Europe

U.K. Government Responds to British Supreme Court Decision on Migrant Policy with New Treaty

By: Christina Bradic

Impunity Watch News Staff Writer

 UNITED KINGDOM – On December 5, 2023, the government of the United Kingdom responded to a November Supreme Court decision, declaring the UK and Rwanda Migration and Economic Development Partnership unlawful. They signed a new treaty that will relocate migrants arriving in the United Kingdom to Rwanda for asylum processing and thereby barring their return to the United Kingdom.

 
Migrants claiming to be from Darfur, Sudan cross the English Channel in an inflatable boat near Dover, Britain, 8/4/21 | Photo courtesy of Reuters.
 

According to The Migration Observatory at the University of Oxford, approximately 46,000 people crossed the English Channel in 2022 in small boats, with over 90 percent of those people making claims for asylum. In response to the large number of migrants crossing the English Channel, the British Government proposed a plan in April 2022 that would deport migrants arriving in the United Kingdom to the country of Rwanda for asylum processing and relocation. There, Rwandan officials would oversee Asylum conditions and decisions. Under the UK and Rwanda Migration and Economic Development Partnership, the United Kingdom would provide Rwanda up to £120 million ($152 million USD) over five years.

The first flight to deport migrants to Rwanda was scheduled for June 14, 2022. However, on the morning that the flight was scheduled to depart for Kigali, the European Court for Human Rights issued an injunction against the United Kingdom, prohibiting the flight until there was further investigation into the legality of the policy.

On December 19, 2022, the High Court of England and Wales ruled that the policy was legal and did not breach Britain’s obligations under the U.N. Refugee Convention or other international agreements. On June 29, 2023, a Court of Appeals of England and Wales overruled the lower court decision, declaring the deportation plan as unlawful and violating the European Convention on Human Rights (ECHR). This decision was unanimously upheld by the U.K. Supreme Court on Nov. 15, 2023.

At the heart of the decision is not whether relocation to a third country is lawful; the Supreme court has affirmed that sending migrants to a safe third country is not illegal in itself. However, the European Court for Human Rights has declared that when asylum applicants can arguably claim that there is no guarantee that their asylum applications would be seriously examined by the authorities in the third country, and that there could be a possible violation of Article 3 of the U.N. Refugee Convention, that relocation is unlawful. This is the stance the U.K. Supreme court has taken regarding Rwanda.

The U.K. Supreme Court ruled that current Rwandan policy risks violations of Section 3 of the United Kingdom’s Immigration Act of 1971. The Act states that a country is only considered a “safe third country” if there is not a policy of refoulment. The act of returning asylum seekers to a country where their life or freedom would be threatened on the basis of race, religion, nationality, membership of a particular social group or political opinion, there is risk of inhumane torture or treatment. The court also stated the policy was at risk of violating Section 6 of the Human Rights Act 1998 requiring asylum claims to be properly determined under human rights law.

The court cited political repression in Rwanda, political killings, Rwanda’s total rejection of all asylum applications from Afghanistan, Syria, and Yemen between 2020 and 2022.

In response to the Supreme Court ruling, on December 5, the British Home Secretary, James Cleverly, and the Rwandan Foreign Minister, Vincent Biruta, signed a migration treaty that is binding under international law. The treaty addresses concerns raised by the U.K. Supreme Court, including prohibiting refoulment, setting up an independent monitoring committee and an Appeal Body, comprised of judges with humanitarian protection expertise, representing multiple nationalities. Cleverly stated, “Rwanda cares deeply about the rights of refugees.”

Critics say that the treaty is the British government’s plan to circumvent a human rights ruling of the Supreme Court, making it discreditable and susceptible to being overturned.

For further information, please see:

Aljazeera – UK home secretary signs new asylum treaty in Rwanda – 5 Dec. 2023

Associated Press – UK top court says a plan to send migrants to Rwanda is illegal. The government still wants to do it – 15 Nov. 2023

Barron’s –The UK’s Rwanda Migration Policy: A Timeline – 5 Dec. 2023

BBC News – Supreme Court rules Rwanda asylum policy unlawful – 15 Nov. 2023

BBC News – What is the UK’s plan to send asylum seekers to Rwanda? – 5 Dec. 2023

CNN – UK’s Rwanda deportation plan ‘unlawful,’ court of appeal rules – 29 Jun. 2023

European Court of Human Rights – Guide on case-law of the European Convention of Human Rights-Immigration – 31 Aug. 2022

