European Rights Watch

ECHR Continues Disappointing Extradition Trend – Overrules Trabelsi v. Belgium

By: Nikolaus Merz

Impunity Watch News Staff Writer

STRASBOURG, France – On November 3, 2022, the European Court of Human Rights (“ECHR”) released two judgments regarding extraditions to the United States for instances involving possible life sentencing. In Sanchez v. United Kingdom and McCallum v. Italy, the Grand Chamber found that the extradition of the petitioners – both accused of crimes that could result in possible life sentences in the United States if extradited – was allowed under Article 3 of the European Convention of Human Rights (“Article 3”).

The Grand Chamber delivers its judgment in Sanchez v. the United Kingdom. Photo Courtesy of the European Court of Human Rights.

Article 3 reads, in full; “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The two judgments continue a disappointing trend of the ECHR of interpreting when an extradition violates Article 3 with exceptional narrowness. Since 2001 there has been only a single case, Trabelsi v. Belgium, where the extradition of a petitioner was found to be in violation of Article 3.

In the majority of such extradition cases, the ECHR will generally uphold extraditions because life without parole (“LWOP”) and death sentences in the U.S. can be delayed or forgiven through a variety of legal mechanisms (stays, commutations, pardons, clemency, etc.). Because of these caveats, the ECHR has created a legal fiction that such sentences are not in violation of Article 3 (and therefore extraditions are allowed), because they can technically be reduced to a sentence which would be acceptable under Article 3.

What the ECHR neglects, and what the petitioner in Trabelsi successfully argued, however, is that these sentences are often irreducible de facto. Of the roughly 1.5 million people in prison in the U.S. today, more than 200,000 are serving LWOP sentences or a like equivalent. An incredibly small minority of these cases will likely ever receive commutations. A study of available data for eight northeastern states revealed that between 2005 and 2021 just 210 commutations were granted. For instance, Rhode Island has only granted a single commutation since the 1950’s; a posthumous pardon for a murder from the 1800’s.

Nevertheless, the ECHR held in Sanchez that Trabelsi was to be overruled as a binding decision. The ECHR held that Trabelsi had incorrectly applied a “domestic” interpretation of Article 3 when it should have applied an “adapted approach” for purposes of extradition.

The Grand Chamber further followed a two pronged test to determine when extradition would or would not violate Article 3. First, petitioners must establish that there is a real risk of receiving a LWOP or worse sentence, and secondly that a mechanism for sentence review does or does not exist in the requesting state. Absurdly, the Court found that the petitioner in Sanchez, an alleged drug trafficker also accused of being connected to a death resulting from a fentanyl overdose, was not at risk of a life sentence.

The judgment in Sanchez has concerning implications. In overturning Trabelsi’s universal Article 3 interpretation, the Grand Chamber has effectively cast aside the universality of the European Convention of Human Rights; creating instead a hierarchy of rights where European citizens will be afforded greater rights and protections under its provisions than non-citizens. Additionally, the ECHR seems to imply that America’s exceptionally limited commutation system does not constitute de facto irreducibility for sentences. Further, the Grand Chamber has seemingly adopted an exceptionally narrow interpretation of when there is genuine risk of life imprisonment; ignoring the historical propensity of the United States to issue exceptionally hefty “tough on crime” sentences.

With the ECHR overruling Trabelsi, it designates the case as nothing more than a mere aberration among its extradition judgments, and heralds a return to a narrow interpretation of Article 3. It will likely be some years before we see another Trabelsi, if ever.

 

For further information, please see:

ECHR – Delivery of the judgment 03/11/2022 – 3 Nov. 2022 

ECHR – Extradition and life imprisonment – Nov. 2022

ECHR – Extradition of the applicant would not be in violation of the European Convention – 3 Nov. 2022

ECHR – SANCHEZ-SANCHEZ v. THE UNITED KINGDOM – STATEMENT OF FACTS AND QUESTIONS – 6 July 2020

Prison Policy Initiative – Executive inaction: States and the federal government fail to use commutations as a release mechanism – Apr. 2022

The Sentencing Project – No End In Sight: America’s Enduring Reliance on Life Sentences – 17 Feb. 2021

France Violated Rights of French Children Detained in Syrian Detention Camps by Failing to Repatriate Them, UN Committee Finds

By: Holly Popple

Journal of Global Rights and Organizations, Senior Associate Editor

GENEVA, Switzerland — France violated French children’s rights by failing to repatriate them from Syrian detention camps in which they were detained for years in dangerous conditions, according to new findings issued by the UN Child Rights Committee.

Detainees at a detention camp in northern Syria in 2019. Photo courtesy of The New York Times.

