ECHR Strikes Down Swiss Federal Provision Due to Inherent Gender Discrimination

By: Jamie McLennan

Impunity Watch Staff Writer

STRASBOURG, FRANCE – On October 20, 2020, the European Court of Human Rights (ECHR) unanimously held in B. v. Switzerland that a federal provision from Switzerland violated Article 14 (prohibition of discrimination) and Article 8 (right to respect for privacy and family life) when the Swiss Governmental provision allocated pensions differently to widows and widowers.

The European Court of Human Rights in Strasbourg, France. Photo Courtesy of ECHR.

The applicant, B., is a Swiss national who is the father of two children. The applicant lost his wife in an accident when the children were two and four years old. The Swiss Federal Law on Old-Age and Survivors’ Insurance allowed widows and widowers to collect a pension if they were unable to work while caring for their children. However, the federal statute stated that widowers should be able to return to work when their children reached majority age and no longer needed assistance. In 2010, after the applicant’s youngest daughter turned the age of majority, the Compensation Office notified him that his pension was terminated. He lodged an appeal, which stated that the federal law violated gender equality as protected in the Swiss Constitution. The Cantonal Court dismissed his appeal and acknowledged that the federal statute purposely treated men and women differently when allocating monetary resources for the death of a spouse.

In November of 2012, the applicant filed suit with the ECHR. The suit alleged that the Swiss provision violated Articles 14 and 8, as the statute discriminated against widowed fathers, as compared to widowed mothers, with the sole responsibility of raising their children.

The Court found that the applicant’s complaint fell within the scope of protection for Articles 14 and 8. The purpose of Article 8 is to protect the privacy of matters within families. According to the Court, the applicant’s pension was to enable the surviving parent to control family matters as they pleased. Moreover, the applicant lost his pension at the age of 57 and it would be difficult to envision an older man being forced to rejoin the workforce so many years later. Correspondingly, the Court also affirmed the alleged gender discrimination because the applicant did experience unequal treatment in that his payments were terminated, whereas a widow would not have lost her pension. The Court rejected the Swiss Government’s justification for the difference in treatment on grounds of sex, as the Government argued that there were different roles and statuses between men and women when the legislation was enacted in 1948. In response, the Court reiterated that the Charter is a “living instrument,” which should be interpreted in light of present-day conditions and progressive changes in society.

The Court ordered that the Swiss Government pay the applicant 5,000 euros in respect for non-pecuniary damage and 6,380 euros in respect of costs and damages.

For further information, please see;

European Court of Human Rights- Fact Sheet- 20. Oct. 2020.

European Court of Human Rights- Forthcoming Judgements- 22. Oct. 2020.

European Court of Human Rights- Press Release- 20. Oct. 2020.

Police Brutality Protests in Nigeria: The Lekki Massacre

By: Alexis Eka

Impunity Watch Staff Writer

LAGOS, Nigeria – Following the breakout of protests in Nigeria on October 8, 2020, violent protests occurred at the Lekki Toll Gate on October 20, 2020. The protests in support of the #EndSars Movement resulted in several injuries and at least 56 deaths of Nigerian citizens.

Lekki Toll Gate Part-Destroyed On Night of Protest. Photo Courtesy of BBC.

Protestors have been peacefully demonstrating in the streets of Lagos, demanding an end to the police brutality, extrajudicial executions, and extortion by the Special Anti-Robbery Squad (SARS), the unit of the Nigerian police force that oversees violent crimes.

On October 20, 2020, several peaceful demonstrators were shot when the Nigerian army opened fire on Nigerian citizens at the Lekki Toll Gate. An investigation led by Amnesty International confirmed that the Nigerian army and police have also been found responsible for the deaths of these Nigerian citizens.

The timeline suggests that on the evening of Tuesday, October 20, 2020, army tanks left the Bonny Camp military base and drove on the Lekki-Epe Expressway for approximately seven minutes. They continued toward the Lekki Toll Gate at 18:29 local time. At around 18:45, the Nigerian military opened fire on the protestors. Moments before the Lekki massacre, video footage captured peaceful protestors gathered together at the Lekki Toll Gate. The protestors were seen dancing, singing, and styling their hair. Many of the hair stylists inscribed the words #EndSars on their heads, while speeches were made from a platform at the front of the Lekki Toll Gate.

