ECHR

Decision to Return Child to Father in USA Did Not Violate Mother’s Rights

By: Sallie Moppert 

Impunity Watch News Staff Writer 

STRASBOURG, France – The European Court of Human Rights (“ECHR”) handed down a decision on February 21, 2023 that determined no violation of Article 8 of the European Convention of Human Rights had occurred in the case of G.K. v Cyprus regarding the right to respect privacy and family life. The ECHR found that the district courts in Cyprus had properly considered the arguments of all the involved parties and ruled out any harm to the child before ordering his return to his father in the United States.

The District Court in Paphos, Cyprus
Photo Courtesy of In-Cyprus.

G.K., a native of Cyprus, married a US citizen (“Father”) in 2016 and the couple had a son born that same year. One year later in October 2017, G.K. filed a domestic violence complaint against the Father and subsequently sought an order of protection before moving to a safe house. She eventually took her son, now one-year-old, from the US back to Cyprus with the assistance of the Cypriot authorities. The son was granted Cypriot nationality and a passport during this time.

The Father hired private detectives to locate G.K. and their son, eventually tracking them down in Cyprus. In 2018, he requested the US authorities to apply to the Cyprus authorities under the Hague Convention for the son’s return to the US. The Cypriot authorities filed an application and affidavit in the Family Court in Paphos, Cyprus requesting the son’s return to the US. G.K. objected, claiming that the son would be in danger due to the Father’s prior record of violence. The Father refuted these allegations and provided an affidavit that he had a stable job and could successfully provide for his child.

After an adjournment and postponement due to the Covid-19 pandemic, the Court eventually ruled that the son should be returned to the US. The Father was determined to be a credible witness with consistent and persuasive testimony and evidence, while G.K.’s version of events was general, vague and contradictory. The Court found that she failed to provide evidence to demonstrate why the son should not be returned to the US. G.K. appealed, and the Family Court of Second instance affirmed.

G.K. argued that her right to private and family life under Article 8 of the European Convention on Human Rights was violated due to the unreasonable length of the proceedings and the Court’s decision to return her son to the US without adequately assessing the situation and risks involved. The Court disagreed, stating that the return of the son to the US was not an immediate decision, instead only being made after G.K. had the opportunity to cross-examine the Father, and the domestic courts had considered all the arguments of the parties before making a decision that was in the best interest of the child. The Court also determined that G.K. had not suffered a disproportionate interference with her right to respect for her family life.

 

For further information, please see:

ECHR Finds Plaintiff’s Husband’s Right to Life Violated While he was Held in an Armenian Detention Facility

By: Marie LeRoy 

Impunity Watch News Staff Writer

STRASBOURG, France – The European Court of Human Rights (ECHR) reverses a District Court judgment and finds that Armenia failed to protect Slavik Voskanyan’s right to life through its negligent provision of medical services.

 
Picture of hallway of an Armenian prison. Photo curtesy of: AZERNEWS

On October 7, 2010, Plaintiff’s husband, Slavik Voskanyan, was arrested under suspicion of murder and armed assault. Voskanyan was placed in an Armenian detention facility while he awaited trial. Eleven days later, Voskanyan began complaining of pain in his left shin. One of the detention facilities’ doctors immediately began treating Voskanyan for his injury. On October 19, the doctor noted that “crepitation was observed upon palpation” of Voskanyan’s shin and that “brown pus with an unpleasant smell” was found within the injury.

On October 21, a different detention doctor went to check Voskanyan’s injury and reported to the chief detention facility doctor that Voskanyan’s injury was getting worse. The doctor noted that they believed that the “infected area may possibly spread” and that Voskanyan was experiencing severe pain. Three days later, Voskanyan was finally transferred to the local hospital with the intention that he undergo surgery on his shin. Voskanyan, however, succumbed to the infection and died the same day in the hospital.

