Committee of Ministers on Ukraine

The Committee of Ministers of the Council of Europe has earlier today expressed solidarity with Ukraine and its people in these uncertain times. It also emphasized :

the importance of maintaining efforts towards finding a political solution in the country and the commitment of its 47 governments to the peaceful settlement of disputes and the full respect of the territorial integrity, unity and independence of Ukraine.
… reforms undertaken in Ukraine should be conducted in an all-inclusive manner, fully respect the principle of the rule of law and comply with the country’s commitments to the Council of Europe, the European Convention on Human Rights and the other Council of Europe conventions to which Ukraine is party, in particular the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages.

Tymoshenko v Ukraine

The European Court of Human Rights has on 30 April 2013 delivered judgment in the case of Tymoshenko v Ukraine (49872/11) and unanimously found that Ukraine violated Article 5 § 1 (right to liberty and security); Article 5 § 4 (right to a speedy review of the lawfulness of detention); Article 5 § 5 (right to compensation for unlawful detention); and Article 18 (limitation on use of restrictions on rights) in conjunction with Article 5; of the European Convention on Human Rights. More specifically, it held :

298. … when it comes to allegations of political or other ulterior motives in the context of criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention has been ordered (§ 108). However, like in the cited case, the Court discerns a number of specific features of the applicant’s pre-trial detention which allow it to look into the matter separately from the more general context of the allegedly politically motivated prosecution of the applicant as an opposition leader by instigating several criminal charges after the change of power and before the Parliamentary elections…
300. … the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.
301. The Court considers this sufficient basis for finding a violation of Article 18 of the Convention taken in conjunction with Article 5.

As it has been widely reported, Mrs Tymoshenko was released from hospital on last Saturday. This judgment is now of the few rendered against Ukraine which have been at least partially executed. It remains to be seen whether remaining judgments against Ukraine will be also so speedily executed.

The opening of the ECtHR’s judicial year

The European Court of Human Rights 31 January 2014 formally celebrated the opening of the judicial year with the official ceremony. The President of the Court, Dean Spielmann delivered a speech, where he emphasized one of the open wounds of the system of European Convention of Human Rights – the execution of the Court’s judgments. He inter alia stated the following :

»Our Court – and this brings me back to the point I made just now – was aware of the responsibility that it had to assume. But that responsibility goes hand in hand with its duty to ensure compliance with the European Convention on Human Rights throughout Europe. The role of a Court such as ours, unless it were to depart from its intended mission, is not to be popular. Sometimes it is even necessary to cause displeasure. In the Europe of the Council of Europe, of which you are all representatives this evening, the rule of law must prevail and any discrimination must be excluded. Those two cases must serve as examples. It is noteworthy that those two judgments, in spite of their highly sensitive nature and any misunderstanding to which they may have given rise in public opinion, were executed so quickly. Is this not an illustration of that dialogue with States and  with the highest national courts which goes to the heart of my message this evening? There is no question of pointing the finger at States which are not so rapid in their execution of our judgments. I would simply like to remind them that this system belongs to them; that it is our common system and that if we wish to preserve this common area of freedom, then the execution of judgments is an absolute necessity.«

The official opening was preceded by the conference on the »Implementation of the judgments of the European Court of Human Rights: a shared judicial responsibility?«, which included lectures by Professor Alec Stone Sweet,  Judge Antônio Augusto Cançado Trindade and Judge Julia Laffranque.

New book on litigating transnational and human rights obligations

Mark Gibney and Wouter Vandenhole, both excellent human rights scholars, have edited a new book on Litigating Transnational Human Rights Obligations – Alternative judgments. This book is unique in the sense that9780415858113 it includes eighteen hypotetical judgments and decisions from several international human rights bodies, including the European Committee of Social Rights and the European Court of Human Rights. Here is the book abstract :

Human rights have traditionally been framed in a vertical perspective with the duties of States confined to their own citizens or residents. Obligations beyond this territorial space have been viewed as either being absent or minimalistic at best. However, the territorial paradigm has now been seriously challenged in recent years in part because of the increasing awareness of the ability of States and other actors to impact human rights far from home both positively and negatively. In response to this awareness various legal principles have come into existence setting out some transnational human rights obligations of varying degrees. However, notwithstanding these initiatives, judicial institutions and monitoring bodies continue to show an enormous hesitancy in moving beyond a territorial reading of international human rights law.

This book addresses the issue in an innovative and challenging way by crafting legally sound hypothetical “judgments” from a number of adjudicatory fora. The judgments are based on real world situations where extraterritorial or transnational issues have emerged, and draw on existing international human rights law, albeit a progressive interpretation of this law. The book shows that there are a number of judicial and quasi-judicial systems where transnational human rights claims can, and should be enforced. These include: the World Trade Organization; the International Court of Justice; the regional human rights monitoring bodies; domestic courts; and the UN treaty bodies. Each hypothetical judgment is accompanied by detailed commentary placing it in context in order to show how international human rights law can address issues of a transnational character.

