Europe

ECHR Holds Polish Abortion Legislation Violates European Convention on Human Rights

January 18, 2024

By: Molly Osinoff

Impunity Watch News Staff Writer

POLAND – On December 14, 2023, the European Court of Human Rights (ECHR) held that Poland’s legislative amendments that forced a woman to travel abroad to have an abortion breached Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life.

A protest in Krakow, Poland following abortion restrictions | Photo Courtesy of the New York Times.

Poland’s abortion laws are among the most restrictive in Europe. Prior to 2020, abortion was legal in Poland in only three situations: fetal abnormalities, pregnancies caused by rape or incest, and threats to the women’s life or health. In 2020, the Polish Constitutional Tribunal’s ruling restricted abortion access even further. While the latter two reasons remain legal, the Tribunal banned abortions due to fetal abnormalities, which make up approximately 98% of the abortions performed annually in Poland, reasoning that terminating a pregnancy violates the unborn child’s Constitutional guarantee to life. As a result, the 2020 ruling is effectively a total abortion ban.

The plaintiff in the recent case, M.L. v. Poland, was scheduled for a legal abortion in early 2021 in a Warsaw hospital. After becoming pregnant in late 2020, she discovered that the fetus had Trisomy 21, also known as Down Syndrome. On the day before the procedure, however, the Constitutional Court’s judgment went into effect. M.L.’s doctors informed her that she could no longer have an abortion in the facility or in any other medical institution in Poland. As a result, M.L. traveled to the Netherlands, where she had an abortion in a private clinic.

M.L. alleged that she had been forced to make a choice between giving birth to a child with Trisomy 21 and traveling abroad to have an abortion, resulting in severe emotional suffering. The ECHR held in her favor, holding that Poland’s restriction on abortion in the instance of fetal abnormality, when sought for reasons of health and well-being, came within the Article 8 scope of the right to respect for her private life. Further, the Court noted that “private life,” as meant in Article 8 of the Convention, encompasses the right to personal autonomy and personal development and concerns subjects such as gender identification, sexual orientation, sexual life, physical and psychological integrity, including the decision whether to have a child or to become genetic parents.

For further information, please see:

ECHR – M.L. v. Poland – 18 Oct. 2021.

ECHR – Woman Forced to Travel Abroad to Have an Abortion Following Legislating Amendments in Poland Breached the Convention – 14 Dec. 2023.

New York Times – Near-Total Abortion Ban Takes Effect in Poland, and Thousands Protest – 27 Jan. 2021.

New York Times – Poland Court Ruling Effectively Bans Legal Abortions – 22 Oct. 2020.

Pulitzer Center – Poland’s Abortion Ban Is Changing Maternal Health Care – 13 Oct. 2023.

Russia Sends No Representation to ECHR Grand Chamber Hearing Regarding Russian Occupation of Crimea

January 11, 2024

By: Rachel Wallisky

Impunity Watch News Staff Writer

STRASBOURG, France – On December 13, 2023, the European Court of Human Rights (ECHR) held a Grand Chamber Hearing in the case of Ukraine v. Russia (re Crimea). However, the Russian Government failed to notify the court of the names of their representatives prior to the hearing, nor did any representatives appear on its behalf. The ECHR elected to continue with the hearing, pursuant to Rules 64 and 65 of the Rules of the Court. The Ukrainian Government is represented by Marharyta Sokorenko, Ben Emmerson, Iyrna Mudra, Andrii Luksha, and Oleksii Yakubenko.

The ECHR Grand Chamber Hearing of December 13, 2023, in the case of Ukraine v. Russia (re Crimea) | Photo Courtesy of the ECHR.

The Complaints

The Hearing relates to three inter-state applications filed by Ukraine in the ECHR over the past decade. Two applications submitted to the Court by Ukraine in 2014 and 2015 were joined in 2018. The ECHR issued a decision establishing its jurisdiction over the application on December 16, 2020.

The Ukrainian Government argues in its application that Russia has exercised “effective control” over Crimea, the City of Sevastopol, and integral parts of Ukraine since February 27, 2014. By doing so, the Ukrainian Government argues that Russia has violated several Articles of the Convention including Article 2 and Article 3, the Right to Life and Prohibition of Inhuman Treatment and Torture, respectively.

Specifically, Ukraine argues that between February 27, 2014 and August 16, 2015, Russia exercised an administrative practice of “enforced disappearances” of “perceived opponents to Russia,” especially Ukrainian soldiers, ethnic Ukrainians, and Tartars, and that Russia failed to engage in any adequate investigation of those disappearances.