After the continuous stream of violence that occurred that night, there were several bullet casings found in the streets of Lagos, and the Lekki Toll Gate was destroyed. Members of the Lagos State Judicial panel investigated the allegations of excessive force and visited the Lekki Gate Toll bridge to gain insight into the events that transpired on that evening. The panel was led on a tour by the head of Lekki Concessions Centre, the group that supervises and runs the gate.

Through the investigation, a series of photos were taken and the Judicial panel investigated the room that housed the CCTV Footage from the evening. There were several holes in the windows leading the panel members to assume the holes were caused by bullets. Members of the panel found the bullet casings about one week after Amnesty International announced the shootings. However, the Nigerian police and the army have dismissed Amnesty International’s contentions claiming them to be fictitious and unfounded.

Leaders worldwide have spoken directly to President Muhammadu Buhari to end the violence in the streets of Lagos. Britain’s Secretary of State for Foreign affairs, Dominic Raab, called for an end to the violence in Nigeria and demanded a series of wide-ranging reforms. Rabb stated, “The Nigerian government must urgently investigate reports of brutality at the hands of the security forces and hold those responsible to account.”

Representatives from the African Commission on Human and People’s Rights (the Commission) have voiced sincere concern for the lethal force that has been used against protestors. News outlets including Amnesty International Nigeria, ActionAid Nigeria, and the Human Rights Watch have created a list of demands including an “urgent review and implementation of the various reports on police and security reform” and “the respect and protection for the rights to peaceful protest and assembly.” Like many, the Commission has called upon the Nigerian government to take proactive measures in the process of dismantling the SARS officers including withdrawing military forces and implementing measures for comprehensive reform of the Nigerian law enforcement.

For further information, please see:

African Commission on Human and People’s Rights Press statement on unlawful killings by security forces in Nigeria 22 Oct. 2020

Amnesty International Nigeria: The Lekki Toll Gate massacre – new investigative timeline 28 Oct. 2020

BBC NEWS Bullet Casings found at site of  #EndSars Protest 30 Oct. 2020

Human Rights Watch Nigeria: End Excessive Force Against Protesters 22 Oct. 2020

PRNewswire EndSARS Protest: Majority Condemns Killings and Offers Free Calls to Nigeria 22 Oct. 2020

Reuters Britain calls for an end to violence in Nigeria 21 Oct. 2020

Philippine Government Sparks Anger Over Death of Infant Taken From Incarcerated Mother

By: Elizabeth (Lizzy) Wright

Journal of Global Rights and Organizations, Associate Articles Editor

MANILA, Philippines – On October 9th, 2020, new mother Reina Mae Nasino experienced the worst tragedy possible; her three-month-old baby, River Emanuelle died of pneumonia. However, Nasino’s tragedy greatened when Manila Regional Trial Court 47 decided she would only be allowed to grieve her daughter over a three-day furlough from the jail she was being held in. This was only for the court to amend its decision the next day and allow her 6 hours to attend River’s wake.

Mother Reina at Baby River’s Wake During her 6 Hour Furlough. Photo Courtesy of Aljazeera.

From the beginning of her case, Reina has been fighting against the Philippine Government’s controversial rule. Housing in the Philippines is a major issue, and the city of Manila is said to have the highest rate of homelessness in the world. Reina is a known activist, as a member of the group known as Kadamay. Reina and Kadamay were involved in protesting the privatization of low-income governmental housing by occupying an old homeless shelter that was due to be torn down. This led to officials going to Reina’s residence, searching it, allegedly finding unauthorized firearms, and arresting her. Reina has maintained her innocence and claims that officials planted the weapons.

At the time of her arrest, Reina did not yet realize that she was pregnant with baby River. She only realized she was pregnant during a medical examination in jail a few months later. For the first month of River’s life, she was allowed to remain with Reina, and during this time, she petitioned the court to allow her to breastfeed River for her first year. The court denied this petition and forcibly removed River from Reina’s care only four weeks after birth. Reina then asked the court for a temporary release related to COVID-19 jail downsizing; she was denied.

During the two months between River’s separation from her mother and her death, her health declined significantly and she was hospitalized. Knowing this, Reina continued to ask the court to reunite her with River but was ultimately denied. Reina’s family argues that River’s sickness was due to the inability to breastfeed.

As previously mentioned, Reina was allowed to attend River’s wake for only six hours. During the wake, Reina was escorted by 20 armed law enforcement individuals. Law enforcement then broke up the wake early and had the hearse carrying the coffin speed away. The family chased the hearse on foot as it left. These events have sparked an international outcry and scrutiny regarding the way mothers are treated while incarcerated in the Philippines.

