Europe

After Nearly 8 Years, Adeel Muhammad and Ramzan Muhammad Receive the Justice They’ve Been Waiting For

By: Elizabeth Maugeri

Impunity Watch Staff Writer

STRASBOURG, France – The case of Muhammad and Muhammad v. Romania has received substantial notoriety since December 2012. Both men were living in Romania studying at Lucian Blaga University when the Romanian Intelligence Service (SRI) submitted an application to the prosecutor’s office to deem the two men “undesirable” in Romania. Adeel Muhammed had been in Romania for three months, Ramzan, almost four years; both men are Pakistani nationals.

The High Court of Cassation and Justice in Romania. Photo Courtesy of Romania Journal.

The Romanian Intelligence Service (SRI) accused the two men of being national security threats. They were charged with engaging in activities capable of endangering national security under Article 85 §1 of the Romanian Emergency Ordinance (OUG); and also, OUGs 194/2002, sections of 51/1991, and section 44 of 535/2004; all relating to the status of aliens and safeguarding national security. The prosecutor’s office believed these charges were safe under Article 1 Protocol No. 7 of the European Convention on Human Rights on the basis that Romania’s national security was at risk, therefore expulsion was necessary.

The document presented to the Court of Appeals by the prosecutor’s office alleged a connection between the men and al-Qaeda and their involvement in activities that threatened Romania’s national security. During the hearing, the two men were never informed of the charges brought against them because the document presented by the prosecutor’s office was deemed classified. The Court determined the classified documents were admissible as evidence because of their pertinence and conclusiveness under Article 167 of the Romanian Code of Civil Procedure.

The men submitted a request for legal assistance, which the court rejected claiming that since they had failed to file before the trial began, they were unable to request legal assistance. Judgment was delivered on the same day and the men were informed that they were going to be placed in administrative custody awaiting deportation.

After the trial, in a press release, the SRI published detailed information about the case. This included the names of the men and the alleged accusations outlined in the classified documents.

The two men hired lawyers and appealed to the High Court of Cassation and Justice. They submitted a claim for breach of OUG 194/2002 Article 85 §4 in the failure to advise them of the claims; and that even though the accusations had been deemed “classified,” the SRI published them all in a subsequent press release. They submitted documents from their university as proof of good conduct. They also requested the Court obtain their bank statements showing that they weren’t financing terrorist organizations. This was necessary because neither of their lawyers held the proper certificate that allowed them to view the classified documents.

Citing Article 305 of the Code of Civil Procedure, the High Court accepted the university’s good conduct reports but rejected the request to obtain bank statements. The High Court later dismissed the case citing that based on the classified documents, it was clear that the Court of Appeals had issued a correct judgment. Adeel and Ramzan both left Romania at the end of December.

Nearly eight years after Adeel and Ramzan left Romania, the Grand Chamber of the European Commission on Human Rights issued a judgment in favor of them. It was determined that the procedural limitations imposed on the men were a violation of their Article 1 Protocol No. 7 right for procedural safeguards relating to the expulsion of aliens.

The decision was based on a multitude of questionable tactics applied by the Court of Appeals and the High Court. The Grand Chamber noted that the domestic courts never gave clear and concrete reasoning for not allowing the men to obtain knowledge as to the charges against them nor did they assess the need to withhold the information. The Chamber also stated that it was never determined that the facts provided in the Prosecutor’s claims were verified or credible. The Grand Chamber took aim at the press release acknowledging the contradictory nature of withholding the information only to release it to the public the next day. They did not believe that the press release was an appropriate way for the men to learn of the accusations against them.

The Grand Chamber further explained that Court of Appeals only provided the men the numbers of the legal provisions, not names of the laws under which the charges were brought. Neither the Court of Appeals nor the High Court informed them of their Article 1 Protocol No. 7 procedural rights or made them aware of any domestic laws or safeguards that might have aided in their defense. The mention of obtaining lawyers was never addressed during the trial, and the Grand Chamber noted that the courts failed in suggesting lawyers with the proper certification to read the classified documents.

The limitations imposed by the courts counteracted the basic rights allotted under the ECHR and significantly disadvantaged the men throughout the trial. The judgment called for Romania to pay 10,000 euros to each man and 1,365 euros jointly for costs and fees.

For further information please see:

ECHR – Grand Chamber, Case of Muhammad and Muhammad v. Romania (Application no. 80982/12) – 15 Oct. 2020

ECHR – Press Release – Violation of Convention in view of significant limitations imposed on applicants’ right to be informed of reasons for expulsion – 15 Oct. 2020

Strasbourg Observers – The case of Muhammad and Muhammad v. Romania: the first Grand Chamber judgement on Article 1 of Protocol Nr. 7 ECHR procedural safeguards with regard to expulsion of aliens) – 29 Oct. 2020

Romania Journal.ro – Supreme Court Refers To The Court of Justice Of the EU The ‘Bule Gala’ File, Trial Procedures Suspened – 23 Apr. 2019

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.

