Friday 30 January 2009

Yukos Lawsuit

In December, I mentioned a judgment of the Court in the case of Aleksanyan, one of the former executives of the now defunct Russian oil company Yukos. Today the EU Observer reported that the Court declared a claim of the shareholders of that company admissible. Reportedly, they claim more than 32.5 billion euros in damages, making this the ECHR case with the largest possible financial implications in its history. No news on the Court's site as yet, nor in the HUDOC search engine. But the EU Observer's article tells us that Russia's ambassador to the Council of Europe saw this as another sign of the "politicisation" of the Court. A wobbly road ahead, whatever the outcome of the case will be.

Annual Report of the Court

Yesterday, at a press conference in Strasbourg, the Court presented its annual report. For Court watchers, the report presents a familiar continuation of the trends of the last few years. A rising number of Court judgments (1,543: up 3%) and 30,163: up 11%), but an even higher rise in new applications (around 50,000, up 20%!). This has the pernicious effect that no matter how much more productive the Court has become, 2008 has been another year of increasing backlogs.

An insightful table of judgments divided per country shows that most judgments were issued against Turkey (257), Russia (233), Romania (189), Poland (129) and Ukraine (110). Four out of these five (Poland excepted) reflect 57% of the new applications lodged in 2008. They will thus probably still top the charts of shame in the years to come. It seems that the Convention system is at its least effective in its (South-)Eastern parts. At the other end of Europe, economically hard-hit Iceland did not get any judgment.

As to the kind of violations, the usual suspects surface: the highest numbers of violations have been found under articles 5 (right to liberty), 6 (fair trial), 13 (effective remedy), and 1 Prot. 1 (property). These outcomes in themselves give some indication that many human rights violations are part of systemic defaults in the countries involved: trials that take too long, judgments that are not enforced, remedies that are not available. In his press conference yesterday, president Costa explained that one of the main lines of reform for the Court would be the effective execution of the judgments of the Court on the national level to avoid overburdening of the Court by repetitive cases. I predict in that context a rise of the pilot judgment procedure.

This year, some rights were spared the taint of violation (which does not mean that they are fully guaranteed, sadly): the prohibition of slavery), the right to marry, the right to education and the right not to be tried or punished twice (and maybe some other rights in the protocols, which the Court grouped as 'other rights').

More on all of this can be found in the Court's Annual Report over 2008, which also contains a handy overview of the Court's cases of that year. I would particularly like to draw the readers' attention to the last two pages, in which one can find a table of allocated applications per country as a ratio of its population. This picture of the 'relative' problems (as compared to the absolute ones) is telling: In the top 4 one finds on places 4, 3, and 2 respectively: Bosnia and Herzegovina, Moldova, and Georgia. This might not be too surprising to many people, but what is interesting is the number 1 place of the highest number of applications per 10,000 people is: Slovenia! I leave it to the curious to analyse what the reason for this may be.

Today the Court will formally start the judicial year 2009. More on that next week!

Wednesday 28 January 2009

Environmental Pollution Judgment

It is widely known that the extraction of precious metals from mines often happens by using dangerous chemical substances. If not properly used, such substances can cause damage to the health of people living in the vicinity of such a mine and to the environment. This is exactly what was at stake in one of yesterday's judgments of the Court: Tatar v. Romania. The Court unanimously found a violation of the right to private and family life (Article 8 ECHR). The case is another important environmental law case of the Court: it further specified the state's duties in the realms of precaution and public information.

The applicants, father and son Tatar, lived in the near vicinity of a gold mine in Baia Mare. At the end of the 1990s the gold mine's operating company Transgold obtained a permit to operate the mine with the use of sodium cyanide. In 2000 an accident occurrred: a dam breached, causing the release of 100,000 m3 of cyanide contaminated water into the environment. Father Tatar brought proceedings complaining of the environmental and health hazards (his son was asthmatic) of this disaster. Eventually, no one was prosecuted for this.

In their initial application in Strasbourg the Tatars called this "mass poisoning" and even "genocide" and complained that the situation posed a threat to their right to life under Article 2 ECHR. The Court, however, chose to deal with the case under Article 8, as it has done with other environmental issues before.

