteed by the Convention, and to the accumulation of thousands of similar applications on its docket concerning detentions in the aftermath of the attempted coup d’état in Turkey, which puts a considerable strain on its limited resources, the Court considers – as a matter of judicial policy – that it is justified in these compelling circumstances to dispense with the separate examination of the admissibility and merits of each remaining complaint raised by each individual applicant under Article 5. The Court also points out in this connection that an individualised examination of the remaining complaints brought by each applicant would significantly delay the processing of these cases, without a commensurate benefit to the applicants or contribution to the development of the case-law. It notes furthermore that it has already addressed the legal issues raised by these complaints for the most part (see, in particular, Selahattin Demirtaş (no 2), Alparslan Altan and Baş, all cited above; Atilla Taş v. Turkey, no. 72/17, 19 January 2021). It is precisely within this exceptional context that the Court, guided by the overriding interest to ensure the long-term effectiveness of the Convention system, which is under threat by the constantly growing inflow of applications (see, mutatis mutandis, Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, §§ 111, 119 et seq., 157 and 210, 12 October 2017), decides not to examine the applicants’ remaining complaints under Article 5.’

It is this paragraph, and the later operative provision that ‘there is no need’ therefore to examine the applicants’ remaining complaints under Article 5, that caused consternation from the concurring and partly dissenting judgments.

Minority Opinions

Leaving aside the partly concurring opinion of the Turkish Judge Yüksel (which relates to a disagreement on the lawfulness of the arrests and detention), the judgment contains two important minority opinions. The first is a concurring opinion by the Finnish Judge Koskelo, joined by Judge Ranzoni, and the second is a (particularly lengthy) partly dissenting opinion by the Lithuanian Judge Kūris, who dissented on the operative provision that there was no need to examine the further complaints. The two opinions cover essentially the same territory, namely whether this disposal of the complaints is comparable to other situations where the Court does not find violations (spoiler alert: it isn’t), and, if not, whether it was nevertheless justifiable (spoiler alert: it was). (They also cover other more minor issues, but these will not be considered here.)

As outlined by the minority opinions, this case was not analogous to other situations where the Court finds no Convention violations, including under the admissibility criteria (as the complaints were found admissible). It was also not analogous to the pilot judgment procedure, where one individual case is selected for review of systemic and structural violations underpinning it, and other cases are adjourned pending implementation of general measures to address the underlying issue. In the present instance, this case was not a pilot judgment. Moreover, Judge Koskelo found that there was no further domestic action that could have resolved the Article 5 issues – that is, a pilot judgment could not, in any event, have resolved the matter.

Nor was this case like those situations where the Court finds violation of some complained Articles of the Convention, but not others. These include:

1. Cases where there is factual overlap between interrelated complaints, such that the Court need not re-examine the case from different angles. In these instances, it is jurisprudentially defensible (although from a practitioner’s standpoint, extremely disappointing) that the Court may find ‘no need to examine’ the overlapping claim. Both minority opinions found that in the case at hand there could not have been one of these overlapping situations, given that the other Article 5 complaints were ‘at the very core of one of the core rights’.
2. Politically sensitive cases where the Court finds no need to examine Article 18 complaints, despite evidence pointing towards a ’hidden agenda’ behind the violations. This was not relevant for the given case, given no Article 18 complaints were made.
3. Cases where the Court decides not to examine certain violations, without giving satisfactory reasoning or a principled justification for doing so, including the Câmpeanu formula that the Court will only examine the ‘main’ legal questions. This is not the case in Turan, as clearly the Court did give its reasoning, whether one agrees with it or not.

The closest this situation could be related to, and which the Court cites as supporting precedent for its decision to dispose of the complaints, is the 2017 case Burmych and Others v Ukraine (helpfully explained and analysed on this blog here and here), in which the Court struck out 12,148 repetitive cases of Ukraine’s failure to enforce final judgments. The similarity between the cases is that the Court made its decision based on pragmatism – the Court in Burmych holding that to continue to decide these cases would ‘affect the Court’s ability to fulfil its mission […] in relation to other meritorious applications’ (para 150) and ‘would place a significant burden on its own resources’ (para 174). However, as noted by Judge Kūris, the situations are not analogous in outcome: In Burmych, the cases were struck out pending continuing (albeit ineffective) supervision by the Committee of Ministers as a result of the earlier pilot judgment in Ivanov. Thus in Burmych there was some potential prospect of redress. In the present case, the non-Art 5(1) complaints will never be addressed (although as conceded by Judge Kūris, unlike in Burmych, the present case offers limited actual redress due to the finding of an Article 5(1) violation and an award of just satisfaction). The only similarities between the cases, in Judge Kūris’ words are that ‘the Court has adopted it also under the duress of reality, in which it has been left with no other choice, if the long-term effectiveness of the Convention machinery is to be ensured.’

Given that this situation is therefore sui generis, what then swayed the minority opinions to side with the majority? For Judge Koskelo, it was for reasons of pragmatism: that given the limits of the Court to process these claims, it is the only real option available to it. She states:

‘The decision not to examine the applicants’ other complaints raised under Article 5 of the Convention thus has a critically novel quality. I have nonetheless arrived at the conclusion that the time has come to acknowledge the reality as it presents itself: if alleged violations occur on a large scale and the rights concerned are no longer protected through domestic remedies, even the international supervision entrusted to the Court reaches its practical limits. The fact that core rights are at stake renders the state of affairs particularly sad and serious but cannot in itself change it. In circumstances where it has become clear that the complaints cannot, and therefore will not, be processed within a reasonable time-frame, or without paralysing the Court’s activity more generally, it is better to make this impasse transparent rather than maintain illusions about the situation. Any further conclusions remain for other bodies to consider.’ (para 116)

Judge Kūris undertook a much more nuanced and soul-searching analysis. He took as his starting position the principled position that in an ideal world, the Court should not substitute legal reasoning with judicial policy. But, in his words ‘the world is not a perfect place.’ (para 8). As a result of the precedent set by the Burmych decision:

‘the Court’s resolve to leave certain complaints unexamined in principle can be substantiated – if not duly legally reasoned, then at least factually explained – by referring to judicial policy considerations pertaining to very exceptional circumstances occurring in the realm of real life, not in that of pure law. Such a course is, to put it mildly, not a neat one from the purely legal(istic) perspective. But now it is part of the Court’s case-law. Needless to say that the circumstances in which the Court’s recourse to this method is defensible must be exceptional, indeed extraordinary.’ (para 10)

Judge Kūris concedes that the present case was one where such an extraordinary course was justified:

‘The decision not to examine the lion’s share of the complaints is an acknowledgment of the limits to the Court’s capacity in the face of the massive influx of applications. The reference to “judicial policy” (paragraph 98) means that the non-examination of complaints is determined not by any tenets of any Articles of the Convention, but by such reality, against which usual legal institutional and procedural mechanisms are helpless, unless the Court allows itself the dubious luxury of extending the examination of these complaints for at least a decade (but more likely for even longer) or (another most unattractive alternative) to postpone the examination of other meritorious complaints, at least those against the same State.

In that context it should be mentioned that today there are thousands of cases pending against Turkey which concern detentions and criminal convictions handed down in the aftermath of the 2016 attempted coup d’état in that State. Every week their number increases by scores. The Court is in fact inundated with cases related to those events. In addition to that tsunami, there is a yet larger pool of pending unrelated cases against Turkey.In such circumstances, the decision not to examine the complaints that consume the most time, effort and other resources is the only pragmatic way out. From the purely legal(istic) perspective, it is not a satisfactory one, and not easily defensible. But it can be explained by reference to reality.’ (paras 34-35)

Whilst Judge Kūris concurred with the majority in principle, he dissents because the justification provided for to dispose of the complaints (which he agrees with) should not have led to the operative provision that there was therefore ‘no need to examine’ the complaints.

Lastly (at least on this point), Judge Kūris reflects on the consequences of this development, that it is

‘a signal that a member State can escape responsibility for violating the Convention en masse, since the Court may be flooded with complaints against that State to such an extent that it becomes unable to cope with them and decides not to examine them. To be frank: if a regime decides to go rogue, it should do it in a big way. And if responsibility can be escaped by “doing it big”, why not give it a try?’ (para 38)

Whilst he is comforted that this case is exceptional, there is no reason why it may not become unexceptional. To this, Judge Kūris implores that ‘a remedy or safeguard, or counterbalance must be found – and applied. Needless to say, that remedy or safeguard, or counterbalance, cannot and must not be judicial. To that effect, I can but agree with Judge Koskelo that ‘[a]ny further conclusions remain for other bodies to consider’.

Comment

That the European Court of Human Rights decides an outcome for reasons of judicial policy is nothing new. Many of the examples outlined above, where the Court chooses not to find violations, are all implicit or explicit instances of judicial policymaking, either to reduce the caseload burden on the Court by only addressing the bare minimum complaints to dispose of the matter, or to avoid finding violations on politically sensitive issues. But in those cases, the Court justifies its decision (more or less convincingly) by jurisprudential considerations (issue overlap, main legal issues, etc), rather than extra-judicial considerations, such as judicial overload. Other methods the Court relies upon to not find violations (particularly pilot judgments) are all authorised under the Convention or the Rules of Court. Even in Burmych, even when the Court struck out the cases for reasons of judicial overload, it contorted itself into justifying its decision with respect to the respective functions of the Court and the Committee of Ministers vis-à-vis cases arising post-pilot judgments (again, whether this is convincing or will bring any justice is another question). The novelty of this case is that pragmatics alone largely justified the Court’s decision.

Perhaps the Court should be lauded at least for its candour and transparency, something missing from its sometimes Delphic practices. However, by justifying its disposal of the complaints by reason of the impossibility of its situation, the Court has exposed itself to charges of injustice, illegitimacy, and of failure to discharge its core responsibility of ensuring the right to individual petition.

Rather than lay the blame for this extraordinary decision on the Court itself, we should instead view this development within the context of broader attempts by the Council of Europe, its member States and the Court itself to reform the Convention system to deal with the continued issue of the backlog of cases, particularly the known failure to adequately deal with repetitive cases.

Serious attention to address the judicial backlog began in 2010, in the now-ended Interlaken Process. The Interlaken Declaration established an Action Plan to reform the Convention system to reduce its backlog. Since then, many processes have been put in place, generally to good effect. Processes introduced by the Court to reduce repetitive cases include the pilot judgment procedure (mentioned above) in 2011, and the well-established case law (WECL) procedure in 2014 to streamline the case management and to allow a judicial committee of three judges to swiftly issue shorter judgments on repetitive cases.

And yet, as identified by the Council of Europe Steering Committee for Human Rights (CDDH) in 2019, despite these measures, the backlog of repetitive cases before the Court remains a serious problem. Five, largely repetitive, subject matters account for 54% of applications pending before all judicial formations of the Court: conditions of detention, non-enforcement of domestic courts’ judgments, length of proceedings before the domestic courts, cases arising out of conflict between states, and cases arising out of the situation in Turkey in July 2016. The latter (which, of course, was the subject of this case) gets its own category as they alone represent 6% of the total number of cases pending. It is the sheer number of these repetitive cases that has placed significant stress on the functioning of the Court. It is clear that the current tools – mainly pilot judgments and the WECL procedure – are not adequately stemming this tide of repetitive applications.