ECHR Rules Russia Can Compensate Prisoners for Inadequate Detention Conditions

By: Genna Amick

Journal of Global Rights and Organizations, Associate Articles Editor

MOSCOW, Russia – On April 9, 2020, the European Court of Human Rights (“ECHR”) ruled on the admissibility of six applicants who applied for compensatory damages under Russia’s 2019 Compensation Act.

Entering into force in January 2020, the Compensation Act provides detainees who are held in pre-trial detention facilities with financial compensation if they suffered from inadequate detention conditions that violated national or international standards. Russia adopted the Compensation Act in response to rulings from two earlier cases from the ECHR, which required that Russia take action regarding the inhumane, degrading conditions of their pre-trial detention centers.

One of the main issues faced by pre-trial detention centers in Russia is overcrowding. This has been a problem for years, likely due to Russian courts approving prosecutorial requests for pre-trial custody in 90.7% of cases. The complaints of the six applicants in this case all involve alleged overcrowding.

The applicants, who filed on various dates in 2017 and 2018, relied on both Article 3 and Article 13 of the European Convention. Article 3 prohibits inhuman or degrading treatment. Applicants used Article 13, which ensures the right to an effective remedy, to complain that Russia lacked an effective domestic remedy for their inhumane pre-trial detention conditions. Although the applicants filed their complaints two to three years before the Compensation Act went into effect, the Court did not review their applications until after the Act was in effect. Therefore, all six applicants’ claims were deemed inadmissible as the Court held that the Compensation Act is an effective domestic remedy to their claims.

The ECHR found the Compensation Act to be an effective method of compensatory redress for applicants who had already been released from a pre-trial detention center but had suffered through improper detention conditions while there. The Court based this ruling on a number of factors, such as that the remedy has the requisite procedural guarantees, it is accessible to the people who may need it, and it offers applicants a reasonable likelihood of success. The Court also based their decision on an assumption that claims would be processed in a reasonable time period and that compensation would be paid promptly to applicants who qualified for redress.

The Court stated that released detainees may qualify for compensation under the Compensation Act if, during their detention, they did not receive the standard amount of space per detainee that is required under Article 3 of the European Convention, which is 3 square meters per detainee. All six applicants’ complaints alleged they received less than 3 square meters; therefore, they are all eligible to apply for redress under the Compensation Act. Since the applicants at issue filed a few years before the Act went into effect, they have 180 days from the publication of the ECHR’s ruling to avail themselves of the remedy provided by the Compensation Act.

Despite the ECHR finding the Compensation Act to be an effective remedy for released detainees, the ECHR reserved their judgment on whether the Act can be effective as a preventative remedy for applicants who are still being detained.

For further information, please see:

HUDOC – Shmelev and Others v. Russia – remedies for complaints about poor conditions of detention – 9 Apr. 2020

Human Rights Watch – Russia’s Pretrial Prisons Vulnerable as COVID-19 Spreads – 24 Mar. 2020

Russia’s Criminal Investigation Procedures Don’t Comply with Convention on Human Rights

By: Jacob Tyson

Impunity Watch Staff Writer

STRASBOURG, France – On February 4, 2020, the European Court of Human Rights (“ECHR”) found the Russian government responsible for 29 cases of torture and inhuman or degrading treatment by police officers, violations of Article 3 and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and awarded 835,000 euros in pecuniary damages to the victims. The treatment the victims received included electric shock, strangulation, needles being placed under fingernails, rape, and threats of torture toward family members.

Man is arrested by Russian law enforcement. Photo Courtesy of The Moscow Times/AP.

The case revolved around whether the complaints were credible and admissible even though they relied on faulty investigations. The Court opined that medical examinations, especially in cases of ill-treatment toward prisoners and detainees, are an essential safeguard of human life and the justice process. However, without this information, human rights investigations can be inadmissible in court. Here, multiple applicants were not examined until weeks after their complaints of torture. Upon examination, the forensic experts were not provided with enough information which made it impracticable for the experts to create an accurate picture of what happened to these prisoners. The experts, instead, relied on the pre-investigation inquiry by the Russian authorities.

According to the Court, this was an inadequate effort by the Russian government. The Court held that the mere carrying out of a pre-investigation inquiry under the Code of Criminal Procedure of the Russian Federation is insufficient to comply with Article 3 of the Convention. “It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out,” the Court wrote.