Romania, according to the Court, had not sufficiently evaluated the possibly serious risks of the gold extraction method used in the mine. Nor had it informed the general public sufficiently, since the public had not been given access to the scientific studies available, either before or after the acccident. The Court explicitly referred two times to the precautionary principle under international envrionmental law, as contained in the Declaration of Rio and the jurisprudence of its peer, the European Court of Justice. A strong and new connection to the wider legal context, it seems! The Court also noted that the Romanian authorities did not stop the activities of the mine, even after the accident. In conclusion, Romania had failed to abide by its positive obligations under Article 8 ECHR.

Since the Court did not consider a causal link to be present between the health deterioration of Tatar junior and the pollution, no damages whatsoever were awarded. On this point judges Zupancic and Gyulumyan dissented. Their partial dissent offers an intriguing critique of a rigid adherence to classical causal thinking, as opposed to more modern probabilistic theories. In these cases of exposure to toxic materials, there dissenting judges stated, absolute causality is almost impossible to prove in practice. See also paras. 105-106 of the judgment itself on this point. The use of experts (medical or statistical) could be helpful here and such expertise defies the black-and-white, yes-or-no answer that lawyers would like to hear. Nevertheless, they can be essential to come to a well-argued conclusion (see also my earlier comments on the use of experts here) And they certainly have a point. Well worth a read!

The judgment is in French (although the admissibility decision is available in English too), but a press release in English can be found here.

Tuesday 27 January 2009

New Issue EHRLR

As the International Law Reporter notifies, a new edition of the European Human Rights Law Review has recently appeared (2008, no. 6, journal accesible through Westlaw). Specifically of interest for watchers of the European Court of Human Rights is an article by Philip Leach, entitled 'The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights'. For more on the topic, see also my earlier posts here and here.

Monday 26 January 2009

Speech of Court's President on Social Rights

Last week, the Court's president Jean-Paul Costa spoke at the invitation of the Brussels Bar on social rights and the ECHR. Amongst others, he pointed out that the Court is increasingly showing, in its judgments, its awareness of the importance of the European Social Charter - which one could call the socio-economic twin of the ECHR, although the supervisory system is quite different. As Costa succinctly puts it in his speech, the Court is not an isolated planet in the centre of the European human rights system, since the law of gravity also applies to it. Let's see how strong the gravity will be in the coming years! The speech, in French, can be found here.

Friday 23 January 2009

After the Judgments - Consequences

For all those curious to learn more about what happens once the Court has issued a judgment, I would like to refer you to this clear overview provied by the Council of Europe, full of links and examples. Particularly useful to get an insight into the follow-up to judgments is this list of general measures taken to prevent new violations of the Convention. Although it was last updated in May 2006 (hopefully a new update will be made soon), it is extremely handy for cases decided before that time!

Thursday 22 January 2009

United by Force

States should be extremely careful to intervene in religious matters and if they do so at all, they should do it in a neutral way. That is the outcome in the case of the Holy Synod of the Bulgarian Orthodox Church and other v. Bulgaria, in which the Court issued its judgment today. The Holy Synod is one of the two rivalling churches claiming to be the true Bulgarian Orthodox Church. The split occurred soon after the demise of communism in Bulgaria in 1989, when a large group of clergy and believers tried in vain to replace the patriarch who had been nominated in the early 1970s by the Communist party. Ever since, the entire country has been divided among the two alternative churches. In 2002 a new act of religious denominations de facto favored the original church. The 'alternative synod', as it was popularly known, was refused registration. In 2004 clergy of the alternative synod were evicted from over 50 church buildings and monasteries by the authorities as illegal occupants. The buildings were transferred to the rivalling church.

The European Court once again emphasized that the state should remain neutral in religious matters. It considered the actions of the Bulgarian authorities to be contrary to Article 9 ECHR (freedom of religion). Taking sides in a controversy in a religious community by such actions went againt the organizational autonomy of such a community. Although the Court accepted that the state had had good reasons to consider action, they should have done so by using truly neutral measures of dispute settlement. According to the Court, the 2002 Act had a false appearance of neutrality. Unity of a religious community cannot be imposed by the state. In this case the interference had been both unlawful and unnecessary.

