Extra-territorial Jurisdiction & Flexible Human Rights Obligations: The Case of Jaloud v. the Netherlands

This guest post was written by Cedric De Koker, Phd Researcher, IRCP, Ghent University.

With its judgment in the case of Jaloud v. the Netherlands, the Grand Chamber of the European Court of Human Rights (ECtHR) has added another chapter to its growing body of case law relating to the extra-territorial application of the European Convention on Human Rights (ECHR) in the context of military operations abroad. The case is interesting for two reasons: first, the Netherlands (and the United Kingdom as an intervening third party) resorted to the often used, but rarely successful strategy of disputing the extra-territorial applicability of the Convention (and thus the admissibility of the claims presented by the applicant). Therefore, the Court had to interpret Article 1 ECHR once again – arguably the most difficult provision of the Convention to apply – and pronounce on whether the events under review fell ‘within the jurisdiction’ of the Netherlands. Second, asked about the scope of the investigative duty under Article 2 ECHR, the Court had to determine whether states have some flexibility in fulfilling their human rights obligations when operating in extraordinary and difficult conditions, such as hostile environments resulting out of armed conflict or occupation, as was the case here. Both issues will be discussed below.

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Mocanu v. Romania: do large-scale human rights violations justify only a mild admissibility test?

This guest post was written by Helena De Vylder, Ph.D. researcher at the Human Rights Centre of Ghent University. Her research focuses on admissibility criteria in regional human rights systems.

Mocanu and others v Romania fits in a series of cases in which the Strasbourg Court needed to deal with grave and large-scale human rights violations, happening before the entry into force of the Convention. The events happening before the entry into force are undoubtedly not subject to the temporal jurisdiction of the Convention. The admissibility of complaints concerning the investigative measures and proceedings after the coming into force in the contrast has been accepted by recent case law (and here). Mocanu further refines this case law by dealing with particular circumstances.

In this case, the Court had to deal with the investigation and the length of proceedings which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, Ms Mocanu’s husband – the first applicant’s husband – was killed by gunfire and Mr Stoica – the second applicant – was arrested and ill-treated by the police. The criminal proceedings are still pending in respect of the first applicant. The relevant investigation in respect of the second applicant was terminated by a final judgment in 2011. The applicants claim the proceedings did not live up to the standards put forward by the procedural aspect of article 2 and 3.

In contrast to the merits, the admissibility of the case is less straightforward. The admissibility issues relate to the jurisdiction ratione temporis and the exhaustion of domestic remedies. Continue reading

Stensholt v. Norway: Why single judge decisions undermine the Court’s legitimacy

This guest post was written by Helena De Vylder. Helena is a Ph.D. Researcher at the Human Rights Centre of Ghent University. Her research concerns admissibility criteria in regional human rights systems.

Apart from the new admissibility requirement – significant disadvantage –, the 14th Protocol contains a number of procedural changes. The competences of chambers and committees have been changed and single judge-formations (assisted by a non-judicial rapporteur) were created and given the competence to take final decisions regarding the admissibility of cases where such a decision can be taken without further examination.

The yearly statistics available on the ECHR-website (Annual Report 2013) suggest that the 14th Protocol did a wonderful job, as regards the speeding up of procedures. The backlog of the ECtHR has decreased enormously in the latest years and the renewed efficiency of the Court thanks to the filtering-mechanisms has been applauded. The single judge-formations contribute massively in this regard. However, the commented case sheds light on the other side of the decisions issued by single judges. These decisions are not published, but we had the opportunity to access one of them when an applicant who had obtained an unsatisfactory decision contacted the Strasbourg Observers. Continue reading

UN immunity overrides ius cogens norms of international law

This guest post was written by Bella Murati, Ph.D. Candidate at the Human Rights Centre of Ghent University.

 

July 2013 marks the 18th anniversary of the Srebrenica massacre, when in the period of 13-19 July 1995, more than 8,000 unarmed Bosnian Muslims were deliberately killed by Bosnian Serb forces. The case itself has been termed by both the International Court of Justice (in the Bosnia and Herzegovina v. Serbia and Montenegro case) and the International Tribunal for former Yugoslavia (in the Krstić case) as an act of genocide.

Although Serbian leaders (political and military) bear the greatest responsibility in this case, a certain amount of responsibility rests with the Dutch Battalion who at that time was serving with the UN Protection Force, as well as with the troop contributing country, in this case the Netherlands. Both actors have been accused of failing to protect civilians which were entrusted to them by the United Nations and, as such, of failing in their duty to prevent genocide.

Recently, in Stichting Mothers of Srebrenica and Others v. the Netherlands the European Court of Human Rights (ECtHR; the Court) refused to entertain a claim launched against the Netherlands by relatives of victims of the Srebrenice massacre. The Court relied on the immunity of the United Nations to reject the application as manifestly ill-founded. The ECtHR decision will be scrutinized here.

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Crossing the red line: application of the ‘significant disadvantage’ criterion in an Article 5§3 case

Recently, Judges De Gaetano and Ziemele did not hide their bewilderment with the Latvian government’s argument in favor of the application of the ‘significant disadvantage’ admissibility criterion in the case of Bannikov v. Latvia. Continue reading

Manifestly ill-founded … by a majority

In this post I want to flag three inadmissibility decisions, delivered by the Court’s Chambers over the past few months, in which the applicant’s claims are declared manifestly ill-founded, by a majority. Like so many inadmissibility decisions, the three summarised below may have easily passed under the radar of many of our readers. These particular decisions are nevertheless worth pointing out, because they raise a number of important questions and concerns. How manifestly ill-founded can a claim really be if a Chamber of seven Judges reaches that conclusion by a majority? Moreover, what does “by a majority” mean in these cases? How many Judges disagreed? And what did their disagreement entail? Did the Judge(s) in the minority consider the claim worthy of an examination on the merits? Or were they of the opinion that the Convention rights of the applicant had been violated?

None of these questions can be satisfactorily answered, for two reasons. Firstly because – unlike in judgments – no information is given on the division in the Chamber that delivered these decisions. The decision merely states “manifestly ill-founded, by a majority”, without indicating how many Judges disagreed. Secondly, because there is no room for separate opinions in decisions. We can thus not know why the Judge(s) in the minority disagreed on the finding that the claim was manifestly ill-founded. As a result of both factors, we are left puzzled as to what “manifestly ill-founded, by a majority”, a seemingly contradictory statement, might mean.

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Should the Court fix leaking roof problems?

Is the roof of the house in which you own a flat leaking? Is there a delay in repairs? Do you have to repaint the walls? Is there a delay of enforcement of decisions that ordered the repairs? These now seem to be valid questions for your potential human rights violation.

In the case of Bjelajac v. Serbia the Court found a violation of Article 1 of Protocol No.1 due to unjustified delay in enforcing a national court’s ruling. The ruling in substance was about a leaking roof of a house in which the applicant owned a flat. Continue reading