A forensic investigation was immediately commenced, and a panel of experts were consulted. The experts concluded that the detention facility doctor did not diagnosis Voskanyan correctly. The experts indicated that the October 19 examination should have alerted the doctor to the seriousness of the injury and the presence of an infection diagnosis like “gangrene.” They noted that the doctor should have recognized Voskanyan’s injury deterioration and reacted accordingly by changing the treatment method. The panel further concluded that the doctor, when noting the “crepitation” and “unpleasant smell,” was “obliged” to send Voskanyan to the hospital for treatment. The panel of experts finally concluded that it might have been possible, if the doctor employed the correct treatment and response, to prevent Voskanyan’s death.

Despite these findings, multiple Courts have dismissed Voskanyan’s wife’s claims for medical negligence because it is unclear whether Voskanyan’s shin injury originated and was made worse through methods of self-harm.

However, the ECHR found for Voskanyan’s wife, deciding that the domestic authorities did not do everything that was “reasonably possible, in good faith and in a timely manner” to save Voskanyan’s life. The ECHR stated that the dentition facility had a duty, because Voskanyan was “under their control”, to protect his life and that Voskanyan’s own actions were irrelevant to that duty. Therefore, the ECHR reversed the prior decisions finding for the Armenian government and held that the Armenian government must pay Voskanyan’s wife twenty thousand euros worth of damages.

 

For further information, please see:

Voskanyan v. Armenia – ECHR—24 Jan. 2023

Voskanyan v. Armenia –ECHR Communicated Case — 1 Sept. 2015

ECHR Continues Disappointing Extradition Trend – Overrules Trabelsi v. Belgium

By: Nikolaus Merz

Impunity Watch News Staff Writer

STRASBOURG, France – On November 3, 2022, the European Court of Human Rights (“ECHR”) released two judgments regarding extraditions to the United States for instances involving possible life sentencing. In Sanchez v. United Kingdom and McCallum v. Italy, the Grand Chamber found that the extradition of the petitioners – both accused of crimes that could result in possible life sentences in the United States if extradited – was allowed under Article 3 of the European Convention of Human Rights (“Article 3”).

The Grand Chamber delivers its judgment in Sanchez v. the United Kingdom. Photo Courtesy of the European Court of Human Rights.

Article 3 reads, in full; “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The two judgments continue a disappointing trend of the ECHR of interpreting when an extradition violates Article 3 with exceptional narrowness. Since 2001 there has been only a single case, Trabelsi v. Belgium, where the extradition of a petitioner was found to be in violation of Article 3.

In the majority of such extradition cases, the ECHR will generally uphold extraditions because life without parole (“LWOP”) and death sentences in the U.S. can be delayed or forgiven through a variety of legal mechanisms (stays, commutations, pardons, clemency, etc.). Because of these caveats, the ECHR has created a legal fiction that such sentences are not in violation of Article 3 (and therefore extraditions are allowed), because they can technically be reduced to a sentence which would be acceptable under Article 3.

What the ECHR neglects, and what the petitioner in Trabelsi successfully argued, however, is that these sentences are often irreducible de facto. Of the roughly 1.5 million people in prison in the U.S. today, more than 200,000 are serving LWOP sentences or a like equivalent. An incredibly small minority of these cases will likely ever receive commutations. A study of available data for eight northeastern states revealed that between 2005 and 2021 just 210 commutations were granted. For instance, Rhode Island has only granted a single commutation since the 1950’s; a posthumous pardon for a murder from the 1800’s.

Nevertheless, the ECHR held in Sanchez that Trabelsi was to be overruled as a binding decision. The ECHR held that Trabelsi had incorrectly applied a “domestic” interpretation of Article 3 when it should have applied an “adapted approach” for purposes of extradition.

The Grand Chamber further followed a two pronged test to determine when extradition would or would not violate Article 3. First, petitioners must establish that there is a real risk of receiving a LWOP or worse sentence, and secondly that a mechanism for sentence review does or does not exist in the requesting state. Absurdly, the Court found that the petitioner in Sanchez, an alleged drug trafficker also accused of being connected to a death resulting from a fentanyl overdose, was not at risk of a life sentence.