So what should the Court do? The CDDH recommended in 2019 that ‘[t]he Court should … continue striving to optimise its working methods in order to handle this group of cases. It is important to guarantee, at the same time, that the parties’ rights in the proceedings are not curtailed by the simplified procedures and that the quality of the Court’s judgments and decisions is maintained.’ (para 113)

Of course, there is a balance to be struck here: there is only so much ‘optimising’ of working methods before the Court inevitably curtails the parties’ rights. Arguably in this case, the proper balance was not struck, and as argued by Başak Çalı here, a chamber judgment, where the rights of hundreds of applicants is at stake, is not the proper place to be having this urgent conversation about the survival of the Court. But perhaps in the face of these repetitive cases the Court can no longer strike the right balance, and apart from the soft diplomacy that the Court can leverage at the Council of Europe, a judgment is one of the few places where its cries can be heard. The potential injustice that the Court has resorted to in this case shows, in effect, that it has run out of tools to properly adjudicate these repetitive cases, particularly in cases where the pilot judgment process is not applicable, or where, as in Burmych, the pilot judgment system has arguably failed. In the present case, the Court was left with little option but dispose of the complaints in the way it did.

The conclusion drawn by the CDDH is that ‘further efforts are necessary by all actors in the Convention system’ to stem the tide of repetitive applications (para 232, emphasis added). This is correct: responsibility to address repetitive cases cannot lie with the Court alone. It is incumbent on the Committee of Ministers to better assist States to implement judgments disclosing systemic issues, and for States to promptly provide effective general remedies to resolve the systemic problems (CDDH para 114). In Judge Koskelo’s words, the solution is not for the Court, but for ‘other bodies to consider’. Until then, we may have to tolerate the injustice of decisions such as those found in Turan. Of course, how do we deal with those hypothetical (or some might say real) ‘rogue’ States that are, in Judge Kūris’ words, ‘doing it big’, and overloading the Convention system with cases against them? The only solutions are real political consequences for massive and systemic violations, and more robust consequences for failure to execute judgments. In waiting for these, I am not holding my breath.

The post Turan and Others v Turkey and the Limits of Judicial Policy to Address Judicial Overload appeared first on European Human Rights Advocacy Centre (EHRAC).

By Dr. Ramute Remezaite, Senior Legal Consultant, European Human Rights Advocacy Centre; originally published in Strasbourg Observers, January 21, 2022.

Introduction

Article 18 of the European Convention on Human Rights (the Convention), prohibiting the Council of Europe member states’ acting in bad faith, has been put under the spotlight by litigators and the Court in recent years, exposing ulterior practices by states. Azerbaijan’s particularly repressive context for civil society and the political opposition, involving multiple tactics by the authorities, has been successfully challenged before the Court by litigators such as the European Human Rights Advocacy Centre (EHRAC), which systematically employed Article 18 of the Convention as a strategy to address the persecution of Azerbaijani critical voices. Such consistent and comprehensive litigation in Azerbaijani cases has contributed to the Court gradually expanding its once very limited application of Article 18 to new protected groups and qualified rights. The unanimously adopted judgment in the case of Democracy and Human Rights Resource Centre and Mustafayev v Azerbaijan concerning the imposition of travel bans on a human rights lawyer and the freezing of his personal bank accounts and those of his human rights NGO is the first case in which the Court established a violation of Article 18 in relation to the right to freedom of movement and the right to protection of property. The Court also indicated measures to the Government of Azerbaijan under Article 46 of the Convention, consistently with its other judgments relating to repression of human rights lawyers in Azerbaijan.

Background and facts of the case

This case concerns the freezing of bank accounts of an Azerbaijani human rights defender and lawyer, Asabali Mustafayev, and those of his NGO Democracy and Human Rights Resource Centre, and the imposition of two travel bans on him by the Azerbaijani authorities in 2014. Such restrictions were imposed on the applicants as a part of the wider criminal investigation launched by the Azerbaijani authorities against non-governmental organisations in the summer of 2014, in an unprecedented crackdown on civil society. The Prosecutor General opened a wide ranging criminal case under charges of abuse of power and forgery in connection with alleged irregularities in the financial activities of a number of human rights organisations in the country, following which several leading human rights defenders and NGO leaders, including Intigam Aliyev, Rasul Jafarov and Leyla Yunus, were arrested (see the Court’s judgments, for example, in Rasul Jafarov v Azerbaijan and Aliyev v Azerbaijan). Others, including Mr Mustafayev, were summoned for interrogations about their human rights activities and subjected to restrictions such as travel bans and the freezing of their bank accounts.

The first travel ban was imposed by the prosecuting authorities in 2014, which Mr Mustafayev learnt about a year later, in September 2015 when he attempted to take a flight to attend an event abroad. He was never provided with an official decision of the authorities and was only informed in July 2019 that the ban was lifted as ‘no longer necessary’. The second travel ban was imposed by a domestic court in October 2015, following a request from the tax authorities for his alleged failure to pay a tax debt resulting from an investigation by the tax authorities into the activities of the same human rights organisations that were subjected to criminal investigation. Furthermore, the applicants were never informed about the court hearing in which the decision was made to freeze their bank accounts, which Mr Mustafayev later learnt about when he went to his bank, and they were not served a copy of the decision. He later learnt from a court decision that the money transferred from the Council of Europe to him as legal aid for his work on cases before the European Court of Human Rights (the Court) was considered as the ‘object of a criminal offence’, which was used ‘as its instrument’.

The Court’s judgment

In this case, the Court was tasked to decide if the applicants’ rights to protection of property and Mr Mustafayev’s freedom of movement were violated, and assess if they had access to effective domestic remedies to challenge it. Furthermore, perhaps most importantly in Azerbaijan’s repressive context, the Court also had to decide if the domestic authorities had acted in bad faith and had any ulterior purposes behind such restrictions. The Court, sitting as a Chamber of 7 Judges, has reached a unanimous decision on these issues.

The Court ruled that the freezing of the bank accounts was unlawful, in violation of Article 1 of Protocol 1 of the Convention, in that Mr Mustafayev did not belong to the categories of persons to whom such a restriction could be applied in the criminal case, i.e. accused persons, as he was called for questioning as a witness. Similarly, the Court established that the prosecuting authorities acted unlawfully, in violation of Article 2 of Protocol 4 of the Convention, in imposing the first travel ban on the applicant in the absence of any judicial decision, and which the applicant has never been informed – a practice that the Court has also identified in the case of Mursaliyev and Others v Azerbaijan, relating to a group of other witnesses in the same criminal investigation, primarily independent journalists.

With regard to the second travel imposed on Mr Mustafayev, this time by a court decision, the Court recognised that a legal basis for such a restriction existed in the domestic law and that it could be justified for the purpose of securing the payment of taxes, i.e. for the maintenance of public order and protection of the rights of others. It, however, decided in the applicants’ case that the Government failed to demonstrate that the imposition of the travel ban pursued any of the legitimate aims.

Relatedly, the Court also found that the applicants had no effective domestic remedies to challenge either of the two violations, in violation of Article 13 of the Convention, as they were not informed of either the imposed restrictions or the relevant court proceedings and decisions made in any appropriate way.

Lastly, the Court unanimously established that the restrictions were imposed on the applicants for ulterior purposes, in violation of Article 18 of the Convention, with the aim ‘to punish the applicants for their activities in the area of human rights and to prevent them from continuing those activities’. Underlining that both the right to protection of property and the right to freedom of movement are qualified rights, subject to restrictions permitted under the Convention, the Court for the first time applied Article 18 of the Convention in conjunction with the two respective rights, expanding its application in its case law.

Commentary on the importance and the impact of the Court’s judgment

For the purposes of this blogpost, the commentary focuses on the significance of the application of Article 18 in this case and its expanded application to other qualified rights. It also discusses litigators’ tactics to systematically use Articles 18 and 46 of the Convention to address the repression of human rights defenders and the Court’s response, with regard to human rights lawyers in particular.

Expansion of Article 18 application

The Court’s rapidly growing novel utilisation of Article 18 to expose the states’ bad faith behaviour against human rights defenders and other critics has been extensively discussed in various commentaries (see here and here). This post focuses on the expansion of the application of Article 18 to the Convention’s qualified rights and its significance to the human rights community’s efforts to confront the Azerbaijani Government’s systemic crackdown and expose its ulterior purposes.

In the contexts of these cases, compared to the rare findings of Article 18 violations in the early 2000s, in the period from 2014 to 2021, the Court demonstrated a new willingness to apply Article 18 to expose the ‘bad faith’ actions of the states. It has found violations of Article 18 in 11 judgments concerning 18 individuals against Azerbaijan alone, starting with cases concerning arrest and detention (Article 5) and later expanding the application to other qualified rights, as discussed below.

To date, the Court has found a violation of Article 18 of the Convention in 23 judgments concerning 29 individuals in respect to Azerbaijan, Georgia, Moldova, Turkey, Russia, Ukraine and most recently Bulgaria. The first judgment establishing an Article 18 violation was made as early as 2004 against Russia, in relation to arrest and detention of Mr Gusinskiy, a majority shareholder of a private Russian media holding company. Between 2004-2013, Article 18 continued to be a rarely applied and little understood provision. The Court, applying a very strict burden of proof threshold for Article 18 violations, only found such violations in three cases against Ukraine and Moldova during this period, limited to arrest and pre-trial detention of political opposition members, primarily (Article 5). In the next decade, however, since 2014 to date, as the number of applications by litigators invoking Article 18 has drastically grown, the Court has shown a greater willingness to engage with Article 18 and applied it to political prosecutions of groups other than political opposition. The 2014 massive civil society crackdown in Azerbaijan and the 2016 coup d’etat attempt in Turkey, both resulting in arrests of numerous human rights defenders, lawyers, journalists and members of the political opposition, among others, led to an influx of Article 18 applications brought by human rights groups. In its series of cases relating to persecution of Azerbaijani human rights defenders, EHRAC and its Azerbaijani partner lawyers have consistently argued that the various restrictions imposed on human rights defenders by the authorities, including their arrest and detention and disbarment of lawyers, among others, were not only unlawful but primarily served ulterior purposes, in violation of Article 18 of the Convention (taken together with other Convention rights).

This expansion of Article 18 case law to other qualified rights by the Court in Azerbaijani cases is primarily in response to the Government’s extensive repressive policy to paralyze its critics and the litigators’ strategy to address it in a comprehensive and consistent manner. Many of the applicants were arrested, detained, some were denied adequate medical treatment, subjected to beatings in custody, insults and threats in detention, bank accounts were frozen, offices searched and materials and equipment confiscated, travel bans imposed, some were subjected to tax inspections, lawyers had their licences suspended and were disbarred. This indicates a systemic targeted plan to silence everyone speaking out against its policies or defending those who do so or suffer from the authorities’ unlawful actions. EHRAC and its partner lawyers, who represented a significant number of the persecuted members of the Azerbaijani civil society, have consistently argued that the authorities’ actions were in violation of the State’s obligation to act in good faith, with the intention of unraveling the authorities’ systemic intentional ulterior practices against the country’s civil society. Although the Government has consistently denied this before the Court, it was the combination of both the facts of the individual cases (such as public statements by state officials calling applicants traitors and enemies) and the wider contextual circumstances (e.g. the allegedly unlawful actions of NGOs were not criminalised in Azerbaijan), comprehensively presented to the Court by the applicants in each case, that led the Court to conclude that the State had acted with ulterior purposes.

This judgment is the Court’s latest response to the victims’ attempts to confront the Azerbaijani Government’s bad faith behaviour, expanding the application of Article 18 to two more qualified rights: the rights to protection of property and to freedom of movement (and has already done so with regard to rights under Articles 8 and 10 of the Convention in the cases of human rights lawyers Intigam Aliyev and Khalid Bagirov relating to the confiscation of case files and search of offices, and disbarment respectively). In establishing the Government’s ulterior purposes in this case, the Court took into account the applicants’ status as a human rights lawyer and a human rights NGO, attaching particular importance to the special role that they play in promoting and defending human rights. It made particular reference to the fact that the transfer of money to Mr Mustafayev for legal aid from the Council of Europe was considered ‘as an instrument’ in the criminal investigation against him, suggesting that this pointed to the possibility that the freezing of the bank accounts was used as a measure ‘preventing him from exercising his professional legal activity’.