Pregnancy and motherhood are two key things that make female incarceration significantly more complicated than male incarceration. Different countries have created remedies for this issue. For example, some countries allow babies to remain with their incarcerated mothers for up to four years.

The actions of the Philippine Government inflicted serious trauma on Reina, River, and their family. The Government claims that separating babies from their mothers, as a rule, is in the best interest of the child. However, this reasoning is flawed. These babies often end up in foster homes and do not reap any of the benefits that come with being physically close with their mothers. Studies show that physical closeness between mother and baby is good for both; it creates feelings of security for the baby and gives the mother an awareness of the needs of the baby.

Reina and River’s case is, unfortunately, one of many that demonstrate the need for incarceration reform in the Philippines and other countries, like the United States, that routinely separate babies from their mothers.

For further information, please see:

BBC News – Anger over death of baby separated from jailed mother – 15 Oct. 2020

BenarNews – Phillippine Rights Group: Shortened Furlough for Inmate whose Baby Died ‘Merciless’ – 14 Oct. 2020

IBON Media and Communications – While poor remain homeless, private business gains from “socialized” housing – 22 March 2017

Reuters – Manila’s homeless set to move into more empty homes if official handover delayed – 28 Mar. 2018

Reuters: The Wider Image – Jailed Philippine activist lays to rest her three-month-old baby – 16 Oct. 2020

The Journal of Perinatal Education: Advancing Normal Birth – Care Practice #6: No Separation of Mother and Baby, With Unlimited Opportunities for Breastfeeding – Summer 2017

IACHR Condemns Sterilizations of Migrants Detained at ICE Facility in Georgia

By: Shane Kelly

Impunity Watch Staff Writer

GEORGIA, United States of America – On October 30, 2020, the Inter-American Commission on Human Rights (IACHR) condemned the U.S. Immigration and Customs Enforcement (ICE) for sterilization procedures performed on detainees of the Irwin County Detention Center in Ocilla, GA.

Irwin County Detention Center in Georgia. Photo courtesy of CNN.

Specifically, the IACHR admonished the non-consensual hysterectomies and neglect of surgeons, which violated rights to personal security, family, and privacy afforded by the U.S. Constitution. Additionally, the complaint presented by human rights organizations describes the compounding harm caused by the risk of COVID-19 infection, experienced by those subjected to the procedures.

The complaint, presented to the U.S. Department of Homeland Security by numerous social justice organizations, alleges that the migrant detention center in Irwin County, GA, has been sterilizing women with neglect towards general medical care, including a lack of effective measures to prevent the spread of COVID-19. The IACHR has called for the immediate cessation of said practices, as well as investigations and prosecutions of those responsible.

The complaint is corroborated by testimonies from a former nurse, multiple detainees, and an independent medical team. The former nurse describes some shocking stories, including one of a detained immigrant woman who underwent surgery to have one of her ovaries removed because of a cyst, only to awake from anesthesia with a total hysterectomy. The medical team’s report found records of nineteen migrant women who experienced negligent care, discriminatory treatment, and dangerous environments considered inefficient in reducing the spread of COVID-19.

In the international context, the IACHR invokes the Inter-American Court of Human Rights’ decision in the Case of IV v. the State of Bolivia, where the court recognized the autonomy and reproductive human rights of women in their lives and bodies. The IACHR also looks to the “Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking, Resolution 01/20 on Pandemics and Human Rights,” for recommendations and guidelines in remedying this issue.

These violations of migrant women’s rights come amidst a time of harsh scrutiny of ICE’s procedures in its operations of detention centers. Other violations made public include: deplorable living conditions; lack of separation in a global pandemic; and deprivation of the right to freedom of religion. The IACHR is further concerned with the lack of response from the Office of the Inspector General of the Department of Human Services following the publicity of the conditions by the press, the submission of the complaint, and the IACHR’s condemnation. Speaker of the House Nancy Pelosi has also recently urged action from the inspector general to investigate the allegations.

For further information, please see:

Reliefweb – IACHR Expresses Its Concern Over Reports of Sterilizations and Surgical Interventions Without Consent in Migrant Detention Centers in the USA – 30 Oct. 2020

ICDC – Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center – 14 Sept. 2020

CNN – Whistleblower Alleges High Rate of Hysterectomies and Medical Neglect at ICE Facility – 16 Sept. 2020

ECHR Finds Greek Journalist’s Criminal Conviction Violative of Freedom of Expression Rights

By: Christian González

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights (ECHR) has made a ruling finding that the 2013 criminal conviction of Mytilene-based journalist, Efstratios Balaskas – for insulting a high school headmaster – was violative of Article 10 of the European Convention on Human Rights.