GOV.UK – Treaty signed to strengthen UK-Rwanda Migration Partnership – 5 Dec. 2023

Royal Courts of Justice – AA-v-SSHD judgment – 29 Jun. 2023

The Guardian – What is the ECHR and how did it intervene in UK’s Rwanda flight plans? – 15 Jun. 2022

The Migration Observatory – People crossing the English Channel in small boats – 21 Jul. 2023

United Kingdom Supreme Court – R (on the application of AAA (Syria) and others) v Secretary of State for the Home Department – 15 Nov. 2023

ECHR Delivers Verdict on Gërdec Ammunition Depot Explosion Case

By: Firdevs Okatan

Impunity Watch Staff Writer

STRASBOURG, France – On November 7, 2023, the European Court of Human Rights (ECHR) reached a decision in the case of Durham and Others v Albania, addressing the adequacy of the investigation into a devastating explosion at the Gërdec weapon decommissioning facility in Albania.

 
March 15, 2008, marked a tragic event at a facility located in Gërdec, Albania, leading to the unfortunate loss of 26 lives and injuries to approximately 300 individuals | Photo Courtesy of Wikipedia.
 

On March 15, 2008, a massive explosion occurred at the Gërdec facility, resulting in 26 fatalities and around 300 injuries. Some of the applicants to the court had family members injured or killed in the explosion, while others were themselves severely injured as they were working at the facility. Investigations revealed numerous safety violations, including the absence of required licenses, inadequate training, and violations of military regulations.

Indictments were filed against 29 individuals, including a former Minister of Defence, but the prosecution against the former minister was discontinued due to parliamentary immunity. Civil claims were lodged by some applicants against the accused, which were separated from the criminal proceedings. The applicants argued that this separation deprived them of participation in the criminal trial, violating the principle of adversarial proceedings.

Ultimately, 24 of the accused were found guilty of various criminal offenses related to the Gërdec incident. However, some sentences were reduced, and the applicants were left without a final conclusion regarding the responsibility of the former Minister of Defence.

The ECHR concluded that the investigation was generally adequate in establishing the circumstances and identifying those responsible for the incident. However, it found a violation of the procedural aspect of Article 2 of the Convention, as the applicants were denied effective participation in the criminal proceedings.

Regarding the substantive aspect of Article 2, the Court found that applicants who had accepted compensation had renounced further use of national remedies, while those who had not pursued civil claims had not exhausted all available legal avenues.

The Court ordered Albania to pay compensation to the applicants for non-pecuniary damage and costs and expenses.

For further information, please see:

Albania Daily News – Gërdec case, Strasbourg Court decides in favour of the affected families – 7 Nov. 2023

ECHR – Durdaj and Others v. Albania – 7 Nov.  2023

ECHR – Judgment concerning Albania – 7 Nov. 2023

European Convention on Human Rights – 1950

LawEuro – Case Of Durdaj And Others v. Albania – 63543/09 and 3 others. The application concerns the explosion at the Gërdec facility for dismantling decommissioned and obsolete weapons – 7 Nov. 2023

 

 

 

ECHR Finds Italy Violated Residents’ Human Rights Over Pollution from the Campania Garbage Crisis

By: Johannah Brown

Impunity Watch News Staff Writer

NAPLES, Italy – In the case Locascia and Others v. Italy, the European Court of Human Rights (ECHR) issued a preliminary ruling in favor of the applicants. The case, initially filed in 2010 by nineteen residents from the Caserta and Naples provinces, revolves around a state of emergency declared in 1994 over the mismanagement of the waste cycle that lasted for more than a decade. The ruling found that Italy’s handling of the 15-year-long garbage crisis violated the human rights of the residents. The Court determined that Italian authorities had contravened Article 8 of the European Convention on Human Rights, which safeguards the right to respect for private life and home. The violations stemmed from their failure to ensure proper waste collection, treatment, and disposal and neglecting to take the necessary precautions to protect the applicants’ human rights.

 
Streets of Naples strewn with uncollected Garbage 2010 | Photo Courtesy of AFP/Roberto Salmone
 

In 1994, Italian authorities appointed a special commissioner to take control of the waste cycle, which had previously been under the unofficial control of organized crime (the Camorra). The Camorra had been profiting from controlling dumps in the region and engaging in the illegal business of transporting waste from the northern industrial areas and dumping it in local sites. Over time, both legal and illegal dumps filled, interrupting service and accumulating garbage in the streets and neighborhoods. The crisis disrupted daily life, impacting mobility, prompting school closures, and affecting local markets, forming the basis for the Article 8 complaints.