The Court attached importance to the extent that the imposed restrictions negatively impacted the applicants’ ability to continue their human rights work, effectively ‘paralyzing their work’. It also drew attention to the Government’s failure to explain why such restrictions were necessary and what the legitimate reasons were, pointing to the Government’s inability, and/or unwillingness, to engage with the Court’s process to explain its actions.

Finally, the Court attributed particular importance to the specific context of the applicants’ case, in which many other human rights defenders, activists and Government critics face similar and other restrictions – which it has already addressed in several other cases relating to ‘a pattern of (…) retaliatory prosecutions and misuse of the criminal law in breach of Article 18’, and cross-referred to in this case. The Court’s reliance on its earlier findings under Article 18 in similar cases against Azerbaijan and contextual factors to substantiate its findings in this case indicates the Court’s softening approach to the burden of proof threshold in Article 18 cases. It speaks to the significance of the accumulative impact of consistent litigation of ‘bad faith’ cases by human rights groups, such as EHRAC  and its partner lawyers have done in the case of Azerbaijani human rights defenders, allowing the Court to establish the state’s ulterior purposes as a systemic problem and refute the Government’s allegations of there being merely isolated instances.

Protection of human rights lawyers

The legal profession and lawyers who take on civil rights cases have been among the most recent targeted groups in Azerbaijan. The repercussions have developed from criminal convictions and imprisonment to confiscation of case materials and equipment, suspension and disbarment to travel bans and freezing of bank accounts, among others. Since the domestic judicial system does not offer any effective oversight and protection and upholds the bad faith actions of the executive, the Court has become the only judicial institution to seek recognition of violations and exposure of such targeted persecution – to which the Court has responded by utilising Article 18.

At the time of the writing of this post, the Court has established in three cases that the Azerbaijani authorities have acted with ulterior purpose against human rights defenders, all of whom, albeit targeted in different forms, have been effectively unable to continue their work as a result. Prominent human right lawyer Intigam Aliyev, the Chairman of Legal Education Society, was convicted and imprisoned during the crackdown in 2014, and therefore physically prevented from his work, and hundreds of his case files, including those pending before the Court, were confiscated and his office sealed by the prosecution. Lawyer Khalid Bagirov, who took on many ‘crackdown’ cases, was suspended and later disbarred for speaking out and criticising the ineffectiveness of the judiciary in the politically motivated case against his client Ilgar Mammadov (in whose case the Court found a violation of Article 18 against Azerbaijan for the first time and in respect of whose case the first ever infringement proceedings were initiated by the Committee of Ministers of the Council of Europe). The loss of licence for Mr Bagirov meant he was no longer able to act for all his clients as the domestic law was soon amended to prohibit non-licenced lawyers from acting in domestic courts. Lawyer Asabali Mustafayev, the applicant in the discussed case, had his bank accounts frozen, which effectively meant he was no longer to receive any funding for his human rights work and was further intimidated by the ongoing criminal investigation and the travel bans. None of them have been able to restore their legal work to date – but the Court has taken a significant step aiming to offer the applicants, and the Government, an opportunity for remedies, by ordering the same individual measures to be taken by the Government under Article 46 of the Convention in all three cases. The Court indicated the following:

‘…the adoption of measures aimed, among others, at eliminating any impediment to the exercise of their activities. Those measures should be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court, and they should put the applicants, as far as possible, in the position in which they had been before…’

Although used in very rare instances, under Article 46 the Court may indicate the type of measure to be taken in order ‘to put an end to a violation’ it has found, ‘with a view to helping the respondent State to fulfil its obligations under Article 46’. The Court has said that it may either be specific or propose various options and leave the choice of measure to the discretion of the respondent state, and in certain cases, ‘the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it’ and the Court may decide to indicate only one such measure.

In the three discussed cases, the Court was specific enough to order the Government to return the applicants to the position in which they had been before the violations, but left it to the domestic authorities’ discretion to decide how to implement this. The necessary individual measures, however, are clear, all directly stemming from the restrictions imposed by the authorities: Mr Aliyev should be able to restore his NGO activities as a part of which he worked as a human rights lawyer, have his conviction quashed and other imposed restrictions lifted, Mr Bagirov should be reinstated to the Azerbaijani Bar Association, and Mr Mustafayev should have unrestricted access to his bank accounts to be able to fund his legal work and that of his NGO. While establishing that the Azerbaijani authorities have acted with ulterior purpose in all these cases, in the absence of any legal basis for such restrictions whatsoever, the Court nonetheless chose to leave it to these same authorities to ‘negotiate’ the type of remedies before the Committee of Ministers, a political body of the Council of Europe. Furthermore, while recognising  ‘a pattern of (…) retaliatory prosecutions and misuse of the criminal law’ against human rights defenders and other critics, the Court has failed to take an opportunity to indicate a general measure that is fundamental to the effective implementation of the respective individual measures – the creation of an enabling civil society environment, both through adequate legislation and its implementation, without which none of the applicants in any of the Article 18 cases against Azerbaijan will be able to continue their work. It is questionable what dialogue is possible on such cases with the very same authorities that orchestrated such restrictions for their own political ulterior purposes. At least the applicants and human rights groups advocating for improving human rights and civil society situation in Azerbaijan now have a new opportunity to engage on these matters through the Committee of Ministers, in the absence of any space for advocacy domestically, which will certainly be a long road.

A short conclusion

The importance of the Court’s findings under Article 18 of the Convention in this case, and in other related 18 cases, is undoubtedly significant. In the Azerbaijani human rights defenders’ cases, including in the case of Mr Mustafayev, it was the Court’s establishment of a violation of Article 18 that unravelled the authorities’ ulterior purposes behind the civil society crackdown, in an authoritative judicial form, and cracked the saga of the alleged ‘double standards’, which the Government of Azerbaijan has claimed, dismissing any Council of Europe or other international advocacy work as politically biased. The judgments not only exposed the highly repressive and extensive abusive practices, but also provided the applicants with a rare opportunity to seek legal remedies through the domestic courts. Even in such an extremely repressive environment as that of Azerbaijan, some progress seems to be possible, as the cases of a human rights defender Rasul Jafarov and opposition politician Ilgar Mammadov have shown – both have had their convictions quashed. These cases also speak to the importance of the consistent, repeated efforts of applicants and litigators to make Article 18 complaints before the Court and of the Court’s concomitant response to address the deepening authoritarian policies with the tools, which the Convention was designed to provide.

The post Democracy and Human Rights Resource Centre and Mustafayev v Azerbaijan: the Court’s expanding Article 18 practice to confront states’ ulterior purposes appeared first on European Human Rights Advocacy Centre (EHRAC).

How far does—or should—the European Court of Human Rights recommend, or require, states to take specific non-monetary measures after the finding of a violation of the European Convention on Human Rights (ECHR)? This is a live debate within the Council of Europe (CoE) and one on which Judges of the Court do not always agree. It is also a debate that has implications for civil society and litigators and, since specificity may alter the prospects of a judgment getting implemented, for the overall functioning of the Convention system.

The Court’s approach to specifying remedies is in flux. An official of the Court’s Registry describes its remedial practice as “a learning process for everybody”: states, the Court and the Committee of Ministers (CM, the inter-governmental arm of the CoE, which under Article 46(2) of the Convention is tasked with supervising the execution of judgments). The official is quoted in an article we co-authored as part of the Human Rights Law Implementation Project, which (like this blog) draws on interviews with, among others, Judges of the Court, Council of Europe officials, government agents and civil society organisations, as well as a statistical analysis of judgments indicating non-monetary remedies between 2004-16.

Before the mid-2000s, the Court very rarely gave any indication of what a respondent state should do to remedy any violations found, whether in terms of adopting individual measures aimed at providing redress to the victim, or general measures to prevent similar violations from occurring in the future. Almost invariably, the Court would simply declare a violation, possibly award compensation, and then leave it to the state, supervised by the CM, to design the remedy.

This declaratory approach began to change in 2004 when states themselves, represented in the CM, invited the Court to assist them to find “appropriate solutions” to systemic problems. From then on, the Court became more directive. It used the pilot judgment procedure to identify the structural problem underlying repetitive cases and prescribe, with a deadline, measures to resolve it. Also, the Court invoked Article 46 ECHR (on the binding force and execution of judgments) to indicate remedial measures, without applying the pilot judgment procedure. Such indications in either type of judgment may be precise (e.g. Youth Initiative for Human Rights v Serbia; see paragraph 32) or expressed as guiding principles or desired outcomes (e.g. Samaras and others v Greece; see paragraph 73), with discretion left to the respondent state, under the CM’s supervision, to determine the means to be used.

The Court’s current practice

While pilot judgments are codified in the Rules of Court, there are no stated criteria for when Judges invoke Article 46. Judge Sicilianos observes extra-judicially that the Court generally recommends remedial measures having considered three factors: the existence of an underlying structural or systemic problem; the type and scale of the measure required; and the nature, seriousness and/or persistence of the violation. Judges feel especially emboldened to prescribe a remedy in cases in which there is only one possible response to the violation (as argued here). A notable example was Del Río Prada v Spain, in which the Court ordered Spain to release “at the earliest possible date” a woman convicted of terrorist offences on the basis of violations of Article 7 (No punishment without law) and Article 5(1) (Right to liberty).

How frequently does the Court order remedies? Contrary to some perceptions, directive judgments are still a tiny fraction of the Court’s case law and their use has not increased in recent years. Between 2004 and 2016, the Court issued 29 pilot judgments and 170 Article 46 judgments. These judgments constituted on average only 2% of all judgments finding a violation of the Convention, the vast majority of which are still declaratory.

Our statistical analysis also reveals that the Court indicates general measures more often than individual measures. This reflects its concern to aid states in remedying structural problems that give rise to repetitive cases and thereby safeguard the effectiveness of the Convention system.

It does not appear that any state has been singled out by the Court in respect of its decision to order specific remedies—or, conversely, has disproportionately escaped the use of such judgments. Eight of the ten states that received the highest number of directive judgments between 2004 and 2016 are also among the ten highest count states for the total number of judgments finding a violation during that period. In other words, the number of directive judgments is roughly in line with the overall number of judgments finding violations per state. Former Soviet states in that list include Russia (with a combined total of 22 pilot or Article 46 judgments) and Ukraine (11).

Pragmatism

It may seem surprising that a state like Russia, with the second worst record in the CoE in terms of the number of violations found, including many with systemic causes, is not more frequently directed by the Court as to exactly what remedy is required. One explanation is that, in deciding on their remedial strategy, Judges seek, case-by-case, to anticipate whether indicating a particular remedy will, in practice, encourage implementation—and there may be pragmatic considerations for refraining from, or deferring, doing so.

Such considerations include the possibility that states resist remedial indications that are viewed as unrealistic or as interfering unduly with domestic decision-making. One Judge explained that the Court would usually refrain from issuing a pilot judgment unless the state has signalled its willingness to cooperate. Judges sometimes adopt an Article 46 judgment as a precursor to a pilot judgment, highlighting an emerging systemic problem, and putting the government ‘on notice’ that the Court may later escalate the matter.

In making such calculations, Judges are mindful of the political nature of the implementation process. One Judge told us that, in an enforcement system based upon “political will and pressure”, it is justifiable for a supranational court to take into account the need for remedial measures to be “persuasive and acceptable” to those that must implement them. The use of a variety of remedial strategies is indeed defensible if it meets the overriding purpose of achieving the best possible outcome for the victim (and potential future victims). As Judges develop their remedial practice, this imperative must prevail, lest pragmatism lead to different levels of redress for applicants in different states.

In designing appropriate remedies, Judges and drafting lawyers have been aided in recent years by an increased flow of both information (notably by means of the HUDOC-EXEC database) and personnel between the Court and the CM. The Court has thus become more sensitised to matters relating to execution, and better able to assess the state of implementation of earlier judgments relating to a question before them.