The Hearing

The Hearing began with a reading of a summary of the applications being considered and the complaints surrounding them. The President of the ECHR, Síofra O’Leary, noted that Russia ceased to be a party to the ECHR on September 16, 2022. However, because Russia was a member of the Counsel of Europe at the time of the complaints, it cannot escape its obligations under the Convention. President O’Leary noted that though the ECHR had maintained communication with Russia regarding the allegations made against it by Ukraine, Russia has not communicated with the Court since leaving the ECHR.

When addressing the Court, Mr. Emmerson remarked that it was “unprecedented” that a Hearing continued though only one party was present for arguments. Mr. Emmerson argued that Russia’s “enforced disappearance” practices during its occupation of Crimea fell under Article 2 because the failure of the Russian government to acknowledge that a person had been imprisoned or killed increased the likelihood that they would be subject to inhumane treatment, regardless of if the person is later released or their killing acknowledged.

A ruling from the ECHR can be expected “at a later stage” but a recording of the Grand Chamber Hearing is available on the ECHR’s website.

For further information, please see:

ECHR – European Court of Human Rights Communicates to Russia New Inter-State Case Concerning Events in Crimea and Eastern Ukraine – 1 October 2015

ECHR – European Court of Human Rights Deals With Cases Concerning Crimea and Eastern Ukraine – 26 November 2014

ECHR – Grand Chamber Hearing on Inter-State Case Ukraine v. Russia (re Crimea) – 13 Dec. 2023

ECHR – Interim Measure Granted in Inter-State Case Brought by Ukraine Against Russia – 13 March 2014

ECHR – New Inter-State Application Brought by Ukraine Against Russia – 27 August 2018

ECHR – Rules of Court – 30 October 2023

ECHR – Webcast of Grand Chamber Hearing in Ukraine v. Russia (re Crimea) (nos. 20958/14 and 38334/18) – 13 Dec. 2023

British Government Faces Domestic and International Legal Challenges to Controversial Northern Ireland Act

January 11, 2024

By: Gavin Gretsky

Impunity Watch News Staff Writer

UNITED KINGDOM – The British Government is facing multiple lawsuits both domestically and internationally that challenge the legality of the recently passed Northern Ireland Troubles Legacy Act (Act).

A protest outside of Westminster Square, Westminster against the Northern Ireland Troubles (Legacy and Reconciliation) Bill | Photo Courtesy of Belfast Times

The Act, which was passed by British Parliament in September 2023, is an attempt to bring finality and closure to the Troubles in Northern Ireland. The Troubles was a three-decade long period of sectarian violence between Irish republican paramilitaries, the British army, and unionist paramilitaries which resulted in more than 3,500 deaths and over 47,000 injuries. The Troubles effectively ended with the signing of the Good Friday Agreement in 1998, however over 1,000 deaths from that era remain unsolved.

The Northern Ireland Troubles Legacy Act is modeled after the South African Truth and Reconciliation Commission established by Nelson Mandela after the fall of apartheid. The Act will be implemented by the Independent Commission for Reconciliation and Information Recovery (ICRIR), which will seek to find information on the circumstances of the deaths or injuries of victims of the Troubles and share the information with the families of the victims. Under the Act, perpetrators who provide truthful accounts of their actions to the ICRIR can be granted immunity from prosecution. Additionally, the Act will prevent any new civil cases and inquiries about the Troubles from starting. The Act received fierce opposition from all political parties in Northern Ireland, as well as many victims’ groups and organizations, but was supported by U.K. veteran’s groups and Britain’s governing Conservative party.

Shortly after the Act was passed in September, sixteen separate legal challenges were filed with the U.K. High Court in Belfast, Northern Ireland. Legal representatives of the parties, mostly made up of the families of victims from the Troubles, argue that the Act is unlawful because it is incompatible with international human rights standards, including the European Convention on Human Rights. The parties state that the Act interferes with the justice system by denying victims access to the courts which had been a viable avenue open to victims and their families before the Act’s passage. For example, in 2021 an inquest through the previous system found that ten individuals killed in Belfast in 1971 were unarmed at the time of their deaths and that the use of force by the British army was “clearly disproportionate.” Petitioners also indicated their intention to file applications with the European Court of Human Rights (ECHR).

In addition to domestic legal challenges, the Act is now facing challenges on the international stage. The Republic of Ireland has announced that it will be bringing a case against the United Kingdom at the ECHR. The Irish government’s main concern is the grants of immunity given under the Act which will create a barrier to any other action by victims or their families. Grants of immunity have previously been found by the ECHR to be incompatible with a country’s obligation to maintain means to investigate unnatural deaths and torture, a provision of the Good Friday Agreement signed by the United Kingdom. According to Irish Prime Minister Leo Varadkar, both the United Nations and the Council of Europe support Ireland’s position in bringing this challenge. Conversely, the U.K. government states that Act complies with the ECHR and the Good Friday Agreement because it balances grants of immunity with the investigative powers of the ICRIR.