The court’s ruling also addressed the environmental effects of a dumping site outside Naples called Lo Uttaro. Three decades of illegal dumping and burning of trash led to severe groundwater contamination, resulting in multiple bans on the use of groundwater in the area and air pollution affecting residents’ health. Despite the site being closed in 2001 and the awareness of environmental hazards, authorities reopened the site in 2007. During this period, several environmental studies, including one by the World Health Organization (WHO), revealed significantly higher cancer mortality rates in the provinces of Naples and Caserta compared to the rest of the Campania region, as well as more frequent signs of congenital malformations. According to the court, Italy has still not fully implemented plans to secure and clean up the site, and there was no clear timeframe to do so.

The recent ruling by the ECHR was based on these studies, as well as various judicial and administrative decisions, including judgments from the Court of Justice of the European Union (CJEU). While the court did not pinpoint responsibility for the crisis, it ruled—concerning the inadequate handling of waste collection, treatment, and disposal—that the Italian authorities had violated the applicant’s right to private life and home. Regarding the complaint about the clean-up of Lo Uttaro, the Court ruled that authorities failed to take the necessary measures to protect the applicants’ rights, therefore violating Article 8 of the Convention.

The judgment is a Chamber Judgment and is not final. If the ruling is upheld, Italy must submit a plan outlining the actions they intend to take in response to the ruling.

For further information, please see:

ECHR – Court judgment finds violation of Article 8 of the European Convention of Human Rights – 19 Oct. 2023

ECHR – Communicated Case – 19 Residents of Italy claiming a violation of Article 2 and Article 8 based on the Campania Garbage Crisis from 1994-2009 – 05 Mar. 2013

EU Law Live – ECtHR finds violation of human rights in Campania Waste Crisis – 19 Oct. 2023

ABC News – European Court finds Italy violated human rights over Naples Garbage Crisis – 19 Oct. 2023

Reuters – Mafia involvement in Naples Garbage Crisis – 9 Jan. 2008

 

 

ECHR’s Grand Chamber to Hear Case Against World Athletics Regulations Requiring Hormone Treatment for Female Athletes

By: Garrison Funk

Impunity Watch News Staff Writer

STRASBOURG, France – On November 6, 2023, the Grand Chamber of the European Court of Human Rights (ECHR) accepted the referral of Semenya v. Switzerland, a case challenging the decision of the Swiss Federal Tribunal’s refusal to overturn regulations issued by World Athletics restricting eligibility for women’s athletic competitions.

 
Caster Semenya after winning the woman’s 800m at the 2018 Commonwealth Games in Australia | Photo Courtesy of AP News, Mark Schiefelbein
 

The case, filed by two-time Olympic gold medalist Caster Semenya, challenges the 2018 regulations instituted by World Athletics which limit hormone levels in female athletes for certain athletic events.

Born with differences of sexual development (DSD), Semenya has naturally elevated levels of testosterone. Under the World Athletics regulations, Semenya and all other female athletes with DSD would be required to submit to hormone-suppressing treatment for six months in order to compete in female track events between 400m and the mile.

This is not World Athletics’ first attempt to institute hormonal restrictions on women’s athletics. World Athletics (formerly the International Association of Athletics Federations) first introduced “hyperandrogenism” regulations in 2011, which instituted a ban on any female athlete who’s androgen levels fell within the male range.

These regulations were challenged by Dutee Chand in 2014 after World Athletics deemed her ineligible to compete. The Court of Arbitration for Sport (CAS) partially upheld Chand’s appeal and subsequently suspended the World Athletics regulations.

Following this decision, World Athletics withdrew the regulations. In 2018, it instituted the “Athlete with Differences of Sexual Development” regulations at issue which require any female athlete with DSD to reduce her blood testosterone to below five nmol/L for six months prior to competition and maintain these levels in order to compete.

In compliance with her arbitration clause, Semenya originally filed her case with CAS on June 18, 2018. The CAS found the World Athletics regulations to be discriminatory but held that such discrimination was a necessary, reasonable, and proportionate means of upholding the integrity of female athletics. Semenya’s subsequent appeal to the Swiss Federal Tribunal (SFT) was dismissed.

Following dismissal by the SFT, Semenya filed the present case against Switzerland in the ECHR, alleging violations of Article 14 in conjunction with Article 8 for failing to provide sufficient institutional and procedural protections against discrimination and Article 13 for breaching her right to an effective remedy.