Reasons for caution

The Court’s greater engagement with execution matters—as noted above—has not led to a dramatic rise in directive judgments. This is partly because the Court is acutely aware of its limitations when it comes to specifying remedial measures. These include its geographical distance from the events on the ground and the lapse in time between the facts at the origin of an application and—often years later—judicial determination of the case. Judges are especially wary of indicating general measures which involve policy-based analysis requiring deep understanding of the political and legal environment in the respondent state.

The Court is also wary not to be seen as encroaching upon or undermining the supervisory role of the CM. Judges and officials recognise that the CM provides assistance drawn from good practice across states and hence is better placed than the Court to assess the ramifications of remedial indications on the domestic plane.

Government agents we interviewed also emphasised the value of dialogue during the execution process, both between domestic stakeholders and between the domestic and supranational levels. Combined with technical assistance from the Department for the Execution of Judgments (DEJ), such dialogue may yield solutions that are not initially apparent. This is one reason why government agents we spoke to did not express a wish for the Court to become significantly more directive than it currently is. The same caution is reflected in the report by the CM’s Steering Committee for Human Rights in 2015 on the longer-term future of the Convention system, which rejected proposals for more regular or formalised recourse to the indication of general measures (see paragraphs 145 and 163).

Impact on implementation

At the same time, there is no pattern of ‘pushback’ by states against the Court’s occasionally intrusive remedial practice. The issue has simply not featured in the contentious debate—which flared up before the Copenhagen conference in 2018—about the Court’s proper role vis-à-vis the principle of subsidiarity.

Indeed, CM officials who have daily contact with states said they would welcome, if anything, more frequent directive rulings. This message has been heard by at least some Judges, one of whom told us that the DEJ “would of course welcome more prescriptive-type reasoning—it … helps them in their work and we are well aware of that.”

Well-designed remedial indications can both provide guidance to states that are willing to give effect to the Court’s findings, and reduce the scope for unwilling actors to frustrate implementation, by making non-implementation easier to identify. This renders states more susceptible to pressure not only from the supranational level, but also domestically, since one effect of specificity is to strengthen the hand of conscientious domestic actors, particularly civil society, pushing for implementation. Indeed, the Court is aware of the need to identify ‘allies’ in the respondent state. As one Judge argued: “I think this is a legitimate strategy of the Court: giving some impetus to the implementation process and [helping] … groups on the national level to have some political force.”

The role of civil society

Strasbourg’s search for pro-implementation allies provides an opening for civil society actors and national human rights institutions (NHRIs) to become more involved at the implementation stage. This opportunity is not exploited to the full; NGOs and NHRIs make submissions to the CM in only five per cent of leading cases (see here, para. 17), and this figure is in fact decreasing.

Civil society actors who are attuned to execution matters acknowledge the value of greater direction from the Court for encouraging implementation. A representative of the Georgian Young Lawyers’ Association ventured that specificity “makes our work easier because … the government has no discretion whether to apply this measure or that.”

At the same time, an activist involved in the case of Identoba and Others v Georgia, concerning the state’s failure to protect demonstrators from, and effectively investigate, homophobic violence, argued that it would have been unrealistic for the Court to specify the general measures required to, for example, change prejudicial attitudes, which was a question best left to the CM’s supervision process. This observation captures the pragmatic approach of the civil society actors we interviewed, who sought clarity about the non-monetary remedies required either from the Court or the CM.  

Consolidation

One Judge ventured that the Court’s “already rich” case law on remedies would benefit from consolidation. This in turn requires Judges to agree on areas of contention, including the Court’s very authority to issue binding orders in its judgments, which was exposed in the Grand Chamber judgment of Moreira Ferreira (No. 2) v. Portugal in 2017. In our interviews, the unusually prescriptive judgment in Oleksandr Volkov v Ukraine, which ordered the reinstatement of an unfairly dismissed Supreme Court judge, was the only judgment which some Judges regarded as having gone “too far”, although it was ultimately successful.

Another challenge for the future is to eliminate inconsistency in the Court’s remedial practice   whereby Judges do not always stipulate specific, non-monetary individual measures even when there appears to be only one possible form of redress. In such cases, states might wilfully misinterpret the absence of remedial indications as suggesting that no such measures are required, as exemplified by the authorities’ protracted resistance to the judgment in Ilgar Mammadov v Azerbaijan, which omitted to explicitly order the release of the unlawfully detained opposition leader.

Reform

A concrete proposal for reform identified by some Judges is to institutionalise a process whereby the parties to a case would routinely be invited to make submissions on remedies. This would create a more informed basis for the Court’s assessment of possible measures in Article 46 cases in which, unlike in pilot judgments, the issue of remedies is almost never part of the pleadings before the Court.

On those rare occasions when applicants do invite the Court to specify remedies, the Court has shown that it is prepared to listen (see, for example, the detailed Article 46 chapter in Aslakhanova v Russia, concerning systemic problems with criminal investigations into disappeared persons from the North Caucasus, which appears to have been substantially informed by the applicants’ pleadings). However, Aslakhanova may prove to have been the high water mark in such cases from the North Caucasus in terms of the Court making detailed indications under Article 46 when urged by the applicants to do so; in its recent judgments in Kukurkhoyeva and Others and Yandayeva and Others, the Court preferred to leave it to the Russian Government to choose the means to be used in the domestic legal order with a view to discharging its legal obligation under Article 46.  In other instances, too, Judges have rejected the applicants’ suggested remedies or have (as happened in Abu Zubaydah v Lithuania, concerning Lithuania’s involvement in a CIA secret detention programme; see paragraph 683) endorsed only some of them.

Nevertheless, judicial appetite for submissions on remedies creates every incentive now for applicants to indicate proactively, from the start of the litigation process, what measures they deem necessary—and for civil society actors to consider this dimension not only in their Rule 9 submissions to the CM, but also in third-party interventions before the Court.

Looking ahead

Will Strasbourg move in the direction of the Inter-American Court of Human Rights, which takes the boldest approach of all supranational human rights bodies to stipulating reparations, or will those forces prevail that want to see Judges exercise more, not less, restraint?

Our research suggests that the Court is likely to chart a middle course, neither foreclosing the evolution of this aspect of its case law, nor accelerating the pace of change. Encouragement from the DEJ and the absence of any sustained challenge by states suggest that Judges enjoy a wider political latitude than they might suppose—space that they may well use to promote execution in the interests of actual and potential victims.

The post ‘Fluid and evolving’: The European Court of Human Rights’ approach to specifying remedies appeared first on European Human Rights Advocacy Centre (EHRAC).

The seriousness of the problem of violence against women cannot be overestimated. Despite all efforts, gender-based violence against women “remains pervasive in all countries, with high levels of impunity”¹.For example, as of 2013, around 35% of women (up to 70% according to various national studies) have experienced physical and/or sexual violence² from an intimate partner in their lifetime.³Taking into account that domestic abuse is a largely hidden crime that is often not reported, the real scale of violence is probably much worse.

In 2017, 30,000 women were intentionally killed by their current or former intimate partners, meaning that 82 women across the world are killed by an intimate partner every day.⁴ It is an established fact that women are disproportionately affected by intimate partner violence.⁵While only 18% of male victims of homicide were killed by intimate partners, 82% of female victims of homicide were killed by their intimate partners.⁶

There is also significant evidence to suggest that many women who killed or injured their intimate partner were, in fact, defending their lives and/or the lives of their children from an attack within the context of domestic violence.⁷ However, despite the existence of the right of self-defence in various jurisdictions, many of these women who physically protect themselves from imminent harm (including death) end up being convicted of and imprisoned for violent offences (e.g. infliction of grievous bodily harm or murder).⁸

With regard to Russia, recent research has demonstrated that 79% of women convicted of murder were victims of domestic violence, and 83% of women convicted of ‘murder committed while exceeding necessary limits of self-defence’ (an offence under Article 108(1) of the Criminal Code) were defending themselves from their violent partners.⁹

Gender stereotypes and women’s access to justice in domestic violence cases

Although the UN General Assembly urges states to update their criminal procedures in order to ensure that “[c]laims of self-defence by women who have been victims of violence, particularly in cases of battered woman syndrome, are taken into account in investigations, prosecutions and sentences against them”,¹⁰Russian legislation does not contain similar provisions. Moreover, although the Russian law on self-defence is constructed in a gender-neutral way (there is no specification that women cannot claim self-defence), law enforcement agencies and judges ignore gender perspectives and reinforce numerous gender stereotypes when they apply the law.

It is widely recognised that stereotypes and stereotyping have an appalling and broad effect on a woman throughout her life cycle. Stereotypes allocate women to submissive roles in society, creating prejudices about women’s subservience in both public and private spheres.¹¹They are a cause of structural inequality, discrimination, imbalance of power, and oppression. The UN CEDAW Committee has repeatedly linked gender stereotypes and perceptions of women as subordinate to men as an underlying cause of gender-based violence, and indicated that the obligation to combat gender-based stereotypes, which affect women in both private and public spheres, is one of three central obligations of states to eliminate discrimination against women.¹²Moreover, in its General Recommendation No. 33 on the access to justice,¹³the CEDAW Committee cited gender stereotyping as the primary obstacle that prevents women from realising their right to access to justice.¹⁴

While gender stereotypes are perpetuated “through various means and institutions, including laws and legal systems”, and “by State actors in all branches and at all levels of government and by private actors”,¹⁵the engagement of law enforcement authorities and judges in stereotyping is particularly harmful because stereotypes seriously compromise their impartiality and lead to binding decisions based on preconceived beliefs rather than relevant law, facts, and enquiry.

Gender bias and self-defence cases in Russian courts

Zona Prava’s recent report analysed:¹⁶20 guilty verdicts under Article 105(1) (Murder) of the Criminal Code of Russia; 20 guilty verdicts under Article 108(1) (Murder Committed while Exceeding Necessary Limits of Self-Defence); 15 guilty verdicts under Article 111(4) (Intentional Infliction of a Grave Injury which Has Resulted in the Death of the Victim by Negligence) for 2016-2019; and 10 acquittals under these articles for 2010-2019 of women who had killed their partners and claimed self-defence. In almost all of the judgments, women raise the issue of long-term and quite often severe domestic abuse. The aim of the report was to examine whether Russian judges are free from stereotypes and biases when considering cases concerning self-defence in the context of domestic violence.

The main findings of the report can be summarised as follows.

In the vast majority of cases, judges do not recognise domestic violence to be a specific and systemic human rights violation which is nuanced and has serious consequences. Judges describe the situation of domestic violence as a “personal enmity”, “squabble”, “conflict”, “scuffle” (etc.), ignoring the specifics of domestic violence cases and underestimating the impact of, and the gravity of harm caused by, domestic abuse. In several judgments, judges normalised the situation of domestic violence. For example, one judge stated that: “the situation that happened on [the day when she killed her partner] was common to [her], the conflict was predictable for her, the actions of her [partner] did not extend beyond his usual illegal behaviour towards [her], he again caused her beatings, and in turn she killed him”.¹⁷

In a significant number of convictions, judges apply stereotypes about “ideal victims” of domestic violence. These include the setting of rigid standards about what judges consider to be appropriate behaviour for a victim of domestic violence, and the penalising of women who do not conform to these stereotypes.

The most pervasive stereotypes perpetuated by judges are:

1. “Why didn’t she leave?”—i.e., if a victim of domestic violence stayed in the abusive relationship, she was either comfortable with it or the abuse was not serious enough;
2. “If she had seriously worried for her safety, she would have contacted the police.”— (Conversely, survivors or their legal representatives often explained why they did not leave, e.g., “She wanted to leave him, but their parents did not allow her to do that as she will be alone, and nobody will need her”; “She has to bear everything as they are married”; “She left him, … but it was not possible to hide from him as he stalked her. She was afraid of him”; or that she did not contact the police because, to give some examples, she was threatened by an abuser or his relatives or she did not trust the police, who may have failed to act on previous reports, etc.;¹⁸
3. Judges are often prejudiced in their beliefs that women can escape violence no matter what, instead of protecting themselves, or that they can defend themselves with their bare hands from violent and aggressive abusers—while, in fact, the Supreme Court of Russia has directly outlined that victims of crimes have a right to defend themselves even if they can escape or ask for help.

