Saturday 11 July 2020

The Netherlands Lodges Inter-State Complaint Against Russia

As all those following the Strasbourg system know well, the bulk of the work of the European Court of Human Rights is taken up by dealing with individual complaints. By contrast, Inter-State cases are exceedingly rare. Article 33 ECHR provides that any state party can "refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party", but this mechanism is rarely used, as it is considered a very heavy diplomatic step. One could almost say that only states that have extremely and long-standing strained relationships, due for example armed conflicts or large scale violence take such a step.

All the more surprising maybe that yesterday the government of the Kingdom of The Netherlands announced it is bringing an inter-state complaint against the Russian Federation to Strasbourg. The case relates to the downing of flight MH-17 of Malaysia Airlines over Eastern Ukraine during the conflict there, almost exactly six years ago - a tragedy that killed 298 people, the majority of whom were Dutch.

The move can be see in a wider mix of legal procedures that have been ongoing next to diplomatic efforts. The main suspects are currently criminally prosecuted under Dutch law, in absentia, after extensive research into the causes of the crash by the international Joint Investigation Team (JIT). The Netherlands has also, two years ago, together with Australia (another large group of the passengers on board of MH-17 were Australians) formally held Russia accountable under international law. In addition, a large number (380 people) of next-of-kin of those killed have lodged a complaint at the European Court of Human Rights against Russia in 2016 and 2018 about violations of Articles 2, 3, 8 and 13 ECHR, alleging that Russia 'was responsible for the destruction of the plane and for their relatives’ deaths, either directly or indirectly, and failed to investigate the disaster properly or to cooperate with other international investigations.' These joined cases have been communicated to Russia in April 2019. The Netherlands will intervene as a third party in these cases as well. 

Both the inter-state complaint and the third party intervention have been done to support the next of kin, the Dutch government has announced. Russia has always denied any involvement in the shooting down of the plane. The legal battle and the battle for truth will now thus be fought at several levels and in several legal fora. The step also means that other, diplomatic means, were not yielding results.

Russia has called the legal step "another blow" to the Dutch-Russian relationship and interestingly said this legal application "will only lead to further politicization and will complicate the search for the truth" as the New York Times reports. 

For a full overview of the two handfuls of inter-state cases in Strasbourg, see here. One may note that several other inter-state applications against the Russian Federation, lodged by both Ukraine and Georgia, are currently pending.

Here is the full pres release of the Dutch Government:

'Today, the Dutch government decided to bring Russia before the European Court of Human Rights (ECtHR) for its role in the downing of Flight MH17. By submitting an inter-State application, the government is sharing all available and relevant information about the downing of Flight MH17 with the ECtHR. The contents of the inter-State application will also be incorporated into the Netherlands’ intervention in the individual applications submitted by the victims’ next of kin against Russia to the ECtHR. By taking this course of action the government is offering maximum support to these individual cases.

What is more, by submitting this inter-State application, the Netherlands stands by all 298 MH17 victims, of 17 different nationalities, and their next of kin.
‘Achieving justice for 298 victims of the downing of Flight MH17 is and will remain the government’s highest priority,’ said foreign minister Stef Blok. ‘By taking this step today – bringing a case before the ECtHR and thus supporting the applications of the next of kin as much as we can – we are moving closer to this goal.’
The UN Security Council will be notified of this step as well.
The government attaches importance to continuing the meetings with Russia on the matter of state responsibility. The purpose of these meetings is to find a solution that does justice to the enormous suffering and damage cause by the downing of Flight MH17.'
Nearly six years since the downing of Flight MH17, which killed all 298 people on board, the pursuit of truth, justice and accountability remains the top priority for the Dutch government. The government has always said that it would not rule out any legal remedy to achieve this goal. This latest course of action brings us one step closer.'
And with this report, this blog goes on its annual Summer break!

Friday 3 July 2020

New ECHR Readings

Please find below a new batch of recent ECHR-related publications:

* Aikaterini Tsampi, 'The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?', Netherlands Quarterly of Human Rights, vol. 38(2), pp. 134-155:

'The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.'

* Vladislava Stoyanova, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol. 24(5) 2020, 632:

'This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of the common law certain analytical elements are more thoroughly considered and better articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm; the reasonableness of imposing a duty; the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations.' 

* Lisa McIntosh Sundstrom, ‘Seeking better judgment: LGBT discrimination cases in Russia and at the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 750:

'Drawing upon data from field interviews, court records, and media and NGO reports, this article examines Russian cases claiming LGBT discrimination in domestic courts and at the European Court of Human Rights (ECtHR). The ECtHR has provided a less homophobic venue than Russia’s domestic courts for such claims, but its judgments have had little effect in Russia. We argue that the Russian case illustrates a paradox in the domestic politics of international human rights litigation. Activists from domestic contexts where discrimination is most prevalent are most likely to make successful claims in international human rights courts, while in those same contexts, informal discriminatory norms are likely to be strongest, resulting in those international court decisions having the least impact on the ground.' 

* M. Lufti Chakim, ‘The margin of appreciation and freedom of religion: assessing standards of the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 850:

'Throughout history, the relationship between religion and State has posed challenges. The issue of religious symbols in the public sphere is an area where the European Court of Human Rights has granted a wide margin of appreciation to States. The main argument is that there is no European consensus on the issue and that national authorities are better positioned to determine when interference with the freedom of religion becomes necessary in a democratic society. However, this argument has evoked criticism that no strong legal reasons or standards have been applied to the doctrine of the margin of appreciation. This article aims to analyse the Court’s standards through an examination of the limits imposed on the doctrine under European supervision. Notwithstanding the controversy over its application, the doctrine does play an essential role in accommodating the diversity of human rights protection in Europe. Therefore, in future judgements, the Court should focus on a proportionality test against the State arguments, which would allow the Court to determine the applicability of the doctrine in the case of freedom of religion.'

* Veronika FikFak, ‘Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’, Leiden Journal of International Law, vol. 33(2) (2020) 335:  

'This article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.' 

* Thiago Alves Pinto, ‘An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights’, Religion and Human Rights, vol. 15(1-2) (2020) 96:

'Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.'