For an overview of church-state relations in Bulgaria in the context of the ECHR, see the article of Jenia Peteva, 'Church and State in Bulgaria', in Ferrari a.o. (eds.), Law and religion in Post-Communist Europe (2003), accessible through google scholar.

The press release can be found here.

Wednesday 21 January 2009

Pilot Judgment on Russian Non-Enforcement

Burdov returns - that could be the motto of last week's Court judgment in Burdov v. Russia (No. 2). Anatolyi Burdov is an applicant that cannot fail to arouse sympathy. In the 1980s he helped in the emergency operations after the Chernobyl nuclear diaster and was exposed to radioactive emissions. As a result, he was entitled to social benefits, but the authorities failed to pay those fully or in time, even though domestic courts had ordered the money to be paid. On that account he won his case before the European Court of Human Rights - the first ever judgment of the Court in a case against Russia (2002). Now, more than six years and 200 judgments on the non- or late enforcement of domestic judgments later, the Court has symbolically chosen this second case about the same applicant and about comparable issues of non- or late enforcement to be a pilot judgment (for more on pilot judgments, see my earlier post here). On top of finding yet again violations of Articles 6 and 1 Protocol 1 ECHR, it also found a violation of Article 13 (the right to an effective remedy). This is interesting, since the applicant had not complained about that latter aspect, but the Court took it up of its own motion and used it to come to a possible solution. Under Article 46 ECHR it indicated the following on what Russia is now required to do:

In accordance with Article 46 of the Convention, the Court’s findings in paragraphs 101-117 above clearly require the setting up of an effective domestic remedy or a combination of remedies allowing adequate and sufficient redress to be granted to large numbers of people affected by the violations in question. It appears highly unlikely in the light of the Court’s conclusions that such an effective remedy can be set up without changing the domestic legislation on certain specific points.
139. In this respect, the Court attaches considerable importance to the findings of the Russian Constitutional Court, which has invited Parliament since January 2001 to set up a procedure for compensation of damage arising, inter alia, from excessively lengthy proceedings. Of particular importance is the finding made by reference notably to Article 6 of the Convention that such compensation should not be conditional on the establishment of fault. The Court also welcomes the legislative initiative recently taken by the Supreme Court in this area and notes the bills tabled in Parliament on 30 September 2008 with a view to introducing remedies in respect on the violations in question. The Court notes with interest the reference to the Convention standards as a basis for determining compensation for damage, and that the average amounts of compensation for delayed enforcement were calculated by reference to the Court’s case-law.
140. It is not, however, for the Court to assess the overall adequacy of the ongoing reform, nor to specify what would be the most appropriate way to set up the necessary domestic remedies. The State may either amend the existing range of legal remedies or add new remedies to secure genuinely effective redress for the violation of the Convention rights concerned. It is also for the State to ensure, under the supervision of the Committee of Ministers, that a new remedy or a combination of remedies respects both in theory and in practice the requirements of the Convention as set out in the present judgment. In so doing, the authorities may also have due regard to the Committee of Ministers’ Recommendation Rec(2004)6 to member states on the improvement of domestic remedies.
141. The Court accordingly concludes that the respondent State must introduce a remedy which secures genuinely effective redress for the violations of the Convention on account of the State authorities’ prolonged failure to comply with judicial decisions delivered against the State or its entities. Such a remedy must conform to the Convention principles as laid down notably in the present judgment and be available within six months from the date on which the present judgment becomes final.
Note specifically the precise time limit set by the court (six months)! In addition, the Court decided for one year to adjourn proceedings for the period of one year in all new Russian applications on the same issue of non- or unreasonably late enforcement. Finally for all the cases already lodged with the Court and communicated to Russia, the country should provide redress to those applicants within one year as well.