At the same time, an analysis of acquittals demonstrates that Russian judges are capable of not applying, reinforcing, and perpetuating stereotypes. Acquittals also show that Russia’s criminal law in principle “sufficiently establishes the right to self-defence”¹⁹and does not prevent courts from considering the context of domestic violence within these types of cases.

Conclusion

The author of the report concludes that stereotypes can result in a warped understanding of a woman’s actions in a situation where a judge decides whether limits of self-defence were met. Stereotypes contribute to upholding a culture of impunity. On the one hand, the state is unable or unwilling to provide protection for victims of domestic violence and to hold domestic abusers accountable.²⁰Thus, women are forced to defend their rights by their own means, at their own risk. On the other hand, the state severely punishes those women who nevertheless choose to protect themselves.

Accordingly, a woman actually faces an impossible choice: either to tolerate domestic violence (which is often quite serious and can result in her death), or to defend herself and face criminal prosecution (which can end in imprisonment). The law on self-defence as it is applied now (in particular, in Russia) creates the impression that a state is taking the side of the abuser.

[1] CEDAW, ‘General recommendation No 35’ (2017) (GR No 35) para 6.

[2] This statistic does not include sexual harassment and violence from other family members, strangers, etc.

[3] WHO, ‘Prevalence and health effects of intimate partner violence and non-partner sexual violence’ (2013) https://apps.who.int/iris/bitstream/handle/10665/85239/9789241564625_eng.pdf?sequence=1  accessed 09/08/2020 2; UN Women, ‘Facts and figures: Ending violence against women’ (November 2019) https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures#notes  accessed 09/08/2020.

[4] UNODC, ‘The Global Study on Homicide’ (2019) https://www.unodc.org/documents/data-and-analysis/gsh/Booklet_5.pdf> accessed 09/08/2020 10.

[5] https://www.coe.int/en/web/gender-matters/what-is-gender-based-violence

[6] UNODC, ‘The Global Study on Homicide’ (2019) https://www.unodc.org/documents/data-and-analysis/gsh/Booklet_5.pdf> accessed 09/08/2020 11.

[7] For Russia, see Zhukova, Kryukov, et al., ‘«Я тебя сейчас, сука, убивать буду». Большинство женщин, осужденных за убийство, защищались от домашнего насилия’ (Mediazona, 25/11/2019) <https://zona.media/article/2019/11/25/women-105> accessed 09/08/2020; for the Americas, see the Committee of Experts (CEVI) of the Follow-up Mechanism of the Belem do Para Convention (MESECVI), ‘General Recommendation N. 1 of the Committee of Experts of the MESECVI’ (2018) <https://www.oas.org/en/mesecvi/docs/MESECVI-CEVI-doc.249-EN.pdf> accessed 09/08/2020 1.

[8] ibid; Linklaters LLP, ‘Women who kill in response to domestic violence’ (Penal Reform International, 2016)

<https://cdn.penalreform.org/wp-content/uploads/2016/04/Women_who_kill_in_response_to_domestic_violence_Full_report.pdf> accessed 09/08/2020 4.

[9] Ibid https://zona.media/article/2019/11/25/women-105.

[10] UNGA Res 65/228 (2010) GAOR 65^th Session para 15(k).

[11] CEDAW, ‘General recommendation No 19: Violence Against Women’ (1992) (GR No 19) paras 11, 12, 24(e), 24(f), 24(t)(ii).

[12] GR No 19 para 11; GR No 25 para 7; GR No 35 paras 19, 30(b).

[13] CEDAW, ‘General Recommendation No 33’ (2015) (GR No 33).

[14] GR No 33 paras 3, 26.

[15] CEDAW, X. and Y. v Russia (CEDAW/C/73/D/100/2016) para 9.9.

[16] Gryaznova, D, ‘The Right of Self-Defence of Victims of Domestic Violence: Stereotypes and Biases in Russian Courts’ Judgements’ (Zona Prava, 04/11/2020) <https://zonaprava.com/events/doklad-zony-prava-rossiyskie-sudi-stereotipno-podkhodyat-k-delam-o-samooborone-pri-domashnem-nasilii/> assessed 08/12/2020.

[17] Ibid https://zonaprava.com/events/doklad-zony-prava-rossiyskie-sudi-stereotipno-podkhodyat-k-delam-o-samooborone-pri-domashnem-nasilii/ 6.

[18] Ibid https://zonaprava.com/events/doklad-zony-prava-rossiyskie-sudi-stereotipno-podkhodyat-k-delam-o-samooborone-pri-domashnem-nasilii/ 9-10.

[19] Duban, Davtyan, Frolova, ‘Research On Preventing And Combating Violence Against Women And Domestic Violence Including In Situations Of Social Disadvantage In The Russian Federation’ (The Council of Europe, April 2020) <https://rm.coe.int/publication-research-on-vaw-and-dv-in-situations-of-social-disavantage/16809e4a04> accessed 09/08/2020 from 36.

[20] Human Rights Watch, ‘“I Could Kill You and No One Would Stop Me” Weak State Response to Domestic Violence in Russia’ (25/11/2018) <https://www.hrw.org/report/2018/10/25/i-could-kill-you-and-no-one-would-stop-me/weak-state-response-domestic-violence> accessed 09/08/2020; Equality Now, ‘Russia Is Failing In Its Obligations To Protect Women From Domestic And Sexual Violence’ (20/10/2019) <https://www.equalitynow.org/russia_domestic_and_sexual_violence> accessed 09/08/2020.

The post The Right of Self-Defence in Domestic Violence Cases: Stereotypes and Biases in Justice Systems (Using the Example of Russia) appeared first on European Human Rights Advocacy Centre (EHRAC).

On 29 January 2001 police arrested ‘Mr. N.’ and committed him to a psychiatric hospital after a local newspaper in Bucharest published a short article accusing him of having molested his children. A psychiatric report subsequently found that Mr. N. lacked discernment due to schizophrenia and a court formally validated a psychiatric detention order.

Although most charges against Mr. N. were eventually dropped, he spent the next seventeen years involuntarily detained in high security psychiatric hospitals. During this time, Mr. N. went before national courts on many occasions to claim his innocence, but the default response was that he was too ill and too dangerous for release.

The European Court of Human Rights (“ECtHR”) took a different view. It found that Mr. N.’s detention had been unlawful and ordered the Romanian authorities to release him. The ECtHR also asked Romania to take general measures to remove arbitrariness from its forensic psychiatry system. The ruling triggered an unlikely sequence of events that engaged national and international actors and exposed layers upon layers of persecution and marginalisation of some of the most vulnerable people in society.

This article aims to document that journey. It draws some conclusions on the potential of strategic litigation, and of engaging international institutions, to achieve some degree of change for people with disabilities.

The first ray of light

The judgment in the case N. v. Romania was published in February 2018. It was decided that Mr. N. had been unlawfully detained since at least 2007, resulting in multiple violations of his right to liberty (Article 5 of the European Convention on Human Rights).

The ECtHR noted that the national authorities failed to adduce any evidence proving that Mr. N. was dangerous, justifying his continued detention as a forensic patient. His release was delayed by the systemic absence of suitable facilities to help patients re-settle after long periods of detention. Furthermore, the proceedings reviewing the validity of Mr. N.’s detention through the years were flawed due to the poor performance of ex officio lawyers and to widespread procedural irregularities.

Making use of its powers under Art. 46 (which relates to the binding force and execution of judgments), the ECtHR instructed the Romanian Government to immediately release Mr. N. “under conditions consonant with his needs” and to take general measures to ensure that psychiatric detention was “lawful, justified and devoid of arbitrariness”.

Litigation in Romania

Certain national-level developments further elucidate the ECtHR’s findings.

In 2015, I started to argue that Mr. N. should be released based on lack of public risk. In 2016, and then again in 2017, national courts conceded the point and ordered that Mr. N. should be released. However, those orders could not be implemented without organised support and clear procedures in place. In short, people like Mr. N. were never likely to be released, so these demands found the relevant authorities completely unprepared.

This offered the ECtHR the opportunity to emphasise the systemic underpinnings of Romania’s failure to release Mr. N. It drew on the provision of the Convention on the Rights of Persons with Disabilities (CRPD) that declared disability-based detention unlawful, and recalled the international trends in favour of deinstitutionalisation. The ECtHR noted that national courts were neither entitled to supervise nor secure Mr. N.’s release in appropriate conditions. Furthermore, there was a “lack of suitable reception facilities” to help patients like Mr. N. back into the community.

These findings are reflected in the wording of the remedial measures prescribed under Art. 46, which offered a strong platform for advocacy at the national level, as well as before the Council of Europe’s Committee of Ministers (CoM).

The long way home

The process of securing Mr. N.’s release continued to be fraught with difficulties, despite the ECtHR’s exhortations. The inertia built into the system, the stigma against people with psychosocial disabilities (particularly those alleged to have committed a crime), the lack of an institutional path to community living, and the lack of a family to return to, conspired to preserve the status quo. I was required to continue arguing our case before the CoM.

In early May 2018 the CoM received information about the lack of progress in arranging Mr. N.’s return to the community. Several weeks later, Mr. N. was finally transferred to a social care home in Bucharest, thus ending his 17-year stay in psychiatric hospitals.

Mr. N. escaped the status of a psychiatric patient and the substandard conditions at the psychiatric hospital. Nonetheless, the social care home was still a residential institution and Mr. N. continued to be de facto deprived of his liberty.

In a fresh submission, I insisted that this would only be acceptable as a staging post for Mr N.’s path back to the community and informed the CoM that Estuar Foundation, a Bucharest-based NGO, was ready to provide him with sheltered housing if the local authorities agreed to cover the requisite funding.

The CoM first examined the execution of this case in December 2018. The resolution issued on this occasion noted the progress made in returning Mr. N. to the community and called on the authorities to continue their efforts with a view to securing “community based accommodation suited to his needs,” specifying further that sheltered housing was required.

In September 2019, Mr. N. finally moved out of the institutional system to an ordinary block of flats in Bucharest where he lives with support provided by Estuar. This is one of the first publicly funded, community-based, sheltered housing schemes for people with psychosocial disabilities in Romania.

Calling for general measures 

Mr. N.’s case is only the tip of the iceberg. Hundreds of forensic patients, sometimes referred to as “social cases,” languish in psychiatric hospitals without any prospect of being freed. This is caused by the structural lack of provision for deinstitutionalisation and the absence of a network of support in the community. The ECtHR pointed out that these structural problems were “liable to give rise to further justified applications in the future,” and prescribed specific remedial action aimed at ending unlawful psychiatric detention.

Following the N. v. Romania judgment, I joined forces with the European Network for Independent Living (ENIL) and the Estuar Foundation to make a detailed submission to the CoM outlining the scope of the general measures required with respect to the detention in the forensic psychiatry system and on access to justice for people with psychosocial disabilities. At the national level, I worked with local organisations to push for a draft bill, which aimed to fundamentally overhaul the forensic psychiatry system, as well as by looking for other litigation opportunities to increase the pressure for change.

Although three years have passed since the ECtHR’s judgment, we have yet to see any substantive progress at the national level or before the CoM.

Back to square one

While these events were unfolding, a different line of litigation moved in the opposite direction, leading to a radical loss of autonomy.

This began after the ECtHR misguidedly asked the Government to indicate the name of the legal representative appointed to act for Mr. N. during proceedings in the N. v. Romania case.[1] The only type of representation available under Romanian law for persons like Mr. N. is an extreme form of plenary guardianship that had remained essentially unchanged for 150 years.

