Positive Obligations in Crisis

Dr Natasa Mavronicola is Reader in Law at Birmingham Law School, University of Birmingham. She has written extensively on the right to life and the right not to be subjected to torture or to inhuman or degrading treatment or punishment. She is co-editor of Lavrysen & Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR, forthcoming with Hart Publishing (2020).

On the flip side of rights are wrongs. It is now indisputable that the State may wrong us as a matter of human rights law not only by actively mistreating us, but also by failing to protect us from certain harms. The European Court of Human Rights (ECtHR) boasts a formidable jurisprudence on positive obligations borne by States to protect persons within their jurisdiction from grave threats to our life or physical or mental integrity. It is important to understand and apply these appropriately to the current crisis, particularly as positive obligations to protect life are being actively invoked, in the context of the coronavirus pandemic, to justify extensive (coercive) measures across Council of Europe States.

In this short piece, focusing on positive obligations under the European Convention on Human Rights (ECHR), I want to underline the following: (a) the State bears positive obligations to protect, rather than coerce; (b) the State’s positive obligations do not extend to duties to act unlawfully under the Convention; and (c) positive obligations must be responsive to, and entail ancillary obligations to determine, the relevant context and risk. Continue reading

Grand Chamber limits the scope of Article 3 for non-state ill-treatment

By Nicole Bürli, Human Rights Advisor of the World Organisation against Torture (OMCT)[1]

On 25 June 2019, coincidently the eve of the international day in support of victims of torture, the Grand Chamber of the European Court of Human Rights limited the scope of Article 3 ECHR. In the case of Nicolae Virgiliu Tănase v. Romania, the Court found that the investigations into a serious traffic accident were compatible with Articles 2, 8 and 6 ECHR and that Article 3 ECHR was not applicable. The latter finding is a change of jurisprudence as the Court stated that Article 3 (procedural limb) ECHR is only applicable to non-state ill-treatment if inflicted intentionally. This is problematic for a number of reasons and the subject of this post. Continue reading

Volodina, Article 3, and Russia’s systemic problem regarding domestic violence

By Corina Heri, postdoctoral researcher at the University of Amsterdam

‘When he kills you, come and see us’, police reportedly told the applicant in Volodina v. Russia before proceeding to ignore her allegations of domestic violence. On 9 July, the Third Section found that the respondent State had violated its positive obligations under Article 3 and, applying a gender-based approach, held that Russia has a large-scale structural problem when it comes to domestic violence. This post discusses the Chamber’s findings under Articles 3 and 14 ECHR, the question of whether this treatment constituted torture, and how to test compliance with the obligation to prevent ill-treatment. Continue reading

Ill-treatment in the war against terror: the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania

By Christina Kosin, Ph.D. Candidate and Academic Assistant at the German Police University

On 31 May 2018 the European Court of Human Rights (ECtHR) ruled in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania that the Contracting States Romania and Lithuania violated multiple provisions of the European Convention on Human Rights (ECHR), among others the substantive and procedural limb of Art. 3 ECHR – the prohibition of torture and inhuman and degrading treatment or punishment. Neither in Al Nashiri nor in Abu Zubaydah did public authorities from Romania or Lithuania themselves inflict ill-treatment on the applicants who were under suspicion to be involved in terrorist activities. The Strasbourg Court found a substantive breach of Art. 3 ECHR on the basis of the conduct of a third party, the Central Intelligence Agency of the USA (CIA), at secret detention sites within the jurisdictions of Romania and Lithuania. The ECtHR established “beyond reasonable doubt” that Romania as well as Lithuania knew of the CIA’s activities in their respective territories at the material time. For this reason, it considered that Romania and Lithuania had acquiesced in and consented to the High-Value Detainee (HVD) Programme of the US and therefore held them responsible for the inhuman treatment suffered by the applicants at the hands of US officials. Continue reading

IRELAND V THE UK AND THE HOODED MEN: A MISSED OPPORTUNITY?