The approach of the Court seems particularly efficient and also as just as possible to the victims involved. However, it will also be a major test in the troubled relations between Russian and the Strasbourg institutions. To put it mildly, it is no secret that Russia is not very happy with the Court's judgments in the many Chechen cases. No surprise then that the Court has found a (somewhat) less sensitive area to find a systemic problem. Nevertheless, the compliance of Russia with this judgment within the time limits indicated will be a real litmus test of its will to cooperate with the ECHR machinery. Let us hope for the best. It is now up to the Committee of Ministers of the Council of Europe to supervise the follow-up closely, both for the sake of the victims and the effectiveness of the Court itself.

The start of the new year seems anyhow to be a period in which the Court is trying to 'clean up' its roll of cases, since it also noted - yet again - that a structural problem existed in relation to Romanian restitution laws (this time restitution laws concerning nationalised immovable property sold by the state to third parties who had purchased the properties in good faith) in the case of Katz v. Romania. Yet another example, where hundreds of similar cases have been decided or are pending. It seems that the Court, at least partly out of a strategy to remain standing amidst the flood of applications, is increasingly pointing out systemic problems and even, as in Burdov, resorting to the pilot case procedure. See also my post in December here on earlier systemic problems in Romanian restitution law.

Friday 16 January 2009

Court Starts Addressing Georgian-Russian Conflict

The Court issued a press release today which indicates that it has started to deal with the delicate issue of claims arising from last summer's Georgian-Russian war. This concerns individual complaints, not the inter-state complaint. Here is the full text:

A Chamber of the European Court of Human Rights has recently examined seven applications against Georgia concerning hostilities which broke out in South Ossetia at the beginning of August 2008. The applications were lodged by six inhabitants of South Ossetia and a member of the Russian Armed Forces attached to the peace keeping corps in Tskhinvali, South Ossetia .

The cases mainly concern an alleged violation of the applicants’ or their close relatives’ right to life, inhuman or degrading treatment, interference with the right to respect for private and family life and home, damage to property or its destruction, absence of an effective domestic remedy and discrimination on the ground of ethnic origin/nationality. The applicants rely on Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention.

The Chamber decided to give priority to the applications under Rule 41 of the Rules of Court and to communicate them to the Georgian Government under Rule 54 § 2 (b).

These applications belong to a group of more than 3,300 cases with a similar factual background which have been lodged with the Court since August 2008.

Thursday 15 January 2009

(Belgian) Jury Trial System Counter to ECHR

The Court's judgment on Tuesday in the case of Taxquet v. Belgium has led to a lot of debate in that country. The applicant in the case was one of the convicted persons in the large trial in the highly publicised case concerning the murder on politician André Cools. The affair itself already caused a large scandal in Belgium, but now even its aftermath is the cause of uproar. That is because the European Court held in this case that the verdict on the national level, issued on the basis of trial by jury (a system used in Belgium for the more severe crimes), was not sufficiently motivated and thus ran counter to Article 6 ECHR (right to a fair trial). The Court considered that the motivation in a criminal judgment both protected the accused and also formed a bulwark against arbitrariness. In the Belgium system (and several others) a jury can only answer the questions posed to it by yes or no or guilty or not guilty. Thus, a lot depends on the amount and especially the precision of the questions. In this particular case, the questions were too general and too vague (and the same as for several of the other accused persons). The Court added that in a system of trial by the "people" it is especially important to explain to public opinion on what reasoning a decision was reached.

Hours after the Strasbourg judgment, a discussion erupted in Belgium on what should happen now. The Government acknowledges that the trial by jury system will have to be reformed to comply, but also thinks it will need some time. Therefore, it has announced that it will ask the Court to review the case in a Grand Chamber. Meanwhile, at least one trial by jury was put on hold by a local judge (but resumed the next day) and lawyers of suspects in other cases have called for similar measures to be taken. For reports in the Flemish press, click here and here. For reports in the Walloon press, click here and here. One suggested option is that the trial judge will attend the jury's deliberations to help draft a judgment which does sufficiently motivate. That will of course have to happen without influencing the jury - a challenge in itself! Meanwhile, Taxquet will remain imprisoned. The Court did award 4000 euros to be paid by Belgium for non-pecuniary damage and also indicated that the most appropriate form of redress would be a retrial or re-opening of the case.