Further details on the filings and decisions of these cases are forthcoming as the cases progress through their respective domestic and international channels.

For further information, please see:

Aljazeera- Ireland to Launch Legal Action Against UK over Troubles Amnesty Law- 20 Dec. 2023

BBC- Troubles Legacy Bill Enters Law After Receiving Royal Assent- 19 Sept. 2023

BBC- What is the Northern Ireland Legacy Bill? – 5 Sept. 2023

Independent- Ireland to Launch a Legal Challenge Against the UK Government Over Troubles Amnesty Bill – 20 Dec. 2023

Jurist- UK Government Publishes Response to Human Rights Decisions from European Court of Human Rights – 14 Nov. 2023

Jurist- UK High Court Hears Legal Challenges to Recently Enacted Northern Ireland Troubles Bill – 20 Sept. 2023

Sky News – Irish government launches legal challenge against UK’s Northern Ireland Legacy Bill – 20 Dec. 2023

German Court Finds Gambian Man Guilty of Crimes Against Humanity Under Universal Jurisdiction

December 8, 2023

By: Rafael Sbeghen Freitas

Impunity Watch Staff Writer

CELLE, Germany – A former participant in the Gambian death squad, an infamous paramilitary group called “The Junglers,” has been handed a life sentence following the Celle Higher Regional Court’s determination of his guilt for crimes against humanity.

The Gambian defendant, identified as Bai Lowe, in line with German privacy rules, holds a folder in front of his face at the Celle Higher Regional Court in Celle, Germany | Photo courtesy of Associated Press.

The paramilitary organization was established by the former president Yahya Jammeh in the mid-1990s. Jammeh’s 22-year regime was characterized by systematic oppression and pervasive human rights abuses, encompassing torture, extrajudicial executions, enforced disappearances, and sexual violence targeting both real and perceived adversaries.

Court proceedings in Germany revolved around Bai Lowe, a 48-year-old man who was found to be the driver for the “Patrol Team,” a unit of the assassination squad in several of its attacks. Lowe was found guilty of participating in two homicides and one attempted homicide. The latter incident occurred in December 2003, when the court determined that he drove the unit to the location of the attempted assassination of a lawyer who was defending an individual who had fallen out of favor with Jammeh. The victim suffered the loss of a kidney but ultimately survived.

In 2004, the unit, utilizing two vehicles camouflaged as taxis, was responsible for the killing of a prominent journalist, with one of the vehicles being driven by the accused, as per the court’s findings. Subsequently, before the conclusion of 2006, the unit compelled a former soldier, purportedly in opposition to Jammeh, into a vehicle operated by the defendant. They then transported him to an isolated location, where he was shot and buried, according to a court statement.

Bai Lowe’s trial in Germany was made possible by the nation’s legal recognition of universal jurisdiction for severe crimes under international law. This allows the investigation and prosecution of such crimes regardless of where they occurred and the nationalities of the suspects or victims. Given Lowe’s residence in Germany, German authorities were obligated to pursue the case.

The significance of universal jurisdiction cases is growing in international efforts to hold individuals accountable for atrocities, deliver justice to victims lacking alternative recourse, deter future crimes, and prevent countries from becoming safe havens for human rights violators. Numerous European countries are actively engaged in ongoing investigations and prosecutions related to egregious abuses committed abroad, spanning regions such as the Democratic Republic of Congo, Iraq, Liberia, Syria, and Ukraine.

It is expected that authorities in Gambia request Bai Lowe’s extradition from Germany to stand trial. However, the principle of double jeopardy (ne bis in idem) established in international law and the Gambian constitution could preclude Gambia’s judiciary system from bringing charges against him for any of the acts outlined in the current trial indictment.

For further information, please see:

ABC News – Gambian man convicted in Germany for role in killings under Gambia’s former ruler – November, 2023

ECCHR – Verdict in Gambia Atrocity Case – 28 Nov. 2023

Human Rights Watch – Germany: Verdict in Gambia Atrocity Case – November, 2023

Oberlandesgericht Celle – State security proceedings on the suspicion of crimes against humanity in Gambia – March, 2023

The Globe and Mail – German court finds Gambian man guilty of crimes against humanity for death-squad role – November, 2023

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

December 8, 2023

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