Prohibition of expulsion to a risk of ill-treatment – Nizamov et al v. Russia

The European Court of Human Rights held on 7 May 2014 in the case of Nizamov and Others v. Russia (nos. 22636/13, 24034/13, 24334/13 and 24528/13) that Russia violated article 3 of the ECHR as a real risk exists that the applicants would be subjected to ill-treatment on the basis of their membership in the Islamic religious group if they were to be expelled to Uzbekistan. As in the previous cases, the concern was how one can prove that in fact applicants will be ill-treated if returned to Uzbekistan. However, the application of any standard of proof to the probability of future events will always be subject to a degree of speculation. What is more, the Court argued that mere formal commitment to international human rights treaties does not guarantee that they protection will be heeded in practice. More specifically, it noted that :

substantial grounds have been shown for believing that there is a real risk that the applicants would be subjected to treatment contrary to Article 3 of the Convention if they were to be expelled to Uzbekistan. The summary and unspecific reasoning adduced by the domestic authorities and the Government before the Court did not dispel the alleged risk of ill‑treatment. Nor can that risk be excluded on the basis of other material available to the Court. In this connection, the Court notes that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights, relied on by the Government in their arguments, are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention…

What is noticeable and commendable, that Russia, often described as a state with the poor record of compliance with the ECtHR’s judgments,  heeded interim order of the European court from April 2013 asking not to expel the applicants to Uzbekistan until the final decision.

Central and Eastern European Judges under the EU Influence

20140512_095631Conference on Central and Eastern European Judges under the EU Influence takes place today and tomorrow at the European University Institute. Has the state of mind of judiciaries in the Central and Eastern European states changed ten years after joining the EU ?

Ruiz Vieytez on the effectiveness of the European system of national minorities protection

20140505_182509Prof. dr. Eduardo J. Ruiz Vieytez of University of Deusto delivered yesterday at the Jean Monnet Academic Forum at the Graduate School of Government and European Studies in Kranj a speech that focused on the effectiveness of the European system of national minorities protection. In doing so he also discussed recent claims for greater autonomy and independence in the Basque country and Catalonia.

Mladina v Slovenia – ECtHR protects harsh journalistic criticisms of politicians

The European Court of Human Rights has on 17 April 2014 delivered its judgment in the case of Mladina d.d. v Slovenia (20981/10) concerning the scope and nature of freedom of political expression. Slovenian left-wing weekly magazine, Mladina, published in 2005 an article describing a former nationalistic right-wing politician, former MP of Slovenian parliament, as “a cerebral bankrupt” referring to his opposition to legal recognition of same-sex partnerships. Slovenian ordinary courts held that published article breached the accepted forms of journalistic criticisms and thereafter awarded damages to former MP. Their decisions were later upheld also by the Slovenian Constitutional Court. The European Court, however, disagreed and found Slovenia in violation with article 10 ECHR. More specifically, it agreed that : 

… describing S.P.’s conduct as that of a “cerebral bankrupt” who, in a country with less limited human resources, would not even be able to find work as a primary school janitor, was indeed extreme and could legitimately be considered offensive. However, it is noted that the impugned remark was a value judgment, as acknowledged by the Government. It is true that in the absence of any factual basis even value judgments can be considered excessive. Nevertheless, in the present case the facts on which the impugned statement was based were outlined in considerable detail; with the exception of his concluding remark, S.P.’s parliamentary speech was quoted almost in its entirety, along with a mention of his accompanying imitation of a homosexual man. This description was followed by the author’s commentary which, in the Court’s opinion, was not only a value judgment, but also had the character of a metaphor. In the context of what appears to be an intense debate in which opinions were expressed with little restraint (see paragraphs 7 and 8 above), the Court would interpret the impugned statement as an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities. Viewed in this light, the description of the parliamentarian’s speech and conduct can be regarded as a sufficient foundation for the author’s statement. (para. 43.)

Therefore it held that :

the domestic courts did not convincingly establish any pressing social need for placing the protection of S.P.’s reputation above the applicant company’s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. The Court thus concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant company’s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. (para. 47).

The Court’s decision in present case is in the line with its case law. Freedom of expression clearly protects the right to harsh criticism of persons occupying public positions and participation in public debate. Politicians and other public figures may be subject to harsher criticism than individuals who do not occupy public positions, or do not participate in the public sphere, as it is a critique of the holders of public positions in the public interest (Castells v Spain, no. 11798/85, 23. 4. 1992, para. 46; Otegi Mondragon v Spain, no. 2034/07, para. 50). Anyone can participate in discussion of matters of public interest and may exaggerate or provoke but subject to respect for the reputation and rights of others. However, the right to freedom of expression does not protect publications of false statements and records.

Spielmann on margin of appreciation

President of the European Court of Human Rights, Dean Spielmann, has on 20 March 2014 delivered a lecture at the UCL Faculty of Law of the University College London on the doctrine of margin of appreciation in the jurisprudence of the European Court of Human Rights. You can watch entire video of the lecture here.

ECtHR reaffirms disability rights

The European Court of Human Rights rendered on 15 April 2014 judgment in the case of Asalya v Turkey (43875/09) concerning the degrading detention conditions of Mr Asalya, who is paraplegic. The Court noted with regard to his disability that :

…the lack of effort to cater for his disability, the applicant experienced serious difficulties in meeting his most basic needs, such as using the toilet. The Court notes in this connection that the inaccessibility of the sanitation facilities raises a particular concern under Article 3 of the Convention, in particular as the applicant was dependent entirely on the good will of the police officers to assist him, on account of the structural deficiencies at the place of detention (51. para).

and on this basis stated that :

the detention of the applicant in conditions where he was denied some of the minimal necessities for a civilised life, such as sleeping on a bed and being able to use the toilet as often as required without having to rely on the help of strangers, was not compatible with his human dignity and exacerbated the mental anguish caused by the arbitrary nature of his detention … (para. 53).

The Court therefore found that Mr Asalya was subjected to degrading treatment contrary to Article 3 ECHR. The Court also found Turkey in violation of his right to liberty and security (article 5 (1, 4, and 5). It follows from this case that states have positive obligations to protect disability rights of individuals in detention. More specifically, “where authorities decide to place and keep a person with a disability in detention they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability” (para. 50).

Hearing on EU accession to the ECHR

The Court of Justice of the European Union will on 6 May 2014 hold hearing on EU accession to the European Convention on Human Rights on the basis of the request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU. Question submitted to the Court of Justice goes as follows : “Is the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms compatible with the Treaties?”