Wednesday 14 January 2009

Handover of Prisoners to Iraq by the British

The British authorities ignored an order for temporary measures of the European Court of Human Rights in the very last days of 2008. The case concerned Iraqi detainees, held by British military in Iraq, who were transferred to the Iraqi authorities. This is reported by professor William Schabas on his blog Ph.D. Studies in Human Rights. Since the state parties to the European Convention are bound by such Court orders, the United Kingdom has clearly violated the ECHR here. Apart from this sad legal and human fact, Schabas also points to a very interesting aspect of the situation: the fact that the Court ordered the measure at all. This means indeed that at least prima facie the situation was not considered to be outside the Convention's scope, even though the relevant events took place entirely in Iraq and thus far outside any state party to the Convention. A new signpost in the ongoing discussion on the precise meaning of the hotly debated word "jurisdiction" in Article 1 ECHR.

Tuesday 13 January 2009

From Max to Nadine: Judgment on Transsexuals

Changing one's gender is undoubtedly one of the most far-reaching decisions a human being can make. Last week, the Court issued its judgment in an important case on the issue: Schlumpf v. Switzerland. Nadine Schlumpf, born in 1937 as Max Schlumpf, decided to change sex in 2002. She claimed that she had suffered psychologically from her childhood onwards because of her gender identity, which several times led her almost to commit suicide. Only after her children had grown up and her husband had died of cancer, did she decide to take concrete steps. In 2003 she started hormonal therapy and psychiatric and endocrinological treatment. A year later, she succesfully underwent a sex-change operation. Her health insurance, where she had applied for reimbursement in the same month, refused to pay. The core reason, apart from health risks at her high age - Schlumpf was in her late sixties - was that the established case-law of the Federal Insurance Court made clear that a two-year 'observation period' was necessary before any operation in view of the far-going consequences.

Schlumpf complained in Strasbourg about that refusal to reimburse based on the reasoning mentioned above. The Court agreed with her and - among others - found that her right to respect for private life under Article 8 ECHR had been violated. It specifically called into question the no-exception status of the case-law at the national level (the two-year rule), which in the applicant's case very particular situation (relatively high age) failed to strike a fair balance. The Court noted that the Convention does not guarantee a right to be reimbursed for gender-change operations. What is indeed the legal essence of the case is not the reimbursement, but the overly rigid application of the two-year rule in Swiss case law. Nevertheless, this is a clear case were the Court went beyond questions of legal recognition of transsexuals (not at stake here, but in several earlier British cases) and addressed a very practical aspect of gender change. Essentially, the Court's verdict is thus a plea for precise balancing. To assess whether exceptions to the Swiss rule were justified, the Court indicated that the expertise of medical staff should have been sought to take into account all medical, biological and psychological aspects. Instead of a "mechanical" application of rules in such cases, as the Court labelled it, the judgment favours a human approach - and is to be recommended for it!

Two of the seven judges dissented, pointing to the margin of appreciation for the state, the clarity of the existing Swiss case law, and the fact that the health insurance notified the applicant of their refusal to reimburse one day before the operation - making it the applicant's own choice to go through with it in the knowledge of not being reimbursed.

Again, the judgment itself is available only in French, but the Court's press release in English can be found here. For a short overview of some of the Court's preceding case law on transsexualism, see Beate Rudolf's article European Court of Human Rights: Legal Status of Postoperative Transsexuals in the International Journal of Constitutional Law (Vol.1.4, 2003, pp. 716-721).

Monday 12 January 2009

Police Violence Cases

Last week, the Court issued two judgments on police violence, one concerning Spain, the other concerning Greece. In the Spanish case, Iribarren Pinillos, the applicant had been severely wounded when during a riot the police fired a smoke-bomb at him. When an ambulance arrived he was partly paralysed, had severe burns and had even stopped breathing. It is important in this case that the Court clarifies that many of state duties applicable under the right to life (Article 2) also apply under Article 3 ECHR. Two of the key aspects now clarified as being also applicable under Article 3 are the duty to conduct an investigation and the possibility to obtain compensation (on the national level) for pecuniary and non-pecuniary damages. Thus even violence that was not (potentially) lethal and for which the state was responsible falls under this regime.

