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