Written by Dr Alan Greene, Assistant Professor at Durham Law School*

In Ireland v The United Kingdom, the European Court of Human Rights (ECtHR; the Court) in Chamber formation refused to revise its 1978 judgment regarding whether British security forces’ use of the so-called ‘five techniques’ of interrogation during the conflict in Northern Ireland amounted to torture under Article 3 ECHR.  In so doing, the ECtHR missed an opportunity to correct an historic wrong; one that has had a pernicious effect across the globe. In contrast, the dissenting judgment of Judge Siofra O’Leary strikes a more persuasive balance between legal certainty and the public interest in holding a state to account for ‘a serious violation of the European public order.’ Continue reading

The Grand Chamber, universal civil jurisdiction for torture and Naït-Liman v. Switzerland

By Corina Heri, postdoctoral researcher at the University of Amsterdam

On 15 March 2018, the ECtHR’s Grand Chamber issued its first judgment of the year. The case in question is Naït-Liman v. Switzerland, and it concerns the right of a refugee to seize a Swiss court with a civil claim for damages resulting from torture allegedly suffered in a third State, Tunisia. Specifically, the Grand Chamber examined whether – as a forum of necessity or as a matter of universal civil jurisdiction – the Swiss courts were required by Article 6 § 1 ECHR to examine the applicant’s civil claim for compensation against Tunisia. Like the Chamber, the Grand Chamber found that this was not the case, and considered that the Member States are under no international law obligation to provide universal civil jurisdiction for torture. Continue reading

A Casualty of Formalism: The Application of the Six-Month Rule in Kamenica and Others v. Serbia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

On 27 October 2016, the Court published the Third Section’s decision in Kamenica and Others v. Serbia. That case concerns the alleged ill-treatment of 67 persons who fled Bosnia and Herzegovina during the conflict that broke out there in 1992 and who were subsequently interned in a Serbian detention camp. The Third Section applied the six-month rule to the case, finding that it had been brought out of time. Its decision raises questions about the strictness of the six-month rule and the application of a statute of limitations to grievous alleged violations of Article 3 ECHR. Granted, the application of a rigid time limit for bringing applications to Strasbourg fosters certainty and ensures that the proceedings before the Court take place within a useful time frame. However, decisions such as this one indicate that, in certain types of cases – here, a particularly grievous one that stood to be investigated in a post-conflict scenario – the Court’s emphasis of a strict time limit can seem decidedly formalistic.

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The Cestaro v. Italy Case and the “Prohibited Purpose” Requirement of Torture

This guest post was written by Christina Kosin, LL.M. (Edinburgh) and Ph.D. student and academic assistant within the Network of Excellence for the Law of Civil Security in Europe at the German Police University in Münster, Germany. See also the post she wrote for EU Law Analysis.

The main argument of this comment is that the recent Cestaro v. Italy case shows (once again)[1] that the “prohibited purpose” requirement of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment. This comment is a reaction to the presumption by some legal scholars that the prohibited purpose criterion, explained below, is the most important element of torture and the only element which distinguishes it from other ill-treatment. The comment provides a short introduction to the case and elaborates on the issue at stake. Then, the facts of the Cestaro case are presented followed by a brief summary of and commentary on the Court’s main arguments with regard to the material breach of Article 3 of the European Convention on Human Rights (ECHR).

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Landmark European Court Decision Sends Clear Message on Ending Impunity for European Complicity in CIA Torture

This guest post was written by Amrit Singh. Amrit Singh is Senior Legal Officer for National Security and Counterterrorism at the Open Society Justice Initiative and acted as counsel in al Nashiri v. Poland.

In the woods, about 160 kilometres north of Warsaw, in a village called Stare Kiejkuty, sits a Polish intelligence base that was used during World War II by German intelligence officials and later by the Soviet military. More recently, during 2002 and 2003, in a joint operation with the Polish authorities, the CIA secretly imprisoned, tortured and ill-treated Abd al Rahim al Nashiri and Abu Zubaydah on that base. There, in a secluded villa hidden from sight, CIA interrogators subjected our client, al Nashiri, to mock executions while he stood naked and hooded before them; to painful stress positions that nearly dislocated his arms from his shoulders; and to threats of bringing in his mother to sexually abuse her in front of him.

On July 24, 2014, the European Court of Human Rights became the first Court to adjudicate through two cases–al Nashiri v. Poland, and Husayn (Abu Zubaydah) v. Poland–the flagrant rule of law violations associated with this joint operation.

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ECtHR Rules that Police Officers Can Slap Suspects in the Face Without Contravening Article 3 ECHR: Bouyid v. Belgium

Recently, the European Court of Human Rights failed to condemn Belgium for two incidents in which police officers slapped suspects of foreign origin – including a minor – in the face during police questioning in relation to trivial affairs. The Court specifically ruled that a one-time slap in the face did not, under the specific circumstances of the case, meet the threshold for applicability of art. 3 ECHR. Although the Court condemned the police officers in moral terms, in terms of human rights law their behaviour was apparently completely acceptable. In this post I will argue that the unanimous ECtHR ruling dramatically falls short of what one might expect from a human rights court.