It may be noted that the applicant was awarded high compensation for both pecuniary (100,000 euros) and non-pecuniary (40,000 euros) damages. The judgment is available only in French, but a press release in English can be found here. The Court's press service has, by the way, conveniently started to add links to the judgments to its press releases.

The other judgment on police violence is the case of Leonidis v. Greece, the Court found a substantive violation of the right to life. In 2000, the applicant's son had been shot in a chase by the police which went awfully wrong. As in earlier Greek cases (most notably Makaratzis), the Court pointed to the lack of clear guidelines on the use of force in peacetime. Coming as it did so quickly after another shooting by the Greek police last autumn, which caused enormous unrest and even rioting in Greece (see e.g. this report in the Guardian), one may only hope that the country's authorities will now finally take the Court's emphasis on the need for clear rules and proper training at heart.

Tuesday 6 January 2009

Non-Compliance with Interim Measures

A few days before Christmas the Court passed judgment in the case of Aleksanyan v. Russia. The applicant in the case was the former head of the legal department of the now dissolved Russian energy giant Yukos (one of their gas stations on the photo). In 2006 he was arrested in the context of the proceedings against the company's executives for fraud and embezzlement. Aleksanyan was diagnosed as being HIV-positive within a few months after his arrest and by October 2007 he had developed AIDS. Doctors concluded that he needed medical treatment in a specialist hospital.

Among many other aspects, two are notable in this case in which the Court found multiple violations. The first is a violation of Article 34: the obligation for state parties not to hinder the effective exercise of the right of individual application. In two interim measures the Court had requested Russia to transfer the applicant to an external special hospital and to form a bipartisan medical commission to diagnose the patient and suggest treatment. It took Russia over two months to transfer the applicant to a hospital, of which it was not even certain that it could provide the specialist treatment. It refused to set up a commission. As to the first point, the Court considered that Russia's refusal for two months to transfer had put the patient in great danger. As to the second measure, the Court noted that the applicant could not have - in his state of health - collected the necessary information himself and that therefore the refusal to set up a commission to do so hindered his effective right of petition.

The other point is that the Court, in line with a relatively recent trend, indicated under Article 46 ECHR (obligation to abide by the Court's judgments) that the only possibility for Russia to comply with the judgment was to replace the detention with other less stringent measures. In paras. 238-239 the Court elegantly and clearly summed up its current position:

238. The Court notes that the applicant did not request any pecuniary compensation under Article 41 of the Convention. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], cited above; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).
239. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above; see also Abbasov v. Azerbaijan, no. 24271/05, §§ 35 et seq., 17 January 2008).

Let's see how much further the Court will take this welcome approach!

Monday 5 January 2009

New Articles for the New Year

Happy new year to all readers; a special year ahead with the 50th anniversary of the Court in sight!

Three recent articles might be of interest to you, two of which deal explicitly with the effectiveness of the Convention machinery. The first is in French and has appeared in the latest issue of the Revue trimestrielle des droits de l'homme (vol. 19, no. 76, 2008): Frédéric Sudre, L’effectivité des arrêts de la Cour européenne des droits de l’homme. The other has appeared in the Liber Amicorum in honour of professor Cees Flinterman of Utrecht University (Changing Perceptions of Sovereignty and Human Rights, Intersentia Publishers 2008, ISBM 978-90-5095-759-5) and was written by my colleague Leo Zwaak: The Role of the Council of Europe and its Committee of Ministers. Analysing the Efficiency of Measures Taken Under Article 46(2) of the ECHR. Equally of interest in the same volume is the article written by the Dutch judge at the Court, Egbert Myjer: Hardly a Week Goes by Without... Observations on the Increasing Number of General Problems of International Law in the Case Law of the European Court of Human Rights.

Enjoy reading!