European Court of Human Rights

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 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

Finland Sanctioned by the European Court of Human Rights Following the Murder of Expelled Asylum Seeker

By: Susan Mintz

Journal of Global Rights and Organizations, Associate Articles Editor 

HELSINKI, Finland — The European Court of Human Rights (“ECHR”) has sanctioned Finland in relation to the murder of an Iraqi asylum seeker. His claim for asylum was denied after Finnish authorities determined he was not likely to be in danger of persecution in Iraq. Following his expulsion to Iraq in December of 2017, within weeks of his return he was shot and killed. An application against the Republic of Finland was submitted by his daughter to the ECHR for violating Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Iraqi asylum seeker’s daughter, who fled with him and her brother to Finland, requested the court not use her name as was referred to in the judgment as N.A.

N.A.’s father was a Sunni Muslim man from Baghdad. Under Saddam Hussein’s regime he served as an army major. After the U.S. invasion he worked with an American logistics company before becoming a civil servant in the Office of the Inspector General, where he was the only one with a Sunni background. In his last year at the Office, as the lead officer his work included conducting internal investigations, dealing with human rights crimes, and corruption.

In early 2015, a coworker physically assaulted and threatened to kill N.A.’s father following a disagreement. Shortly after the incident, his attacker was transferred to the intelligence service and promoted. In February, an attempt on his life was made when he was shot at leaving work. When the police failed to follow up on his report of the shooting, N.A.’s father resigned his job due to the lack of protection offered by the Iraqi authorities. He and his wife went into hiding after narrowly surviving a car bomb. After the applicant, N.A., escaped an attempted kidnapping, N.A. fled with her father and brother to Finland and applied for asylum.

The Finnish Immigration Service found N.A.’s father credible and accepted the facts established by his account of his history and the events leading up to his flight from Iraq. Nevertheless, his asylum claim was denied because the Service determined that attack by his coworker was a personal matter and the attempts on his life were part of the general violence in Baghdad and not specifically directed at him or related to his Sunni background. His appeals to the Administrative Court and Supreme Administrative Court were denied without permitting oral argument. Under an enforceable order of removal, N.A.’s father returned to Iraq under Finland’s voluntary returns program on November 29, 2017. Following his return, N.A. learned that her aunt’s home, where the family had been in hiding, had been attacked. She learned of her father’s murder a few weeks later.

The ECHR ruled that Finland violated N.A.’s father’s right to life under Article 2 and the prohibition on torture, inhuman or degrading treatment or punishment under Article 3 because the authorities knew or should have known that conditions in Iraq and his personal circumstances presented a real risk of persecution or death of N.A.’s father in Iraq. In reaching this finding, the ECHR rejected claims by Finnish authorities that N.A.’s father had waived all claims under the Convention for the Protection of Human Rights and Fundamental Freedoms when he accepted voluntary return, and that he failed to demonstrate a sufficient likelihood of future persecution.

While the ECHR declined to rule on whether rights under Article 2 and 3 could ever be waived, under the circumstances of this case there was no waiver of rights. To waive a right, the waiver must be under free will, unequivocal and attended by minimum safeguards. Although N.A.’s father used the voluntary return program, the court found that he did not have a genuinely free choice in the matter given that the alternative was detention and forced deportation to Iraq, which would alert the Iraqi authorities of his presence.

The ECHR also found that the Finnish Immigration Service failed to properly assess the asylum claim of N.A.’s father. By finding he credibly established the facts of his account, the Finnish Immigration Service necessarily accepted as true his background, work history, the attempts on his life and the circumstances of his flight from Iraq. However, in evaluating N.A.’s father’s claim, the authorities failed to consider the accumulation of the factors that, taken together, showed an increased risk of persecution. In particular, the ECHR noted that his account supported an inference that the return of N.A.’s father would be of interest to Iraqi authorities, as well as non-State actors, showing that he was at risk of being a target of persecution.

Violence against Sunni Muslim men by Shia militias was well documented at the time the asylum decision was made, as were killings of Iraqis who had worked with Americans. While no single factor established a risk of harm or death, taken together all the circumstances accepted by the Finnish authorities clearly established the risk to N.A’s father.

In the wake of the ruling a suspension of deportations was announced by Minister of the Interior Maria Ohisalo, and the Helsinki Police Department. Although the Finnish Immigration Service previously claimed that voluntary return to Iraq had “succeeded to a fair extent,” the agency is now reviewing 500 orders of expulsion to Iraq. 

For further information, please see:

European Court of Human Rights – Application no. 25244/18 N.A. against Finland – 23 May 2018

European Court of Human Rights – Case of N.A. v. Finland Judgment – 14 Nov. 2019

Finnish Minister of the Interior – Press Release – 14 Nov. 2019

Foreigner.FI – Police suspend deportations to Iraq after Human Rights Court sanction – 18 Nov. 2019

ECHR Says Ex-Brother and Sister-in-Law Have Right to Marry in Greece

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

ATHENS, Greece — On September 5, 2019, the European Court of Human Rights (“ECHR”) decided that legislation preventing marriage between ex-siblings-in-law is a violation of the right to marry.

Georgios Theodorou and Sophia Tsotsorou were married in 2005, just one year after George was divorced from his previous marriage to Tsotsorou’s sister. After George and Sophia wed, Sophia’s sister complained about the union to a local prosecutor, arguing nullity on the grounds of prohibited kinship between two spouses. In 2010, the marriage was annulled by the Regional Court on the basis of Article 1357 of the Greek Civil Code, which forbids marriage between persons related by collateral descent up to the third degree. The court reasoned that since Theodorou and Tsotsorou were second-degree relatives, their marriage was barred for reasons of decency and respect for the institution of the family. Theodorou and Tsotsorou’s subsequent appeals were dismissed, and their marriage was ultimately annulled in June 2015.

In 2015, Theodorou and Tsotsorou lodged a complaint with the ECHR, citing a violation of Article 12, which proscribes the right to marry. Placing particular importance to this point, the Court noted that a consensus had developed in the marriage of ex-sisters-in-law and brothers-in-law among the member states of the Council of Europe. Only Italy and San Marino had introduced barriers to such a marriage, but these obstacles were not absolute.

The Court also noted that Theodorou and Tsotsorou had not faced any problems prior to getting married and the national authorities had not raised any objections. Tsotsorou’s sister had not complained about the marriage until approximately a year and a half later, and the prosecutor filed a formal complaint two years after the marriage. Relevant authorities only issue a marriage license after certain legal conditions have been met. Here, these authorities did not express any doubts prior to issuing this license, and for more than ten years, the couple enjoyed legal and social recognition of a married relationship and the protection provided exclusively to married couples. Lastly, the Court also observed that the Government’s arguments concerning “biological considerations” and the risk of confusion were unconvincing.

As a result, the Court held that Article 12 had been violated because the annulment of the marriage had disproportionately restricted Theodorou and Tsotsorou’s right to marry.

This decision bodes well for Italy and San Marino, the remaining members of States of the Council of Europe where such a marriage is still forbidden. Other regions of the world may also benefit from this decision, where ex-brothers and sisters-in-law’s right to marry is taboo. Lastly, a broad interpretation of this case can help other parties under Article 12 as well, which states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.”

For further information, please see:

European Court of Human Rights – Judgement Theodorou and Tsotsorou v. Greece – legislation preventing the marriage of former brothers- and sisters-in-law – 5 Sept. 2019

Law and Religion UK – Marrying a Non-Deceased Wife’s Sister? Theodorou and Tsotsorou – 5 Sept. 2019