And here is its table of contents :

1. Introduction: Transnational human rights obligations, Mark Gibney and Wouter VandenholePart 1: International Economic Governance Structures 2. U.S. Trade Santions (World Trade Organization, Panel, Claire Buggenhoudt 3. Biofuel and the Right to Food (World Trade Organization, Panel), Alexia Herwig 4.Land Grabbing and Gender Issues (International Finance Corporation and Compliance Advisor Ombudsman), Joss Saunders Part 2: Global (Human Rights) Monitoring Bodies 5. Putting an End to Victims without Borders: Child pornography (Committee on the Rights of the Child), Gamze Erdem Türkelli 6. Extraterritorial Shared Responsibility for the Right to Health (Committee on Economic, Social and Cultural Rights),Rachel Hammonds and Gorik Ooms 7. Economic, Social and Cultural Rights of Nuba Peoples (Committee on Economic, Social and Cultural Rights), Jernej Letnar Černič 8. “Only the Little People Pay Taxes”: Tax evasion and Switzerland’s extraterritorial obligations to economic, social and cultural rights (Committee on Economic, Social and Cultural Rights), Nicholas Lusiani 9.Labour Rights in a Transnational Perspective (Committee on Economic, Social and Cultural Rights), Arne Vandenbogaerde 10. Climate Change (Human Rights Committee, Ad hoc Conciliation Commission), Margreet Wewerinke 11. Land Grabbing in Uganda by a Multinational Coporation (World Court of Justice), Christopher Mbazira 13. Structural Adjustment and Farmers’ Suicide in India (International Court of Justice), Anita Punj 14. (Economic) Crimes against Humanity (International Criminal Court), Michael Wabwile Part 3: Regional Human Rights Monitoring Bodies 15. Public Duties for Private Wrongs: Regulation of multinationals (African Commission on Human and Peoples’ Rights), Takele Soboka Bulto 16. Forced Evictions in Zimbabwe (African Commission on Human and Peoples’ Rights), Khulekani Moyo17. Land Grabbing in South America (Inter-American Human Rights Commission), Ana Maria Suarez-Franco 18/ Enforcing Extraterritorial Social Rights in the Eurozone Crisis (European Committee of Social Rights), Matthias Sant’Ana 19. Military Interventions in Non-European States (European Court of Human Rights), Nico Moons Part 4: Domestic Courts 20. Extraordinary Rendition (U.S. Supreme Court), Mark Gibney.

ESIL IHRL Interest Group Call for Papers

European Society of International Law’s Interest Group on International Human Rights Law has posted call for papers for “a roundtable on the relationship of international human rights law to other bodies of international and domestic law” at the ESIL Vienna Conference in September 2014.

Judgment in W. v Slovenia

The European Court of Human Rights has on 23 January 2014 delivered judgment in W. v Slovenia (no. 24124/06), which we have discussed before. The Court held that Slovenia violated its procedural obligations under Article 3 of the European Convention. More specifically, it held that :

69. … the Court agrees with the applicant that the prolonged state of uncertainty and other negative implications of the lengthy proceedings, in particular having to relive the painful events a number of times in three separate retrials, caused her unnecessary suffering and frustration which could have been avoided had the criminal-law mechanisms aimed at deterrence of and punishment for criminal acts of sexual abuse been applied in an effective and prompt manner. In this regard, the Court would add that the failure of the State to ensure effective prosecution of rape cannot be justified by the backlog of cases in the relevant courts (see, mutatis mutandisScordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V, and the references cited therein). Neither can it be justified by the frequent changes of the sitting judges who were dealing with the applicant’s case. Namely, as the Court has already emphasised on many occasions, it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention (see, for example, Šilih, cited above, § 210).

The Court also held that redress obtained by an applicant was not sufficient. It reasoned as follows :

84.  In the Court’s opinion the effects of the prolonged uncertainty as to the outcome of the criminal proceedings and related mental distress endured by the applicant over the period of seventeen years, coupled with the short prison sentences imposed on the defendants, are comparable to the breaches found by the Court in the cases cited in the previous paragraph, which should be reflected in the amount of compensation awarded to the applicant. This finding cannot be changed by the fact that the outcome of the present case, in which eight out of ten defendants were eventually convicted and sentenced to imprisonment, was, as pointed out by the Government, favourable to the applicant.

85.  Therefore, the Court considers that the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress and thus she may still claim to be a “victim” of a breach of Article 3 of the Convention.

FRA Report on data protection remedies

The European Union Fundamental Rights Agency has recently published report on “Access to data protection remedies in the EU Member States”. The report highlights the “victims’ lack of understanding and awareness about data protection and the authorities that serve to help them”.