The ECHR ruled in Semenya’s favor on July 11, 2023, and the Swiss government subsequently requested the matter be referred to the Grand Chamber for reconsideration. The grant of referral was approved on November 6, 2023.

For further information, please see:

BBC News – Caster Semenya: Double Olympic Champion ‘not ashamed of being different’ – 7 Nov. 2023

CAS – Mokgadi Caster Semenya v. International Association of Athletics Federations – 30 Apr. 2019

CNN – Caster Semenya says she went through ‘hell’ due to testosterone limits imposed on female athletes – 6 Nov. 2023

ECHR – Referral to the Grand Chamber – 6 Nov. 2023

Strasbourg Observers – Caster Semenya v. Switzerland: Eligibility of Intersex Female Athlete in Female Athletic Events – 27 Sept. 2023

World Athletics – IAAF introduces new eligibility regulations for female classification – 26 Apr. 2018

World Athletics – IAAF to introduce eligibility rules for females with hyperandrogenism – 12 Apr. 2011

ECHR Finds Turkish Court Violated Right to Freedom of Expression

By: Jacob Samoray

Journal of Global Rights and Organizations Associate Article Editor

STRASBOURG, France – In reviewing the sentencing of two Turkish nationals, the European Court of Human Rights (ECHR) found that the convictions violated their Article 10 right to freedom of expression. Baran Durukan and İlknur Birol were sentenced by a domestic court for their prior social media posts. Mirroring the Turkish Constitutional Court’s holding, the ECHR also found that the practice of suspension of the pronouncement of the judgement (SPJ) was unconstitutional, striking it from Section 231 of the Turkish Constitution.

 
The Anayasa Mahkemesi, Turkey’s Constitutional Court | Photo courtesy of BBC News: Türkçe
 

Durukan was sentenced in 2018 to over a year of imprisonment for a series of posts deemed to be “propaganda in favor of a terrorist organization.” The posts included pictures and statements supporting the Kurdistan Worker’s Party and the People’s Protection Units, both listed by the government as terrorist organizations. Birol was sentenced to a ten-month internment in 2019 for an offensive tweet made in 2015 referring to the Turkish president as a “filthy thief.” Following both proceedings, the domestic court offered to suspend Durukan and Birol’s judgements under Article 231 of the Turkish Code of Criminal Procedure, which would reduce their convictions to three and five years of probation, respectively.

The ECHR, in reviewing the domestic and Constitutional Court’s findings, found that both the sentences and suspension would likely cause a “chilling effect” upon future expression, and so held that they constituted a violation of each applicant’s freedom of expression. Findings by both courts showed a lack of adequate reasoning by lower courts for suspension of judgements, as well as improper consideration of defendants’ arguments. Requests by defendants for the gathering and examination of evidence were also regularly set aside on irrelevant grounds. In addition, the ECHR noted the common practice of asking defendants to consider SPJ at the outset of litigation, likely as a means of pressuring defendants to accept the suspension to avoid a harsher conviction, while encouraging them to implicitly accept guilt for their charges.

The procedure for objecting to SPJ, the only available remedy, was also found to be ineffective, with both the Constitutional Court and the ECHR finding that sentencing courts rarely relied upon sufficient reasoning in upholding suspensions. The Constitutional Court found that neither Article 231 nor any other applicable legal provision could adequately remedy the chilling effect of SPJ, and so struck the offending language of Article 231 as unconstitutional and ordered the legislature to amend the article to eliminate the issue. The Turkish legislature, in following this order, amended the article to require that any reviewing first instance court must review SPJ decisions on the merits of the case. This amendment has been in effect since April 5, 2023.

As part of its judgement, the ECHR has also required the Turkish government to compensate each applicant €2,600 in non-pecuniary damages.

 For further information, please see:

ECHR – AFFAIRE DURUKAN ET BİROL c. TÜRKİYE – 03 Oct. 2023

ECHR – Judgment Durukan and Birol v. Türkiye – conviction of applicants “with judgment suspended” in freedom of expression cases – 03 Oct. 2023

Library of Congress – Turkey: Constitutional Court Strikes Down Rule Allowing Suspension of Pronouncement of Judgment in Criminal Cases – 18 Aug. 2023

The Constitutional Court of the Republic of Türkiye – Press Release concerning the Decision Annulling the Provision Governing the Suspension of the Pronouncement of the Judgment – 03 Aug. 2023