This could have a significant impact on criminal procedure in Russia, as well as other Council of Europe member states, to ensure more thorough and accurate investigations into police brutality and inhumane prison practices. However, since 2015, Russian President, Vladimir Putin, signed a bill allowing the Constitutional Court to circumvent rulings of the ECHR and any other rulings by international human rights bodies in an effort to protect Russian legal sovereignty. It is unlikely this ruling will affect the way Russia conducts its investigations in the future or in its 15,000 currently pending ECHR applications.

For further information, please see:

European Court of Human Rights – Applications nos. 47821/09 against Russia – 4 Feb. 2020

МБХ – ЕСПЧ Присудил Россиянам 1 Млн Евро за Незаконные Обыски и Пытки в Полиции – 4 Feb. 2020

The Moscow Times – Russia Ordered to Pay $1M to Police Brutality Victims – 5 Feb. 2020

ECHR Rules Spain Did Not Breach the Convention in Returning Migrants to Morocco

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On February 13, 2020, the European Court of Human Rights (“ECHR”) ruled that Spain did not breach the European Convention on Human Rights (“the Convention”) in returning migrants to Morocco for attempting to cross the fences onto European Union territory in the case of N.D. and N.T. v. Spain.

Police office scales fence climbed by migrants at Melilla border. Photo Courtesy of AFP.

On August 13, 2014, hundreds of migrants attempted to storm their way onto European Union territory by scaling fences to reach the city of Melilla, a Spanish enclave surrounded by Moroccan territory. Moroccan police were able to prevent about 500 migrants from scaling the outer fence, but around a hundred migrants succeeded, with 75 migrants reaching the top of the fence and a few landing on the other side on Spanish soil. Those who reached the soil were met by members of the Guardia Civil, the Spanish law enforcement, while others remained at the top of the fence.

Two individuals, N.D., a national of Mali, and N.T., a national of Côte d’Ivoire (“the applicants”), were of the few that remained at the top of the fence. After a few hours, the two climbed down and were apprehended by the Guardia Civil who “reportedly handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities.”

The applicants lodged applications with the ECHR on February 12, 2015 alleging that there had been a violation of Protocol No. 4 Article 4 which prohibits collective expulsion of aliens and Article 13 which secures the right to an effective remedy. Through both Articles, the applicants claim that they were forced back to Morocco with “no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.”

On October 2, 2017, in its Chamber judgment, the Court held that there was a violation of Article 4 of Protocol No. 4 and a violation of Article 13 in conjunction with Article 4 of Protocol No. 4. On December 14, 2017, the Spanish Government requested the case be referred to the Grand Chamber under Article 43 of the Convention. On January 29, 2018 the Grand Chamber accepted and a hearing was held on September 26, 2018.

The Court reasoned that the applicants had attempted to enter Spanish territory in an unauthorized manner by taking advantage of a large crowd. In accordance with the Convention, States are required to “make available genuine and effective access to means of legal entry [and] should allow all persons who faced persecution to submit an application for protection.” As a result of not using the proper channels, States can refuse entry to their territories to aliens and asylum-seekers who fail, without convincing reason, to follow such requirements.

Regarding the applicants Article 4 of Protocol No. 4 claim, the Court noted that Spanish law had several possible means available to those seeking admission to their territory, such as applications for visas or international protection, therefore the State had provided genuine and effective access to its territory. Applicants’ did not allege they tried to enter Spanish territory by any legal means. The court concluded that the applicants had “placed themselves in jeopardy by participating in the storming of the border fences [and their expulsion was a] consequence of their own conduct.”

Regarding the applicants’ Article 13 claim taken in conjunction with Article 4 of Protocol No. 4, the Court explains that “the lack of an [individualized] procedure for [the applicants’] procedure for their removal had been the consequence of the applicants’ own conduct in placing themselves in an unlawful situation by crossing the Melilla border protection structures… at an [unauthorized] location.” Further, the Court concluded that there had not been a violation of Article 4 of Protocol No. 4 or Article 13 in conjunction with Article 4 of Protocol No. 4.

European Court of Human Rights – Forthcoming Grand Chamber judgment in a case concerning the immediate return of two migrants who tried to enter Spain by climbing the fences of the Melilla enclave – 6 Feb. 2020

European Court of Human Rights – Spain did not breach the Convention in returning migrants to Morocco who had attempted to cross the fences of the Melilla enclave – 12 Feb. 2020

European Court of Human Rights – Case of N.D. and N.T. v. Spain – 12 Feb. 2020

The Local Spain – Spain cleared by European Court of Human Rights over Removal of migrants at border fence – 13 Feb. 2020