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New Article: ‘Conflicts between Absolute Rights: A Reply to Steven Greer’

I am very pleased to announce the publication of my article ‘Conflicts between Absolute Rights: A Reply to Steven Greer’ in the latest issue of Human Rights Law Review.

The article can be found here.

This is the abstract:

Can absolute rights conflict? Is it permissible to torture a person to save others from torture? And what can judges learn from trolleys? In this article, presented as a reply to an article by Steven Greer, I investigate the above questions in the context of the case law of the European Court of Human Rights. Drawing on Gäfgen v Germany, I construct a hypothetical case of conflicting absolute rights, which cannot be resolved by the existing strands of legal reasoning in the case law of the Court. Instead, I argue, recourse must be had to moral reasoning. In discussing one of moral philosophy’s deepest conundrums—the Trolley Problem—I rely on the distinction between negative and positive obligations and between direct and indirect agency to unravel the dilemma. Translating the moral argument into legal reasoning, I conclude that in cases of conflicts between absolute rights, negative obligations principally trump positive obligations.

Khodorkovskiy in a cage

In the case of Khodorkovskiy v. Russia the Court reaffirmed that placing a person in a cage during a trial if the person is not predisposed to violence or there are no serious security threats, is degrading and violates Article 3.

The Court noted that the practice of placing a criminal defendant in a sort of a “special compartment” in a court room existed and probably continues to exist in several European countries (Armenia, Moldova, Finland). In some countries (such as Spain, Italy, France or Germany) the accused are sometimes placed in a glass cage during the hearing. Such a practice has occasionally been examined in the context of the guarantee of the presumption of innocence under Article 6 § 2 of the Convention (see Auguste v. France, Meerbrey v. Germany). In recent years the Court has begun to examine the practice also from the standpoint of Article 3 of the Convention. Thus, in the case of Sarban v. Moldova the applicant was brought to court in handcuffs and held in a cage during the hearings, even though he was under guard and was wearing a surgical collar. A violation of Article 3 of the Convention was found in a case where the applicant was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia). Handcuffing of the applicant gave rise to a violation of Article 3 of the Convention also in a situation where no serious risks to security could be proved to exist (see Henaf v. France, Istratii and Others v. Moldova).

I was wondering whether the experience of a person when put in the cage is of such a degrading nature to be considered under Article 3? Continue reading

R.R. v. Poland: of reproductive health, abortion and degrading treatment

The Court has released an important judgment in the area of reproductive health, R.R. v. Poland.  It is also a very interesting judgment, as it raises a complex set of issues connected to different fields of law. Our team had a lively debate about this case yesterday. It became clear that there are various ways of looking at the Court’s reasoning: gender, health rights and freedom of religion are all perspectives that can be brought to bear on this case. With this post I would like to put my first thoughts on paper. The focus will be on the Court’s reasoning under Article 3 (prohibition of inhuman or degrading treatment).

Facts
The facts of R.R. v. Poland make for sad reading. Continue reading

Forced exposure to passive smoking violates human rights

Does exposure to smoking by other people violate human rights? This is a question that merits serious consideration. One context in which it has been raised is smoking in the presence of children (see the campaign of the Flemish Anti-Cancer League on this subject, with a link to my presentation on the subject). This raises obvious issues with respect to children’s right to health. I have argued that we might even consider smoking in front of children as a ‘harmful cultural practice’ from the perspective of children’s health, obliging states to take steps (for example through awareness raising) towards its abolition.

The right to health of course does not figure in the European Convention on Human Rights. Yet health-related issues may be addressed in the context of other provisions, in particular articles 3 and 8. In the recent case of Florea v Romania the European Court suggests that forced exposure to passive smoking violates article 3.

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‘Strong women don’t need asylum’ (the European Court on FGM)

Summertime in rainy Belgium! Relaxed after a sunny family holiday abroad, with no lectures or meetings on the agenda, I finally find some time to write a blog entry.  Only to realize that it is August, and that the judges at the European Court of Human Rights are also entitled to their holidays.  This means: no new cases. And among the nearly 200 judgments the Court delivered in July, the other Strasbourg Observers bloggers have already discussed the most interesting ones.

That is why I take the liberty to discuss a 2007 case. I happened to be going through all article 3 cases since 2005, for the update of an ECHR Commentary .

By the way, this is not a an exercise I recommend to anyone. The article 3 case law, especially on prison conditions, is a true cabinet of horrors. It makes one despair of whether there might ever be something like ‘European civilization’. ..