The judgment in Sanchez has concerning implications. In overturning Trabelsi’s universal Article 3 interpretation, the Grand Chamber has effectively cast aside the universality of the European Convention of Human Rights; creating instead a hierarchy of rights where European citizens will be afforded greater rights and protections under its provisions than non-citizens. Additionally, the ECHR seems to imply that America’s exceptionally limited commutation system does not constitute de facto irreducibility for sentences. Further, the Grand Chamber has seemingly adopted an exceptionally narrow interpretation of when there is genuine risk of life imprisonment; ignoring the historical propensity of the United States to issue exceptionally hefty “tough on crime” sentences.

With the ECHR overruling Trabelsi, it designates the case as nothing more than a mere aberration among its extradition judgments, and heralds a return to a narrow interpretation of Article 3. It will likely be some years before we see another Trabelsi, if ever.

 

For further information, please see:

ECHR – Delivery of the judgment 03/11/2022 – 3 Nov. 2022 

ECHR – Extradition and life imprisonment – Nov. 2022

ECHR – Extradition of the applicant would not be in violation of the European Convention – 3 Nov. 2022

ECHR – SANCHEZ-SANCHEZ v. THE UNITED KINGDOM – STATEMENT OF FACTS AND QUESTIONS – 6 July 2020

Prison Policy Initiative – Executive inaction: States and the federal government fail to use commutations as a release mechanism – Apr. 2022

The Sentencing Project – No End In Sight: America’s Enduring Reliance on Life Sentences – 17 Feb. 2021

ECHR Finds that the Slovenian Courts Violated a Neurosurgeon’s Right to a Fair Hearing

By: Marie LeRoy

Impunity Watch News Staff Writer

STRASBOURG, France – Vinko V. Dolenc, a celebrated neurosurgeon in Yugoslavia, was found to have been denied his right to a fair trial by the European Court on Human Rights (ECHR).  The ECHR found that the Slovenian Court, in recognizing an Israelis Courts judgment, without being sure that the Courts had respected Dolenc’s right to a fair trial, had recognized a judgment that violated Dolenc’s Article 6 § 1 Convention rights.

Picture of Vinko V. Dolenc. Photo curtesy of: https://www.sazu.si/en/members/vinko-v-dolenc

In May 1995 an Israeli citizen sought damages from Dolenc for medical negligence during a surgery he performed that left the patient paralyzed.

In January 1999, the Israeli trial started. Dolenc refused to recognize the Israeli courts authority, arguing that only Slovenia law applied. Dolenc argued that since Israeli and Slovenia had both signed the Hague Evidence Convention, he and his witnesses should be examined only before a Slovenian court. In accordance, Dolenc and his witnesses refused to travel to Slovenia to participate in the trial and refused to testify via video link. The Israeli Supreme Court denied his request and held that testifying over video link was a proper means of testifying. Dolenc continued to argue that testifying over video link was practically impossible.

In February 2003, the Israeli court upheld its earlier judgement, that Dolenc refusing to testify over video link was not because it was practically impossible, and the Court struct Dolenc’s main statement from his file when he continued to refuse to testify. In April 2004, Dolenc dismissed his legal representative and did not appoint a new one. The Israeli court then attempted to allow Dolenc’s witness to testify in Slovenia but no one showed up on the day of testimony. The Court then attempted to have another hearing in Israeli but, once again, no one appeared for Dolenc. The Court then gave Dolenc opportunities to submit his closing statement, but he never did.

On June 9, 2005, the Israeli court found Dolenc fully liable based on the evidence submitted. The court further found that Dolenc “had done everything he could to prevent the examination and had thereby prevented it from discerning the truth”. Through this, Dolenc asserted that he had no knowledge of the hearing dates nor of the opportunities the Court had given him to submit his closing arguments. 

