By: Gabriella Kielbasinski

Journal of Global Rights and Organizations, Associate Articles Editor

SOUTH OSSETIA & ABKHAZIA, Russia – The European Court of Human Rights (ECHR) recently reached a verdict thirteen years in the making. On January 21st, the ECHR found that Russia breached six articles of the European Convention of Human Rights due to their actions amidst the Russo-Georgian War of August 2008. This conflict centered around a dispute involving South Ossetia and Abkhazia, two “breakaway provinces” in Georgia. While these provinces are officially apart of Georgia, they proclaim to have separate governments, which were notably unrecognized by most countries. However, Russia did support South Ossetia and Abkhazia, thereby igniting years of tense conflict and eventual violence between Russia and Georgia.

A review of Georgia’s original 2009 application filed with the ECHR reveals a hefty list of claims. Georgia alleged that Russian military and/or separatist forces under Russian control perpetuated indiscriminate, heinous attacks against Georgian civilians. Over the course of a five-day conflict in August 2008, Russia was allegedly responsible for the murder and detainment of Georgian civilians, as well as the looting and burning of their homes. Specifically, Georgia accused Russia of unlawfully detaining ethnic Georgians and subjecting them to “inhuman and degrading treatment.” After what Georgia characterized as a “rampage” through civilian villages, Russia then failed to investigate these war crimes and abuses and prevented 20,000 Georgians from returning to their burned down villages.

In so doing, Georgia asserted that Russia had violated eight articles of the European Convention on Human Rights. These breaches included: “the right to life, the prohibition of torture, the right to liberty and security, the right to respect for private and family life, right to an effective remedy, protection of property, and the right to education and the freedom of movement.”

The ECHR held largely in favor of Georgia, finding Russia in violation of several provisions of international human rights law. It held by sixteen votes to one, that there were administrative practices by Russia which ran awry of “Articles 2, 3, and 8 of the Convention, involving the right to life, prohibition of torture and respect for private and family life, respectively, and Article 1 of Protocol No. 1 to the Convention, involving the protection of property.” Furthermore, the ECHR held several points unanimously. Namely, that the detained Georgian civilians from August 10th through the 27th of 2008 did fall under Russian jurisdiction within Article 1 purposes. Therefore, Russia was further found in breach of Article 3, the prohibition of torture. The ECHR also found that Russia’s subsequent failure to investigate these alleged war crimes and human rights abuses amounts to a breach of international law.

While Georgia’s case highlighted direct Russian involvement in some violations, it did not demonstrate direct involvement in every part of its complaint. However, the ECHR emphasized that as the prisoners of war fell within Russian jurisdiction, Russia was responsible for the actions against them. The court discussed that while some of these actions may have been formally carried out by the self-proclaimed South Ossetian forces, Russia was present and failed to intervene. The ECHR explained that “strong Russian presence and the South Ossetian and Abkhazian authorities’ dependency on the Russian Federation indicated that there had been continued ‘effective control’ over South Ossetia and Abkhazia.” In light of Russia’s effective control, their failure to intervene may be considered “official tolerance.” The Court also explained, that “the de facto South Ossetian and Abkhazian authorities, and the Russian Federation, which had effective control over those regions, had a duty under the Convention to enable inhabitants of Georgian origin to return to their respective homes.”

International reactions to the ECHR’s recent decision to find Russia in breach of the European Convention of Human Rights for their actions in August 2008 has varied. The U.S. Embassy hailed the decision as a human rights victory and a necessary demand for Russia to honor other nations’ sovereignty and territorial integrity. The Embassy added, “[Russia’s] actions threaten the lives, culture, and personal freedoms of people living in these Georgian territories, and deny them the ability to exercise rights and access opportunities that should be available to all Georgian citizens.” Numerous members of the European Parliament (MEPs) also praised the decision, declaring the holding to be “historic,” citing that “[j]ustice prevailed over policy.”

Meanwhile, allies of Russia, such as the Moscow-backed leader of Tskhinvali region/South Ossetia Anatoly Bibilov, have criticized the ECHR decision. Bibliov asserts that Georgia was no victim, but rather a perpetrator of the 2008 violence. Bibliov boils the entirety of the ECHR’s decision against Russia to the West’s “anti-Russian political course.” It has yet to be seen what Russia’s full reaction to the momentous ruling will be; however, given that Russia has previously been reported as on the brink of withdrawal from the ECHR, all eyes should be on Moscow for the Kremlin’s response.

For further information, please see:

Civil Ge – European Court Verdict into Georgia vs. Russia Case over 2008 War – 21 Jan. 2021 

Civil Ge – S. Ossetian Leader Slams ECHR Verdict as ‘Politicized’ – 22 Jan. 2021

CNN – 2008 Georgia Russia Conflict Fast Facts – 31 Mar. 2020

Civil Ge – Int’l Reactions to European Court’s Verdict – 22 Jan. 2021

Guardian – Luke Harding: Russia committed human rights violation in Georgia war, ECHR rules – 21 Jan. 2021

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 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

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 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.