Anyway, I came across the inadmissibility decision in the case of Collins and Akaziebie v. Sweden, which I had never thoroughly read before. Continue reading

Practicing ill-treatment

In Davydov and others v. Ukraine, the European Court of Human Rights was confronted with particularly disturbing facts. The case concerned ill-treatment committed by special forces on prisoners during training exercises. Not during an actual emergency situation of riot in the prison. No, during exercises. Twice.

The prisoners were not warned about the exercises. They were beaten, struck, hit, stepped upon, forced to strip naked and humiliated during the exercises. They did not receive any medical assistance for their injuries and their complaints were not taken seriously. Moreover, some of them were threatened to withdraw their complaints to the Court and were punished through solitary confinement for having submitted their application.

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Gäfgen v. Germany: threat of torture to save a life?

In Gäfgen v. Germany , the Grand Chamber of the European Court of Human Rights was confronted with a difficult issue: can police officers threaten to torture a suspect if they believe this may save the life of an innocent child? The Court clearly answered that they cannot. However, it did leave what could at first sight be interpreted as an opening for such conduct: it held that the Convention had not been violated by the domestic decision declaring the evidence obtained as a result of the threat of torture admissible.

Gäfgen v. Germany concerned the following facts. A man had lured a child into his flat, killed him through suffocation and hidden the body. Afterwards he demanded a ransom of the parents who were unaware that their child had already been murdered. They paid the ransom after which the police followed and arrested the suspect. During his interrogation the police, acting under the assumption that the child was still alive, threatened the suspect with considerable suffering if he persisted in refusing to disclose the child’s whereabouts. The suspect subsequently confessed to the crime and disclosed the whereabouts of the child’s body. The German courts, having established that the confession of the suspect had been extracted under duress, did not allow it as evidence during the ensuing criminal trial. However, they did declare the evidence obtained as a result of the ill-treatment, including the child’s body and the tire tracks found at the dumping site, admissible. During the trial the suspect confessed again, despite having been made aware of his right to remain silent and of the inadmissibility of his earlier confession as evidence.

This case offers clear similarities to the ticking time bomb scenario that certain politicians, philosophers and lawyers use to claim that it is justified to torture one person, someone who is suspected of having planted a bomb somewhere, in order to save the lives of – possibly thousands of – others. This case also shows that too many factors of such a scenario are uncertain and that it can thus never take hold in reality.

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When a Discrepancy is Not Necessarily a Discrepancy

Today I would like to discuss one particular aspect of a recent case, Biçici v. Turkey. This case concerned the arrest of Ms. Biçici, while she was participating in a peaceful demonstration, and her alleged ill-treatment during the arrest. The European Court of Human Rights found in favour of Ms. Biçici, ruling that the intervening authorities had used disproportionate force in hastily responding to the peaceful demonstration. The Court also found the intervention itself to be unnecessary and disproportionate. Both articles 3 and 11 had thus been violated. But it was close. The ruling on art. 3 was delivered by a narrow majority of 4-3.

What I would like to discuss is the Court’s use of the elements of proof adduced by the applicant. I am going out on a limb here, not being a medical expert. I hope one of our readers with specific medical expertise could either confirm or refute my argument.

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‘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]  

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R.C. v. Sweden: the burden of proof in asylum cases

Sweden is recently convicted by the European Court of Human Rights in the CASE OF R.C v. SWEDEN concerning an Iranian asylum seeker. On 9 march 2010 the Court issued a judgment where it held by six votes to one that the deportation of the applicant to Iran would consist a violation of article 3 ECHR. Judge Fura expressed a dissenting opinion.

R.C. submitted to have participated in a demonstration in 2001 against the Iranian regime following which he had been arrested and tortured and detained for fourteen months. Although he had never been formally tried, he appeared several times before a revolutionary court, where a decision had to be made about the maintenance of his detention. During one of these religious hearings, the applicant managed to escape with the help of a friend. The applicant submitted also that he had been subjected to torture during his detention. He provided a medical certificate of February 2005 carrying the doctor’s conclusion that the injuries found on his body could well originate from torture. When R.C. arrived in Sweden in 2003 he immediately requested asylum near the Swedish Migration Board. This request was refused as the national authorities doubted the credibility of his account of events underlining that revolutionary courts were generally not open to the public, that the applicant had not substantiated his allegations and found that there was no proof that he would be tortured or ill treated if he returned to Iran. The appellate courts also rejected his asylum request.

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