In 2011 the patient appealed to the Slovenian Supreme Court to recognize the Israeli Courts holding. In 2018 the Slovenian Supreme Court found against Dolenc accepting the Israeli reasoning that Dolenc had been given opportunity to participate in the matter, that Dolenc had essentially waived his right to defend himself by dismissing his attorney and not appointing a new one, and the permissibility of disregarding the Hague Evidence Convection (framework for transmitting documents from and to opposing parties) procedure for witnesses.

The ECHR found that the Slovenian court had failed to properly investigate the Israeli’s court judgment. In particular, the ECHR noted that the only evidence considered by the Israeli court was the allegation made by the patient and the evidence put forward by them. The ECHR also noted that the Israeli court had not even attempted to have the Slovenian law expert examined via Hague Convention procedure, which means that the Israeli court applied unfavorable Israeli law to Dolenc without proper consideration.

As a result, the ECHR found that the Slovenian courts had not satisfied themselves that the Israeli trial had been fair, and therefore breached their duty under Article 6, § 1 of the Convention. The ECHR ordered the Slovenian courts to pay 15,600 euros to Dolenc for costs and non-pecuniary damages.

 

For further information, please see:

Dolenc v. Slovenia – ECHR- 20 Oct. 2022

ECHR Demands Poland Pay Pop Singer Ten Thousand Euros in Damages for Violating their Article 10 Freedom of Expression Right

By: Marie LeRoy 

Impunity Watch News Staff Writer

STRASBOURG, France – Dorota Rabczewska, also known as Doda, was issued a bill of indictment for offending two people by insulting the Bible during a television interview. On January 16, 2012, Doda was convicted under Article 196 of the Criminal Code and fined 5,000 Polish zlots (i.e., $1,021.18), fifty times the minimum provided by the law. 

Picture of pop singer, Doda, smiling at camera. Photo courtesy of Wikipedia.com

The conviction was based on statements Doda made during a broadcasted 2009 interview. In the interview Doda was asked about her religious beliefs and she replied that she was more convinced by scientific discoveries, and not by “all those guys who wrote those incredible biblical stories” and were “wasted from drinking wine and smoking some weed.”

The government argued that Doda’s statements were blasphemous and meant deliberately to shock and insult the public. The government believed that they had a duty to protect the religious feelings and beliefs of the Poland population, who were overwhelmingly Catholic.

Doda appealed, arguing that she had not meant to offend but had made the statements jokingly, and that the conviction had been an unjust and a severe infringement of her right to freedom of expression. The government believed that Article 196 of the Criminal Code justified the interference of Doda’s rights, as she should have known that she could be prosecuted for her words.

The European Court of Human Rights (ECHR) reversed, holding that the conviction amounted to an interference in Doda’s freedom of expression right. The ECHR held that while, under Article 10, the government did meet the “prescribed by law” and “necessary in a democratic society” prongs to convict, the court failed to consider whether Doda’s statements amounted to hate speech. The ECHR noted that Article 10 could protect speech that shocked or disturbed but would become inapplicable if the statements were determined to be hate speech.

The ECHR stated that, for Doda’s comments to be considered hate speech, the court should have assessed whether her statements had been capable of “arousing justified indignation” or whether they were meant to incite hatred or otherwise disturb religious peace or tolerance. Because the lower court failed to consider whether Doda’s statements amounted to hate speech, the ECHR found that there was not sufficient reason to justify the conviction and interference with her freedom of speech, and therefore there had been a violation of Doda’s Article 10 right.

The ECHR’s reaffirmation of the necessity of court’s adhering to the careful analysis of individual rights verses governmental competing interests reinforces the fundamental, but delicate, balance between freedom of expression and governmental oversight.

 

For further information, please see:

BBC News – Polish Pop Star Vindicated Over Blasphemy Case – 15 Sept. 2022

ERCH – Rabczewska v. Poland – 15 Sept. 2022