ECtHR condemns extraordinary renditions and secret detentions in Poland

The European Court of Human Rights has on 24 July delivered two judgments against Poland, Al Nashiri v. Poland (28761/11and Husayn (Abu Zubaydah) v. Poland 7511/13)concerning extraordinary renditions by the CIA of Mr Al Nashiri and Mr Husayn, both alleged terrorist, to secret detention sites in Poland. The Court has inter alia employed a strong language in condemning arbitrary and secret detentions thereby noting, for instance, in Al Nashiri that :

that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (para. 529).

The Court found that Poland committed several violations of the European Convention of Human Rights and Fundamental Freedoms, including, of Articles 3, 5, 8, 13 and 6 (1). It also found violation of Articles 2 and 4 in connection with Article 1 of Protocol 6 concerning the abolition of death penalty concerning rights of Mr Husayn. For the full press ECtHR release hereAnne Brasseur, President of the PACE of the COE noted in the light of both judgments that :

Seven years ago, Senator Dick Marty made his first presentation to the Council of Europe Parliamentary Assembly of credible evidence about the existence of secret CIA prisons in Poland and Romania, and the involvement of other European countries in illegal renditions. His statements were subsequently confirmed, as witness the judgments of the European Court of Human Rights made public today in the cases of Al Nashiri and Husayn against Poland.

Those two cases already second and third cases following judgment in El-Masri v. the former Yugoslav Republic of Macedonia (39630/09). A number of cases are yet to follow. All such and similar cases cast a dark shadow on the protection of basic human rights in Europe. It is doubtful, however, that those judgments will ever be fully executed and the applicants fully rehabilitated.

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.

Öcalan wins again

The European Court of Human Rights has on 18 March 2013 delivered judgment (summary in English) in Abdullah Öcalan v Turkey (no 2, 24069/03, 197/04, 6201/06 and 10464/07). This is already the second time that the Court dealt with the complaint by Mr Öcalan, the founder of Kurdistan Workers’ Party. The same Court examined his first complaint already in 2005 when it found that Turkey violated several articles (Articles 5 (3 and 4) and Article 3 of ECHR) during and following his arrest at the Nairobi airport and his subsequent transfer to Turkey (no. 46221/99, 12.5.2005).  This time around Mr Öcalan complained of his inhumane detention conditions on the island of İmralı, where he was held alone for nearly 11 years, until 17 November 2009. The Court agreed and found violation in respect of the inhumane conditions of his detention (Article 3). More specifically, the Court held that :

les conditions de détention imposées au requérant pendant cette période ont atteint le seuil minimum de gravité requis pour constituer un traitement inhumain au sens de l’article 3 de la Convention. (para. 146)

The Court also held that the sentence of life imprisonment amounts to the violation of inhuman treatment under Article 3 of ECHR as his prison sentence was found to be »irreducible« (para. 207). Turkey is now obliged to offer Mr Öcalan procedural possibility to challenge his sentence of life imprisonment as unjustified. All in all, this case represent a symbolic victory for Mr Öcalan but it remains to bee seen how quickly and if at all Turkey will execute the judgment.

Overcrowded Slovenian Prisons

The European Court of Human Rights has at the end of February delivered two judgments against Slovenia, Štrukelj v Slovenia (6011/10) and Četić v Slovenia (7054/10), both, in the already long series of judgments on the deteriorating conditions in Slovenian prisons. In Štrukelj the applicant :

…. was detained in cells 7 and 5 he had 3 or 3.26 square metres of personal space, respectively. His situation was further exacerbated by the very limited time which could be spent outside the cell. Also when held in cells 98 and 124 with 3.75 square metres of personal space, the conditions of the applicant’s detention were further exacerbated by the very limited time which he could spent outside the cell and partly also by high temperatures in the cells in the summer of 2009 (para. 23).

The Court therefore held that :

the hardship he endured appears to have exceeded the unavoidable level inherent in detention, and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention (para. 24).

Similarly, in Četić the Court held that :

to the cumulative effects of the conditions of the applicant’s detention in cells 2 and 129, the Court considers, as in Praznik, that the hardship he endured appears to have exceeded the unavoidable level inherent in detention, and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention.

Both judgments are the latest developments regarding prisoners conditions, particularly overcrowding in Slovenian prisoners. The Court found in both cases that conditions in Slovenian prisons violated the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Slovenian government, however, has recently pledged to improve prison conditions, including by constructing a new prison. However, until this materializes, we can expect from the Court further similar judgments against Slovenia.

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.