August 04, 2014
This guest post was written by Laura Van den Eynde, Doctoral Researcher at Université libre de Bruxelles. (*)
On 17 and 24 July 2014, the European Court of Human Rights decided three cases, one against Romania concerning the death of a mentally disabled and HIV-positive young Roma and two other cases against Poland concerning the detention and transfer of terrorist suspects who were subjected to torture. Beyond the fact that the cases involve particularly shocking human rights violations and that the judgments are quite long, what else would they have in common? As will be demonstrated hereunder, these cases would not have been decided – or decided with that information at hand – if there hadn’t been civil society organizations caring to denounce and document the human rights violations at stake.
Shortly before dying alone at the hospital, Valentin Câmpeanu was visited by staff of the Center for Legal Resources (« CLR »), a Romanian NGO, which, among other activities, monitors residential centers for persons with disabilities. When made aware of the young man’s death, the NGO took various steps and lodged complaints requesting criminal investigations on the circumstances of the death of Câmpeanu.
The CLR, acting on behalf of Mr Câmpeanu, complained before the ECtHR that he had been unlawfully deprived of his life as a result of various State agencies’ actions and failures to act, that he had been subject to inhuman and degrading treatment and that there had been no effective remedy regarding suspicious deaths in psychiatric hospitals. The CLR was represented by a lawyer affiliated with Interights, a London-based NGO.
Many third-party comments were received, illustrating another important and growing phenomenon: the submission of amicus curiae briefs by NGOs. Human Rights Watch, the Euroregional Center for Public Initiatives, the Bulgarian Helsinki Committee and the Mental Disability Advocacy Center submitted comments and the Council of Europe Commissioner for Human Rights exercised his right to intervene in the proceedings. The third-party interveners brought factual and international legal material to the Court and argued that the application by the CLR should be admitted by highlighting the highly problematic access to justice for people with disabilities. Granting NGOs legal standing would be in line with the case law of many other tribunals and would avoid impunity. Indeed, not fitting neatly in one of the narrow categories of ‘direct victim’, ‘indirect victim’ or ‘potential victim’, the issue of standing of the NGO was debated and the most important part of the judgment thus dealt with it. The Court ruled that
… in the exceptional circumstances of this case and bearing in mind the serious nature of the allegations, it should be open to the CLR to act as a representative of Mr Câmpeanu, notwithstanding the fact that it had no power of attorney to act on his behalf and that he died before the application was lodged under the Convention. To find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level, with the risk that the respondent State might escape accountability under the Convention as a result of its own failure to appoint a legal representative to act on his behalf as it was required to do under national law … (para. 112)
The submissions by the civil society organizations documented the situation of HIV children in Romania, referred to States’ obligations to protect life and cited case law of the Inter-American Court or UN reports. They were even summarized in the merits analysis by the Court, which unanimously found a violation of Article 2 in both its substantive and procedural aspects and a violation of Article 13 in conjunction with Article 2 of the Convention.
A separate comment of this case would be needed to analyze the standing ruling more in detail, and in particular the vehement critic at the Court’s approach to standing in this case made by Judge Pinto de Albuquerque in his concurring opinion. The issue of standing of NGOs is an old one – involving both technical questions as well as political and more philosophical ones – but remains unsettled until this day.
Here, suffice is to conclude that without the actions taken by the CLR, this case would most probably not have been decided by the Court, and that the judges received information from other mobilized NGOs, both with regard to the standing question as to the merits.
The extraordinary renditions cases, concerning the detention and rendition of terror suspects by the Polish authorities to the CIA, are also extremely enlightening on the roles played by NGOs.
Al-Nashiri, a Saudi Arabian national currently detained in Guantanamo, was represented before the Court by three lawyers affiliated with the Open Society Justice Initiative based in New York. Abu Zubaydah, a stateless Palestinian also detained in Guantanamo, was represented among others by three lawyers of the NGO Interights, based in London.
