‘Unluxury problems’ of Europe

In a book published in 2003 Manfred Nowak wrote: “The OAS [Organization of American States] in comparison [with the Council of Europe] is composed of a wide range of states including both the richest industrialized countries (United States and Canada) and the poorest countries of the world (e.g. Haiti), as well as democracies and military dictatorships that covered a good part of the entire hemisphere in the 1970s. Consequently, the human rights bodies of the OAS have always had to deal with far more than Europe’s ‘luxury problems’, such as the excessive duration of legal proceedings in Italy. Historically, and presently, OAS human rights bodies are challenged by widespread poverty, systematic torture and assassination of political dissidents, enforced disappearances and much more.”[1]  

It is impossible to draw a distinction like that from the Court’s case-law of the year 2009. The Court found 269 violations of Article 2 and 3 plus 145 violations of those articles because of lack of effective investigations. This makes it 1/6 of all the violations the Court found that year.[2]  

 The violations of Article 2 and 3 were conducted by 22 countries, violations ranging from 1 to 219 per country. Among these countries are the founding countries of the Council of Europe (Belgium, France, Italy, Greece), countries that joined the organization in the period of 1950-1988 (Austria, Spain, Turkey), countries that joined the organization in 1990s (Estonia, Latvia, Georgia, Croatia, Bulgaria, Albania, Moldova, Poland, Romania, Russia, Slovakia, Slovenia, Ukraine), and countries that joined the organization after the year 2000 (Armenia, Azerbaijan).[3]

 It is true that the bulk of these violations are done by Russia and Turkey. But to our mind, there is no reason to point out Russia or Turkey and thus steal the attention from, for example,  Italy or Poland with their 15 violations each, Belgium, France and Austria – 2 violations each. Every case counts dearly when we talk about article 2 and 3. We should also take into account that these numbers represent only one year of the Court’s jurisprudence. There were and will be more.

Once more – every case counts! Take your time and read this one example of what a family had to experience in 2003 and now live with it in their memories from day to day. From the facts of the case of Dzhabrailovy v. Russia:

The first applicant is the brother of Valid Dzhabrailov, the second and third applicants are respectively his mother and sister. According to the applicants, they were all at home on 16 February 2003 when, at about 7 a.m., a group of armed masked men in camouflage uniforms arrived at their gate with several motor vehicles. The men broke into the house and dispersed into different rooms without identifying themselves or producing any documents. They woke up violently all applicants threatening to shoot them if they moved. Then they forced the two brothers to the floor, handcuffed them and blindfolded Valid Dzhabrailov. Then they took their passports, beat them and dragged them outside and onto a military vehicle after which they drove away.

When they arrived at the point of destination, the two brothers had plastic bags put over their heads and were then forced to crawl into a cemented basement, where they were left cold and bleeding in separate cells. Aslan could hear from his cell his brother, detained in the same building, scream when interrogated. Aslan himself was also repeatedly beaten severely while interrogated and was not given any food or drink during two days of his detention. He was pressured to confess to being involved in an illegal armed group.

On 18 February 2003, Aslan was taken out of the basement, a plastic bag over his head, into a military car where he felt the cold dead body of his brother on the floor. The two brothers were driven to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny. One of the men shot Aslan in the head following which the two brothers were thrown into a pit under a piece of a construction block. The men then laid explosives on Aslan, placed Valid’s body on top, lit the fuse and drove away.

Aslan, still alive but having passed for dead, managed to set himself free and throw the explosives away before they blew up. He then ran out into the street and stopped the driver of a passing car who drove him home.

Valid’s body was discovered on 18 February 2003 by the applicants on the same place where Aslan had left it. According to the applicants, it bore signs of torture; in particular his palms and feet were crushed and the head was hardly recognisable. He was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities. A medical statement and a death certificate were issued confirming his death.

The Government did not challenge the main facts as presented by the applicants. The Court found two violations of Article 2 (including an ineffective investigation), violation of Article 3, violation of Article 5, violation of Article 13 in conjunction with Article 2.

By Saïla Ouald-Chaib and Maris Burbergs


[1] Nowak M., Introduction to the International Human Rights Regime, Martinus Nijhoff Publishers, 2003, p.190.

[2] See: Table of violations 2009, available at: http://www.echr.coe.int/NR/rdonlyres/E8F73EC8-AF6A-4205-BAF2-F6043F67F651/0/Tableau_de_violations_2009_ENG.pdf (consulted on 27 May 2010).

[3] Ibid.

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