Efstratios Balaskas, the journalist criminally convicted for insulting a high school headmaster. Photo courtesy of Inforrm.org.

Mr. Balaskas is a journalist who lives and works in the Greek city of Mytilene, located on the island of Lesbos on the northeastern corner of the Aegean Sea off the coast of Turkey. He was formerly the editor-in-chief of the Lesbos-based daily newspaper, Empros. On November 17th, 2020, he wrote and published an article in Empros called “The headmaster of the 6th High School of Mytilene, B.M., attacks, through his personal blog, the ‘ultimate lie of the Polytechnic school.’” This article was a response to a blog post written by the headmaster of a local high school just two days earlier, identified only as “B.M” by the ECHR.

The blog post in question was a negative opinion piece regarding the anniversary of the Athens Polytechnic Uprising of 1973. The Uprising was a student demonstration, against the government junta, that led to the restoration of the country’s parliamentary democracy. Since then, November 17th is a national holiday in Greece. In Mr. Balaskas’ response piece, he characterizes B.M. as a “neo-Nazi” and the “theoretician of the entity ‘Golden Dawn,’” a far-right and pro-fascist political party in Greece. B.M. responded by filing a criminal complaint against Mr. Balaskas for slanderous defamation.

The Criminal Court of First Instance of Mytilene heard the case on November 27th, 2013, and ruled in favor of B.M., finding that Mr. Balaskas’ characterizations were value judgments based on false allegations. The Criminal Court rejected Mr. Balaskas’ argument that there was a legitimate interest in informing the public of B.M.’s political leanings and changed the offense from slanderous defamation (a punishable offense under the Greek Penal Code § 363) to insult (an offense under § 361), and sentenced Mr. Balaskas to a six-month prison sentence. Mr. Balaskas made an appeal to the North Aegean Misdemeanor Court of Appeal on July 11th, 2016. The Court of Appeals considered B.M.’s history of posting anti-Semitic, pro-Aryan, and pro-Golden Dawn posts, including a post where B.M. stated, “IT IS AN HONOUR TO BE CALLED A NATIONAL-SOCIALIST.” Despite holding that Mr. Balaskas’ article was a value judgment based on factual findings, the Court of Appeals upheld the lower court’s holding and reduced the sentence to three months. A further appeal was dismissed by the Greek Supreme Court, stating that the Court of Appeals’ findings were proper.

The ECHR found that Mr. Balaskas properly brought his interest as a journalist with an interest in informing the public of the national-socialist leanings of B.M., a public figure, to each of the Greek Courts. In doing so, Mr. Balaskas raised, in substance, his freedom of expression rights guaranteed under Article 10 of the European Convention on Human Rights. The ECHR stated that in circumstances such as this, national courts have to conduct a balancing test between freedom of expression rights under Article 10 and privacy protection rights under Article 8. The ECHR found that the Greek courts failed to properly consider Mr. Balaskas’ article as a whole, instead focusing solely on the characterizing descriptions of B.M. It further felt that the Greek courts did not weigh in the intent of B.M. to create controversy through his blog post and that Mr. Balaskas’ language did not rise to the level of insult as to constitute an offense under Greek law, nor were the sentences given justified.

The ECHR noted that this was one of several cases where the courts of Greece have violated Article 10 through their rulings. It awarded Mr. Balaskas 1,603.58 euros (1,907.20 USD) in pecuniary damages and 10,000 euros (11,893.36 USD) in non-pecuniary damages.

For further information, please see:

European Court of Human Rights – Balaskas v. Greece, Chamber Judgement – 5 Nov. 2020

The International Forum for Responsible Media Blog (Inforrm) – Case Law, Strasbourg: Balaskas v Greece, Conviction for insulting headmaster breached Article 10 – 8 Nov. 2020

European Court of Human Rights (Council of Europe) – European Convention on Human Rights – 4 Nov. 1950

European Court of Human Rights – Press Release: Judgement Balaskas v. Greece – journalist’s criminal conviction for critical article of local headmaster (PDF download) – 5 Nov. 2020

Hellenic Parliament – Greek Penal Code – 11 Jun. 2019

Greek Reporter – Athens Polytechnic Uprising: How Greek Students Overthrew a Coup – 17 Nov. 2019