Approximately 85,000 people with psychosocial disabilities are placed under so-called ‘interdiction’ (a measure that is applied loosely and on a permanent basis in the vast majority of cases, with minimal judicial supervision) that vests the individual’s fundamental rights in an unaccountable third party (‘the guardian’) who often works for the state or for the residential institution holding that individual. Purportedly a measure of protection, ‘interdiction’ is in fact a means to control marginalised individuals and provide cover for abuse.

The domestic authorities launched proceedings to place Mr. N. under guardianship in 2014. Unsurprisingly, a district court (in 2016) and a county court (in 2018, on appeal) agreed with that request based solely on a medical expert report that deduced a lack of mental capacity based on Mr. N.’s diagnosis. This meant that just as Mr. N. was finally leaving the psychiatric hospital, he simultaneously suffered “civil death” through incapacitation.

Other developments provided some reasons for hope. In 2017, the county court agreed with our request to refer a question to the Constitutional Court regarding the constitutionality of the main provision in the Civil Code regarding the ‘interdiction’ procedure. Furthermore, in 2018, Mr. N. filed his second application with the ECtHR, in which he claimed that his incapacitation was in breach of Arts. 8 and 14 of the Convention. This was communicated in May 2019.

A new hope?

I argued that Mr. N.’s incapacitation hindered the execution process in N. v. Romania, both in terms of obstructing his return to the community and of preventing him from accessing the just satisfaction awarded by the ECtHR.

In its resolution issued in December 2018, the CoM reacted by expressing dismay that the “deficiencies in the current system of legal protection for adults left the domestic courts with no option but to place the applicant under guardianship and thus deprive him of the exercise of his civil and political rights.”

The CoM went on to emphasise that until such time as Romania adopted “legislation establishing a new system of independent and effective legal protection, tailored to the specific needs of adults with mental disabilities,” the authorities had “to take steps to ensure that the appointed guardian involved [Mr. N.] and took his preferences into account in the decisions concerning him, if consistent with his best interests,” as well as provide information about “the legal safeguards or any arrangements made or envisaged to ensure that the sum awarded as just satisfaction was used in [his] best interests.”

In parallel, I urged the Commissioner for Human Rights, during her visit to Romania in November 2018, to properly note the deficiencies of the guardianship system. This was reflected in her report, which called for the system to be abolished and replaced with supported decision-making in line with international standards.

Romania’s Constitutional Court finally organised hearings in Mr. N.’s guardianship case at the end of 2019. In fact, Mr. N. took part in one of these hearings and personally addressed the Court, presumably the first and last person under ‘interdiction’ to do so.

In July 2020, the Constitutional Court ruled that the impugned provisions in the Civil Code were unconstitutional, in one of the most significant breakthroughs for people with psychosocial disabilities in Romania. Once the full judgment is published in the Official Gazette, Romania’s parliament will have 45 days to devise a wholesale reform of the guardianship system.

Provisional conclusions

Mr. N.’s saga is ongoing, with several vital procedures continuing before the Committee of Ministers, the ECtHR, and the Romanian parliament. However, the recent Constitutional Court ruling provides a suitable juncture for some tentative conclusions.

Firstly, this case exposes the interlinked and deeply embedded structures and practices used to control people with psychosocial disabilities, ranging from widespread stigma and economic marginalisation, to institutionalisation and guardianship. In that sense, although Mr. N. managed to finally break free from the psychiatric hospital and the label of a dangerous patient, he was immediately placed under guardianship in a chain of events that had actually been triggered by the ECtHR.

Secondly, this case is a good example of courts and other institutional actors at all levels engaging in productive dialogue and cross fertilisation to expose and correct injustice. We have seen how strong language in the ECtHR’s N. v. Romania judgment formed a platform for advocacy before the CoM, which in turn provided the Constitutional Court with a reason to step out of its comfort zone.

Thirdly, although it takes time and effort, strategic litigation works and it need not be particularly costly, involving, in this case, an aggrieved individual with a burning sense of injustice and a determined pro bono lawyer.

Fourthly, despite meaningful but isolated change, structural change has proven an altogether more difficult prospect to achieve. Romania has not so far shown any interest in engaging in the sort of reform of its forensic psychiatry system required by the Committee of Ministers and it is not clear if any amount of pressure from international actors would change that.

Meanwhile, Mr. N. is trying to rebuild his life and he is enjoying every minute of it. Besides cooking and shopping, and talking to his friends and PAs, he is making plans, eyeing a business opportunity in a bakery near his flat. He would like to get a driving licence. He wants his own flat and a job as a watchman. He would like to start a new family.

And he also wants to help the friends he left behind in the psychiatric hospital.

[1] I previously addressed this practice by the ECtHR in a Strasbourg Observers blog: Silencing the Voices of People with Disabilities: Recent Developments before the European Court of Human Rights, 3 December 2014.

The post A legal saga: ‘Mr. N.’s’ journey from the psychiatric hospital to community living via Bucharest and Strasbourg appeared first on European Human Rights Advocacy Centre (EHRAC).

During his life, Sergei Magnitsky, after whom the Magnitsky laws around the world have been named, had little to do with global human rights. However, as a result of his death, and through those who have worked to ensure his abusers are held to account, his name has become associated with a movement that does not focus on states (the typical target of human rights litigation), but on those individuals and organisations that violate human rights. This article describes one of the latest developments in this approach: the UK’s new Magnitsky laws.

Sergei Magnitsky was a Ukrainian-born, Moscow-based tax lawyer and auditor who, through his work, uncovered thefts against his client, Hermitage Capital, and a US$230 million tax fraud against the Russian state. A month after reporting his allegations to the authorities, Magnitsky was arrested on spurious charges. On 16 November 2009, having suffered squalid prison conditions, mistreatment which included beatings, and the denial of essential medical treatment, Magnitsky died in pre-trial detention. Subsequent to his death, the CEO of Hermitage Capital, the US-born, UK national Bill Browder, launched a global campaign to fight for justice over his lawyer’s death.

Browder’s first significant success was in 2012, when the US Government adopted the Sergei Magnitsky Rule of Law Accountability Act, which empowered the authorities to place visa bans and asset freezes on designated individuals responsible for the detention, abuse, or death of Sergei Magnitsky, the frauds that he uncovered, as well as gross violations of human rights committed against those exposing corruption or defending human rights and freedoms in Russia.

In 2016, this regime was expanded globally (through the adoption of the Global Magnitsky Human Rights Accountability Act), and in 2017 was further broadened by Executive Order to apply to any person who has committed, or facilitated, assisted or provided support for, “serious human rights abuses”. Similar regimes have been put in place in Canada, Lithuania, and Estonia. There is positive progress in Australia and the EU for their own ‘Magnitsky’ regimes.

The UK has slowly adopted the US’s position that it should not welcome, or deal in the assets of, individual human rights abusers. Laws were introduced in 2017 to freeze and recover the assets of violators (via the Criminal Finances Act, which amended the Proceeds of Crime Act 2002).

These laws complement the new Unexplained Wealth Order (UWO) regime, which allows UK agencies to apply to the High Court to force individuals to explain how they acquired UK property if there are reasonable grounds to suspect that the individual who owns them does not have a legitimate income large enough to have obtained it. If the person(s) cannot adequately explain how they acquired the property, it can be recovered under the Proceeds of Crime Act. The first successful UWO concerned property owned by Zamira Hajiyeva, the wife of a state banker jailed for fraud in Azerbaijan, who infamously spent £16 million in London’s luxury department store Harrods.

Until recently, much of the UK’s existing sanctions regime (both EU and UN sanctions) was implemented through EU law. The EU had introduced restrictive measures in response to the crisis in Ukraine, including against individuals and groups (Russian officials, companies, banks, and separatist leaders and groups) responsible for undermining or threatening the country’s territorial integrity, sovereignty and independence. Sanctions were also introduced for those responsible (i.e. ex-President Viktor Yanukovych and his closest associates) for the misappropriation of Ukrainian state funds during the crisis. These sanctions will apply until the end of the transition period: 31 December 2020.

As a result of the UK leaving the EU, the UK was required to implement an autonomous sanctioning regime. To meet the sanctioning gap after the end of the transition period, the government enacted the Sanctions and Anti-Money Laundering Act 2018. This empowered the government to sanction individuals via regulations.

A number of new regulations have been laid to fill the accountability gap of leaving the EU’s sanctions regime, including regulations with respect to the Russian destabilisation of Ukraine. This means that those subject to the current EU sanctions are likely to be carried over to the UK’s autonomous regime.

But these regulations do not come into effect, and the list of those subject to them will not be announced, until 1 January 2021. There have not been regulations laid on those responsible for the misappropriation of Ukrainian state funds, but those EU sanctions not addressed by regulation will nevertheless remain in force as retained EU law under the eventual Withdrawal Act. Whilst it is likely that the UK regime will mirror the EU’s, there will be potential scope to include individuals not otherwise designated under the EU regime.

Much of the UK’s autonomous sanction regime is not yet in force. The regulation that is now in force is its home-grown “Magnitsky Law”. Leading on a promise in its 2019 election manifesto, on 6 July 2020 UK Foreign Secretary Dominic Raab announced the passage of the Global Human Rights Sanctions Regulations 2020. These regulations empower the Foreign Secretary to subject designated persons to asset and immigration bans if there are reasonable grounds to suspect that they are an “involved person” in relation to serious human rights abuses. The regulations have initially included abuses under the following three rights:

• an individual’s right to life;
• right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, or;
• right to be free from slavery, not to be held in servitude or required to perform forced or compulsory labour.

By definition, rights violations are committed by states and not individuals. The regulations recognise this, and are concerned with activities that, if they were carried out by or on behalf of a state, would amount to rights violations. The Government intends to add corruption to the list of violations, as well as other rights, in the future.

The breadth of persons that the regulations can sanction include both real and artificial persons, including government agencies and other State actors. It extends to all “involved persons” in human rights abuses, which not only includes those engaging in or responsible for the activities, but those that, inter alia, facilitate, conceal, provide funds for, profit from, or fail to investigate or prosecute the activities. The legislation is global in its reach, applying to any person who undertakes activities outside of the UK (and activities within the UK by non-citizens and non-UK incorporated entities).

Importantly, just because one can produce proof that an individual has engaged in human rights violations within the scope of the regulations, it does not necessarily mean that they will be designated. The second arm of the test for designation has a significant discretionary element – whether the Secretary of State considers that the designation is appropriate, having regard to the purpose of the regime – being to deter, and provide accountability for, the focussed human rights violations, and the likely effects of the designation on the person. The Government has indicated a number of factors that will be likely relevant in determining whether an individual should be designated:

• Whether the issue sits within the Government’s human rights priorities. Presently, these include: media freedom, combatting modern slavery, preventing sexual violence in or related to conflict, freedom of religion or belief, torture prevention, and the protection of human rights defenders;
• The nature of the victims: particular focus will be on those who seek to obtain, exercise, defend or promote human rights, such as journalists, civil society activists, human rights defenders and whistle-blowers;
• The scale and impact of the violation (particularly whether it is systematic), and the role of the individual in the violation;
• Whether other countries have already sanctioned the person;
• Whether it concerns non-state actors (attention will be given to non-state actors that have significant control over people or an area);
• The status of the person (more attention will be given to designations with greater impact in providing accountability, for instance, due to the position of the individual, or whether they will be personally affected by financial or travel restrictions);
• Whether a relevant jurisdiction has been unwilling or unable to hold those responsible to account.

49 listings were announced at the launch of the regime. 25 of these related to Russians involved in Sergei Magnitsky’s arrest, mistreatment and death; 20 Saudi nationals involved in the high-profile murder of journalist Jamal Khashoggi in Istanbul; two Myanmar military generals involved in the Rohingya genocide; and two North Korean organisations involved in their infamous labour camps.