In the long applications (available here and here), a lot of information was drawn from sources gathered by civil society organizations all over the world. In the case of Al-Nashiri, third-party comments were submitted by the Helsinki Foundation for Human Rights, the International Commission of Jurists and Amnesty International, as well as from the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism. They supplemented the Court with factual data and touched upon the issue of enforced disappearances and diplomatic representations. The joint amicus curiae brief submitted by Amnesty International and the International Commission of Jurists in Abu Zubaydah mainly elaborated on the international legal principles of State responsibility and on the right to truth.
It is stunning to see how the roles of NGOs can be witnessed throughout the Court’s judgments, among others in the establishment of the facts, to which Poland did not cooperate. For example, regarding the secret transfer of the detainees to Poland, official documents have been disclosed by the Polish Border Guard to the Helsinki Foundation for Human Rights, which confirm the flight landing. In the US, a federal lawsuit was filed by the American Civil Liberties Union against the identified international flight service provider, but the case was dismissed on the basis of ‘state secret privilege’. The flight data later procured by a Council of Europe report was subsequently analyzed by the Center for Human Rights and Global Justice, a New York University School of Law clinic.
Regarding the general knowledge of the rendition program and the concerns as to human rights violations, the applicants and third-party interveners submitted a considerable number of reports and opinions of international governmental and non-governmental organizations, as well as articles and reports published in media, which raised concerns about alleged secret detentions and ill-treatment in US-run detention facilities. Among the sources summarized by the Court there is a statement by the International Rehabilitation Council for Torture and memoranda and reports from Amnesty International and Human Rights Watch. Some of these early reports had actually spurred the Council of Europe to launch an investigation of the allegations. But what is also interesting is that this information serves to show that these issues were discussed in international and Polish media and were thus ‘largely in the public domain’, demonstrating Poland’s knowledge of the treatment to which captured terrorist suspects were subjected. The testimonies of the detainees on interrogations techniques have been collected by the International Committee for the Red Cross and the leaked report has been further disseminated through the ACLU’s website, which was even quoted by the Court.
The Court unanimously found a violation of Article 3 of the Convention in its procedural and substantive aspects, a violation of Articles 5, 8, 13, 6§1 of the Convention and a violation of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention on account of the transfer of the applicant despite the existence of a real risk, for Abu Zubaydah, that he could face a flagrant denial of justice and for Al-Nashiri, that he could be subjected to the death penalty.
Such examples are more numerous than we might think, and more and more there is an interest for what happens ‘before’ or ‘behind’ the ECtHR’s rulings (the Center hosting this blog is a good example thereof). Although the academic literature is often silent on these activities, these recent cases make clear that human rights NGOs fulfill a panoply of missions, which are found intertwined with the establishment of the facts and the litigation as such before the Court: fact-finding, data collection, information sharing, legal analysis, whistleblower function, cooperation with human rights bodies such as the CoE, drafting and publication of reports later discussed in the press and in the public opinion, advocacy, support to victims and representation of applicants, etc.
The NGO action in the abovementioned cases ultimately brought to light the States’ violations of various fundamental rights, but these cases also show how difficult it can be for these organizations to obtain information at the domestic level or even convince the European Court to admit a case they bring. Despite their role, none of the three judgments makes even a short mention of the important role they played, as it was sometimes noticed in previous cases. This would be all the more welcome as the existence of civil society organisations remains fragile: the best example (and sad irony) is that the applicants in Câmpeanu and Abu Zubaydah were represented or counselled by lawyers of Interights, a renown human rights organisation which closed down last May due to lack of funding.
(*) Laura Van den Eynde is a Research Fellow (F.N.R.S.) at the Center for Public Law – Université libre de Bruxelles. Her Ph.D. research focuses on the relationships between human rights NGOs and jurisdictions and the influences these organizations have on judicial dialogue.
 Before the European Court of Human Rights Al-Nashiri has a pending application against Romania, Appl. No. 47848/08 and Abu Zubaydah against Lithuania, Appl. No. 46454/11. Al-Nashiri is also involved in a pending US military commission trial.
 See for more on this: Laura Van den Eynde, “An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights”, Netherlands Quarterly of Human Rights, vol. 31/3, 2013, pp. 271-313.
 James Goldston, who has extensively written about the use of strategic litigation (in particular in the European context), Rupert Skilbeck and Amrit Singh, a former ACLU staff attorney.