Those designated have had their assets in the UK “frozen” (although this does not remove their ownership of them) and are barred from visiting the UK. The regulations place obligations on financial services, real estate agencies, legal services and other services not to “deal with” a designated person’s funds or assets (otherwise impermissible dealings can be authorised via a Treasury licence). Contravention of this can result in imprisonment or a fine.

The UK’s sanctions regime is overseen and enforced by the Office of Financial Sanctions Implementation (OFSI), which is part of the Treasury Department. To date, only four organisations have been penalised by this body, all under EU sanctions. For example, Standard Charter Bank was fined £20.47 million for dealing with a Russian bank that was on the Ukraine (Crimea) sanctions list.

It is still early days for the UK’s global human rights sanction regime. The initial listings indicate a focus on human rights abuses and abusers that have gained popular notoriety. Whether or not the sanctions regime will focus on less publicised, although no less serious, violations and violators is yet to be seen. The sanctions regime should not be confused with, and is not a replacement for, criminal procedures against individuals and human rights claims against states. These sanctions are, in reality, a political tool introduced to encourage national human rights accountability, or highlight particularly egregious abuses to embarrass states into action.

Designating a person, or even threatening to do so, may prove a particularly useful tool for NGOs to challenge human rights impunity, both for current abuses, and for those historical cases where more traditional levers of accountability have failed. At EHRAC, we will be carefully considering how this regime can be potentially used in our areas and issues of concern. 

The post The UK’s Global Human Rights Sanctions regime – Regulations with bite, or a toothless tiger? appeared first on European Human Rights Advocacy Centre (EHRAC).

Under its mandate of supervision of implementation of ECtHR judgments, the CM should uplift the review process of implementation of more than 20 judgments, addressed above, through its existing procedures, with the aim to enhance communication with the Azerbaijani authorities on these matters. As experience shows, Baku’s engagement is attuned to such enhancement: it was only after the CM’s decision in 2017 calling for an update on the respective cases that the Government provided its action plan in March 2018, eleven years after the first judgment on this issue. It is time these cases are adequately and routinely scrutinised, particularly following the revelations in the publicised CPT reports, until adequate progress is reported – or otherwise the issue of failure to implement ECtHR judgments is raised. We have already seen some positive developments in the cases of Azerbaijani human rights defenders and other critical voices criminally prosecuted for ‘ulterior purposes’ where the consistent engagement of the CM and other CoE bodies on ECtHR judgments in these cases bore results.

Thirdly and lastly, the various CoE bodies dealing with the issue of ill-treatment and torture in custody and the prevailing impunity in Azerbaijan, should increase their coordination and cooperation on these issues to amplify their efforts. For example, the CM should include the CPT reports and its findings as new relevant information in reviewing the implementation of ECtHR judgments and call upon the Government to account for its actions to address those findings as part of the implementation process. Similar initiatives of other CoE bodies such as the Parliamentary Assembly or the Office of the Commissioner for Human Rights would be welcome too – and we have seen such enhanced cooperation with regard to a number of human rights defenders, activists and other Government critics following their detention as part of civil society crackdown in 2014 (see here, here and here). Individual European states who stand for absolute prohibition of ill-treatment and torture should use their seats and votes to ensure that these cases are prioritised and to signal that torture is not tolerated in Europe.

The post Council of Europe’s old pandemic: ‘endemic’ ill-treatment and torture in custody in Azerbaijan appeared first on European Human Rights Advocacy Centre (EHRAC).

9 February 2020 was snap parliamentary election day in Azerbaijan. In early December 2019, the ruling New Azerbaijan Party unexpectedly requested that Parliament be dissolved. After this request was approved by Parliament and the Constitutional Court of Azerbaijan, President Ilham Aliyev signed a dissolution decree and called elections. There remains speculation regarding the reasons behind this. The New Azerbaijan Party justifies the decision by claiming that it did so to support the reforms of President Aliyev. Others claim that the move was really intended to strengthen the position of his wife, Vice-President Mehriban Aliyeva.[1]

According to an observation mission by the OSCE’s Office for Democratic Institutions and Human Rights (“ODIHR”), Azerbaijan’s 2020 elections were marked by rampant electoral violations.[2] At the close of the polls, it emerged that the vote share had barely changed since 2015. The New Azerbaijan Party won 64 seats in Parliament,[3] compared to 69 seats in the previous election.[4] There were some superficial changes, such as the election of Erkin Gadirli, a prominent member of the opposition Republican Alternative Party (ReAl), but this can hardly be considered to be a genuine advance for the democratic process in Azerbaijan. In previous elections, the Government has typically permitted a few oppositionists to be elected in order to maintain a veneer of fairness and pluralism.

Throughout Azerbaijan’s post-Soviet history, elections have been carefully orchestrated affairs. Most voters know the results of an election before they go to the polls. Observation missions from the ODIHR have never declared that an election in the country has adhered to international standards.[5] The European Court of Human Rights (“ECtHR”) has found numerous violations of the right to free elections concerning Azerbaijan’s 2005 and 2010 ballots. Its judgments have, to date, not been addressed by the Azerbaijani Government. They remain pending implementation before the Committee of Ministers of the Council of Europe (“CoM”) under the name of the Namat Aliyev group of cases.

There were, however, some compelling developments in the February 2020 elections. The country witnessed a significant increase in public interest for political engagement, and in demands for the entire electoral process to be independently observed. The elections were distinguished by the visibility of new figures, including prominent members of civil society, such as human rights defenders, bloggers, lawyers, and youth activists. According to data gathered by the Baku-based Election Monitoring and Democracy Studies Centre (EMDS), unlike previous elections, the number of self-nominated candidates exceeded the number of candidates nominated by political parties.[6]

Azerbaijan’s repressive political climate prevented any serious changes to the balance of power in Parliament in the context of the recent elections. No significant progress has been achieved in terms of the democratisation of the political process or the prevailing environment for free expression, peaceful assembly and association, both before and during the election campaign. The Popular Front Party, which is one of the main opposition parties in Azerbaijan, decided to boycott the elections due to the restrictive environment, whereas a resurgent civil society saw this as a new possibility to, if not win power, then at least create additional space for active political engagement. The elections were also an opportunity for civil society to affirm its ongoing existence in the face of Government repression.

Just a few days before the elections, some independent candidates, mostly drawn from the ranks of civil society, were summoned to police stations and subjected to psychological intimidation.[7] During the election, numerous journalists and observers were beaten, prevented from entering polling stations or expelled from them.[8] A lawyer for one of the candidates died from a heart attack during a confrontation with polling station workers during a vote count.[9]

Other candidates, including a number of prominent human rights defenders, were prevented from standing in the February elections due to their existing criminal records, despite ECtHR rulings that have determined that their detentions were politically-motivated. Azerbaijan’s failure to implement these judgments has since resulted in fresh violations of individual rights.

The so-called Ilgar Mammadov group of cases comprises eight Azerbaijani applicants, most of whom are government critics and human rights defenders. They were all arrested and prosecuted as part of a wider crackdown on civil society in Azerbaijan in 2013-2014. In respect of each of the applicants, the ECtHR found violations of the European Convention on Human Rights (“ECHR”), noting “a troubling pattern of arbitrary arrest and detention of government critics, civil society activists and human rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law.”[10] The CoM has subsequently, repeatedly scrutinised the proper implementation of these judgments by Azerbaijan. In September 2019, it called upon the Azerbaijani Government to immediately eliminate all the remaining consequences of the criminal charges by quashing all convictions brought against the applicants and deleting their criminal records.

One of the applicants in the group is Rasul Jafarov, a prominent human rights defender who is the chairman of the Human Rights Club, a non-governmental organisation specialising in the protection of human rights in Azerbaijan. He was unlawfully arrested and sentenced to six and half years’ of imprisonment in 2015. In 2016, the ECtHR ruled that his detention had been politically-motivated, and he was released from prison on the same day.[11] Despite this, his criminal record has not yet been erased by the Azerbaijani authorities. As a result, Jafarov was prevented from standing as a candidate in the February 2020 elections under prohibitions of domestic law. In conjunction with EHRAC, he subsequently filed a submission to the CoM in January 2020, drawing attention to the authorities’ failure to comply with the previous decision of the body.

Intigam Aliyev, one of Azerbaijan’s most well-known human rights defenders, is another applicant in the Ilgar Mammadov group. In 2018, the ECtHR ruled that his pre-trial detention in 2014 was politically-motivated and aimed at punishing him for his human rights work. He too remains negatively impacted by his criminal record. Aliyev initially planned to stand as an independent candidate, but ultimately did not register.

During a visit to Azerbaijan, the PACE pre-electoral delegation expressed its concerns that the Government’s non-enforcement of ECtHR judgments calls into question the constitutional right of its citizens to participate freely in the election.[12] On 30 January 2020, PACE adopted a new resolution on political prisoners in Azerbaijan, calling upon the authorities to take measures in order to fully implement the ECtHR judgment, and to provide a genuinely competitive environment where all applicants are able to stand as candidates in elections.[13] The Council of Europe’s rapporteur on political prisoners in Azerbaijan condemned the authorities’ failure to implement judgments of the ECtHR before the deadline for candidate registrations, claiming that this would “call into question the whole democratic basis of the validity of those elections.”[14] In response to the PACE resolution, President Aliyev dismissed its recommendations by stating that “the latest resolution adopted in connection with Azerbaijan has no meaning for us; for us it has no more value than a piece of paper. We do not accept any of the far-fetched accusations contained in it and will not fulfil any of their “requirements.””[15]

Only time will reveal the real reasons as to why the ruling party chose to call these snap elections, not least because it seems clear that these elections did not bring noticeable changes to the balance of power in Azerbaijan. In the run-up to the poll, the Government created confusion by allowing some candidates to register and conduct campaigns, whilst excluding others from the competition.

One thing remains clear – the situation for civil society in Azerbaijan remains dire. The active participation of members of civil society in Azerbaijan’s politics, as well as their efforts to create space for public discussion, had caused some people to be hopeful. But, yet again, the absence of democratic competition in these elections marked that hope out as premature. The Government continues to refuse to implement ECtHR judgments and comply with international standards. This appears obvious from the response of President Aliyev to PACE’s resolution. The Government simply does not want to improve the situation. Pressure from international bodies is proving insufficient to tackle the systematic crackdown on rights and freedoms in Azerbaijan.

[1] “Azerbaijanis vote on Sunday. Here are 4 things you need to know about the surprising snap election”, The Washington Post, 7 February 2020.

[2] “Despite large number of candidates, Azerbaijan elections lacked genuine competition and choice, international observers say“, ODIHR, 10 February 2020.

[3] “Parlament seçkilərində ilkin nəticələr açıqlanıb (Siyahı)” Azadliq Radio, 10 February 2020.

[4] “Preliminary results show almost no change in Azerbaijan parliament”, OC Media, 9 February 2020.

[5] “Elections in Azerbaijan”, OSCE/ODIHR.

[6] “Second Interim Report of the Election Monitoring and Democracy Studies Center on the Pre-election Campaign Period 9 February 2020 Early Parliamentary Elections”, Election Monitoring and Democracy Studies Center.

[7] “Deputatlığa namizədlərin polisə çağırıldığı bildirilir”, Azadlig Radio, 6 February 2020.

[8]“Journalists and observers ‘attacked’ in Azerbaijani parliament elections”, OC Media, 9 February 2020.

[9]“Candidate’s lawyer dies during vote count after ‘disputing result’”, OC Media, 10 February 2020.

[10] Aliyev v. Azerbaijan, European Court of Human Rights, app no(s). 68762/14 and 71200/14, 04/02/2019.

[11] Rasul Jafarov v. Azerbaijan, European Court of Human Rights, app no. 69981/14, 04/07/2016.

[12] “General environment not appropriate for democratic elections, says PACE pre-electoral delegation to Azerbaijan”, Council of Europe News, 24 January 2020.

[13] Resolution 2322 of PACE “Reported cases of political prisoners in Azerbaijan”, 30 January 2020.

[14] “Rapporteur on political prisoners in Azerbaijan deplores the authorities’ failure to implement judgments of the Court”, PACE, 07 January 2020.

[15] “President Ilham Aliyev receives Turkish Foreign Minister Mevlut Cavusoglu”, APA, 6 February 2020.

The post Azerbaijan’s 2020 elections and the ongoing persecution of human rights defenders appeared first on European Human Rights Advocacy Centre (EHRAC).

It is widely recognised that the European Court of Human Rights is under huge pressure to reduce its caseload, currently standing at almost 60,000 cases. To this end, the Court has been increasing the number of cases resolved by friendly settlements and unilateral declarations and in January this year started trialling a new compulsory 12 week non-contentious phase to its procedure. The intention behind this new phase is the early, expeditious and domestic resolution of cases, involving greater ‘burden sharing’ of the caseload with Contracting States. The friendly settlement of cases could justifiably lead to the resolution of many pending cases and has the potential benefit, with proper oversight, of allowing for more specific remedies than may be forthcoming from a final judgment. However, the implementation and conduct so far of this new phase has given human rights lawyers and applicants cause for serious concern.

Friendly settlements have long been a feature of the Court’s procedure and are provided for by Article 39 of the Convention, and Rule 62 of the Rules of Court. Requiring the approval of the Court in accordance with Article 39, friendly settlements are not just a private matter between the parties but involve judicial oversight to ensure that they are compatible with the protection of human rights in the Convention. Before the introduction of the new phase, in the majority of cases the Court at the communication stage simply informed the parties of the possibility of concluding a friendly settlement and left them to it. In some cases within a limited category, mainly relating to the length of proceedings and prison conditions, the Court put forward a specific proposal consisting of an amount it considered appropriate for the resolution of the case. The new phase is rolling this latter approach out across the Convention provisions.

Philip Leach and Nino Jomarjidze (Georgian Young Lawyers’ Association) have previously written about the need for compliance monitoring of undertakings given in friendly settlements and unilateral declarations. This post assesses the trial phase of the new procedure from the perspective of the applicant and their representative.

Selection of cases in which the Court makes a concrete proposal

Limited guidance has been published about the method of the selection of cases in which the Court itself makes a specific proposal for a friendly settlement under this new procedure. To date the Court has publicly confined itself, briefly and vaguely, to indicating the circumstances in which it considers a proposal would not be appropriate: ‘for example cases raising novel issues which have never been examined by the Court or cases where for any specific reason it may be inappropriate to propose a friendly settlement’ (Court’s press release). The European Human Rights Advocacy Centre (EHRAC) has been assured at meetings with Judges and representatives of the Court that the Court would not propose a friendly settlement or accept a unilateral declaration in cases where there is a grave unresolved systemic underlying issues. This accords with the Court’s jurisprudence on unilateral declarations, in which relevant factors to consider when striking out a case on the basis of a unilateral declaration include the nature of the complaints made and  ‘the nature and scope of any measures taken by the respondent Government in the context of the execution of judgments delivered by the Court in any such previous cases, and the impact of these measures on the case at issue.’ (Tahsin Acar v Turkey § 76). There is also, of course, the wording of Article 39(1) of the Convention stipulating that any friendly settlement is made on the ‘basis of respect for human rights as defined in the Convention’.

A February 2019 paper produced by the Registry for the Steering Committee on Human Rights (CDDH), sets out five exceptions to the rule of making a concrete friendly settlement proposal: when an application i) appears to be ‘borderline’ in the light of the Court’s jurisprudence; ii) raises new issues not yet examined; or iii) is politically and/or media sensitive; or iv) where fixing a sum is difficult in view of the potential existence of pecuniary damage requiring complex or speculative calculations; or v) where for specific reasons, notably where respect for human rights so requires, the Rapporteur, President or Chamber do not wish a concrete friendly settlement proposal to be made. Particularly grave or systemic violations are notably absent from this list, unless presumed to fall within this fifth exception.

Despite this, and in the absence of clear published guidelines, in practice there appears to be no coherent method or consistency between the Court’s Sections in the selection of cases in which the Court itself makes a proposal under the new phase. The EHRAC litigates a wide range of cases before the Court against Russia, Ukraine, Georgia, Armenia and Azerbaijan together with partner lawyers from the region. Within our experience the Court has made bare ex gratia proposals with respect to the same Contracting State in a right to life case concerning domestic violence resulting in femicide and a number of state agent ill-treatment cases, but not in a property rights case concerning the confiscation of a tractor. The Court provides no reasoning for its decisions to select (or not) these particular cases as appropriate for a settlement proposal. Factors that should have been considered by the Court include the fact that right to life and torture cases concerning state agent perpetrators raise the most grave human rights abuses; that the State concerned is also facing a number of pending femicide cases, indicating that there may be a systemic underlying issue of protection; and that it has a group of similar state agent violence cases under enhanced supervision by the Committee of Ministers, whose latest decision has identified an ongoing problem of ineffective investigation into state agent ill-treatment. The fact that a property case concerning confiscation of a tractor was not identified by the Court as suitable for a friendly settlement serves to underline the incoherence of the process.

Appropriate settlement

Once the Court decides that a case is appropriate for friendly settlement under the new non-contentious phase, it provides a concrete proposal. Its terms are set out by way of an appended ‘pro forma’ offer letter in the name of the Government Agent and acceptance letter in the name of the applicant’s representative – both requiring only a signature. There is no indication, and certainly no impression given, that this is merely a starting point. Nowhere does the letter set out any guidance for the applicant or Government Agent.

So, what exactly does the Court consider an appropriate settlement in, for instance, a case in which an applicant is brutally beaten by police officers? To date, and without exception, the friendly settlement proposals made by the Court under the new phase that we have seen, including right to life and torture cases, have merely consisted of an ex gratia payment with no acknowledgement of any violations. An ex gratia payment, as lawyers well know, is by definition a no-fault payment that does not acknowledge any causality between the payment made and the injuries suffered or actions that caused them. It therefore does not even constitute compensation. Given that such an offer constitutes the Court’s assessment of what is appropriate in order to resolve the case, this represents a significant departure from its own jurisprudence on sufficient redress. It is the Court’s established law that payment of compensation is insufficient in cases of ill-treatment by state agents and requires an effective investigation leading to the prosecution of those responsible. Without this, the Court reasons, state agents could abuse their position with impunity and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (Jeronovics v. Latvia §105).

The Court has given no explanation as to why it is restricting itself to ex gratia payments. If it considers it is unable to suggest an acknowledgement of violations or appropriate non-monetary undertakings (e.g. to investigate) without an assessment of the merits, it is not clear on what basis it is calculating the sum to be paid by the Government. The CDDH paper did, in fact, suggest the proposal could include relevant undertakings, but this does not appear to have been taken up in the cases we have seen. Since the procedure currently stipulates a simultaneous deadline for the comments of the parties the applicant will generally have to consider the ‘offer’ before the Government has actually made it. As an offer originating from the Court the inescapable signal sent to the applicant is that the Court considers the case not to warrant further consideration; that the payment is not required to be in recognition of any violations; and that no non-monetary provisions, such as undertakings to investigate, are required. It is difficult to conceive that a Government Agent would raise the stakes at this stage by recognising violations or providing onerous undertakings that the Court itself does not require. Without an acknowledgement of a violation and/or an undertaking to investigate, the Committee of Ministers’ supervision of a friendly settlement, which is strictly confined to the terms agreed, is limited to payment of the ex gratia sum regardless of whether the case concerns torture, femicide or enforced disappearance.

It is unclear what the Court will do if the applicant rejects the proposal and the Government submits a unilateral declaration on the same terms, given that those terms are the Court’s own. The CDDH paper proposes exactly this action in cases where the applicant rejects the friendly settlement: ‘the Government can seek to have the application struck out of the list of cases by introducing a unilateral declaration reproducing the content of the friendly settlement declaration’. However, a mere ex gratia payment is contrary to Rule 62A of the Rules of Court, section 1(b) of which requires that: ‘Such request shall be accompanied by a declaration clearly acknowledging that there has been a violation of the Convention in the applicant’s case together with an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures.’ The jurisprudence of the Court has followed and developed this approach (Tahsin Acar § 76). The Court’s information sheet on unilateral declarations provides a list of non-exhaustive criteria which the unilateral declaration must satisfy:

“existence of sufficiently well-established case-law in the matter raised by the application; clear acknowledgment of a violation of the Convention in respect of the applicant – with an explicit indication of the nature of the violation; adequate redress, in line with the Court’s case-law on just satisfaction; where appropriate undertakings of a general nature (amendment of legislation or administrative practice, introduction of new policy, etc.); respect for human rights: the unilateral declaration must provide a sufficient basis for the Court to find that respect for human rights does not require the continued examination of the application.“

It furthermore specifically rejects ex gratia payments as being at odds with a clear acknowledgement of a violation (footnote 7).

As part of the non-contentious phase the Court appears to be taking a more proactive approach to unilateral declarations, directly inviting Governments, if they no longer wish to continue friendly settlement negotiations, to submit a unilateral declaration within a specified time-frame. Such an invitation appears to underline the risk to applicants of their case being struck out should they refuse a friendly settlement. The stricter requirements of a unilateral declaration sit uneasily with the apparent lack of even nominal safeguards for a friendly settlement. The significant difference between a friendly settlement and a unilateral declaration is, of course, that the applicant agrees to the former. The pressure on the Court to reduce its caseload could give rise to the uncomfortable implication that the Court is testing the water at the friendly settlement stage to see if the parties can be persuaded to dispose of the case with a pay-off with no onerous conditions attached. However, while an ex gratia payment might constitute legitimate resolution for the restrictive category of cases it was originally applied to, when rolled out to the most serious human rights abuses it is deeply concerning. The requirement in Article 39 of the Convention, that a friendly settlement be made on the basis of respect for human rights, is not in evidence in our experience of the Court’s selection of cases nor in the ex gratia offers made.

The signal sent to applicants, that recognition of violations is unnecessary in even the most serious cases, has been just as effectively received by Governments in another worrying development. We have seen copycat ex gratia offers made by known repressive regimes in egregious cases in which such a proposal would previously have been unthinkable and in which the Court has not made a proposal. As a result a number of unresolved enforced disappearance cases are being settled with the approval of the Court for an ex gratia payment, no doubt due to the weariness of the applicants and the life-changing sum on offer. This is despite the fact that the impunity of the Contracting State’s agents has been condemned throughout the Council of Europe and remains one of the most intractable and enduring problems for the Committee of Ministers. Does the Court really consider that a pay off without undertakings is compatible with respect for human rights for the unacknowledged abduction, probable torture and murder of one its citizens by the State?

Conclusion

A fundamental aspect of Convention protection is that the Court’s judgments serve not only to decide those cases brought before it but to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to their observance by Contracting States. Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout Convention States (Tahirov v. Azerbaijan, § 37).

The Court indisputably needs to reduce its caseload and an increase in friendly settlements, provided it is in the right cases and on the right terms, could constitute the effective resolution of many of the Court’s cases. However, as Swiss judge Helen Keller observes, friendly settlements have their inherent limits:

“Friendly settlements cannot resolve the Court’s basic problem of a backlog or change the Court’s very mission of as an international judicial body for the protection of human rights and promotion of human rights…nobody would want to equate the ECtHR with a claims tribunal facilitating large numbers of money settlements originating from a country with systemic deficiencies.”

In our experience of the Court’s conduct of the new non-contentious phase concerning cases involving particularly grave or systemic abuses, it is not acting in the interests of human rights; it is not even operating as a compensation mechanism, but is merely facilitating the disposal of cases by expediting a tax on lawlessness.

The post Strasbourg Court’s new non-contentious phase – a tax on lawlessness? appeared first on European Human Rights Advocacy Centre (EHRAC).