The Child Rights Committee, which monitors States parties’ adherence to the Convention on the Rights of the Child, issued its findings after considering three separate cases filed by a group of French nationals whose relatives were currently detained in Rawj, Ayn Isa, and Hawl camps in northeastern Syria, which is under the control of Kurdish forces.

The three cases involved 49 children who were detained in these camps due to their parent’s alleged ties with Da’esh, an ISIL terrorist group. Of those 49 children for whom the cases were brought, 38 remain detained in these camps without a timeline for release. Most of these children are under twelve and many are as young as five years old.

In these findings, the Committee condemned France’s failure to repatriate these children based on the lack of due consideration given to the best interests of the child victims when reviewing requests for repatriation, in part due to the inhumane and life-threatening conditions endured by detainees. Committee member Ann Skelton commented on the state of the camps, saying, “The children are living in inhuman sanitary conditions, lacking basic necessities including water, food and healthcare, and facing an imminent risk of death.” She recounted the fact that since 2021, 62 children have reportedly died in the camps and called on France to take immediate action to protect the children. This immediate action refers to repatriation when viable but includes additional measures in the meantime meant to mitigate the health and safety risks of detainees while they still reside in Syria.

Health concerns from unsanitary conditions are far from the only issue that implicates human rights violations occurring in these camps. Children are deprived of their right to education, liberty, security, life, and freedom from violence. Physical violence, psychological trauma, harassment, violent extremism, and trafficking are rampant in these camps and pose a daily threat to those who live there.

Many countries have been hesitant to repatriate these children due to both legal and practical concerns, citing national security concerns and logistical difficulty in ascertaining the identity and nationality of the children as top reasons for the failure of repatriation of the children thus far. However, the interests in protecting these children from the harm they endure from continuing to be detained in these camps cannot be justified by the fact of their parent’s alleged ties to ISIL. France and other countries that have the power to repatriate these children must take action to prevent more human rights violations and return them to their country of origin.

For further information, please see:

HIR – French Children in Syria: The Repatriation Question – 13 May 2021

OHCHR – Convention on the Rights of the Child – 2 Sept. 1990

OHCHR – France Violated Rights of French Children Detained in Syria by Failing to Repatriate Them, UN Committee Finds – 24 Feb. 2022

OHCHR – The World Must Bring Children Home from Syrian Detention Camps – 22 Sept. 2021

OSJI – European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria – Jul. 2021

UN News – France Violated Rights of French Children Detained in Syrian Camps – 24 Feb. 2022

Navalny Faces Additional Charges in Russia

By: Hannah Gavin

Journal of Global Rights and Organizations, Associate Articles Editor

MOSCOW, Russia — Putin’s strongest opponent, Aleksei A. Navalny faced new charges in court this Tuesday. Additional charges included embezzlement and contempt of court. These charges have the potential to extend his imprisonment by 15 years. Navalny faced these charges from a Penal Colony outside of Moscow where he is currently serving what should be the last year of his sentence.

Nalvany at his hearing on Tuesday. Photo courtesy of The Guardian.

In February of 2021, a Moscow appeals court rejected Navalny’s appeal of an original 2014 sentence for embezzlement. Navalny was originally sentenced to two years and eight months. On appeal, the judge reduced Navalny’s sentence by just 45 days. Navalny was poisoned in August of 2020 by Putin and nearly died while at a hospital in Germany. When recovered, Navalny chose to return to Russia, knowing he would be imprisoned.

The new charges come amid tense escalations in the potential military action soon to occur by Russia in the Ukraine. Russia has been deploying troops as well as missiles and other tactical equipment to the Ukrainian border. Although this has not yet escalated into violence, the World has been waiting with bated breath to see what the Kremlin chooses to do. Aleski Navalny spoke at the end of January urging western nations to take a harsher stance against Russian military action in Ukraine. In response to the United States’ meetings following Putin’s demands, Navalny stated “instead of ignoring this nonsense, the U.S. accepts Putin’s agenda and runs to organize some kind of meetings. Just like a frightened schoolboy who’s been bullied by an upperclassman.”

Navalny’s imprisonment came as no surprise to him or the international community. As for the additional charges, Navalny claims Putin planned this to coincide with his potential invasion of the Ukraine. Hope does not remain high for Navalny in his pursuit of justice against these additional charges. Navalny has claimed that the hearing was purposely held in a remote area. Additionally, his lawyers were blocked from bringing their laptops to court which contained necessary legal documents.

Although whether or not Navalny will face another decade or more in Russian prisons is unknown, the outlook for his case seems grim given Putin’s continuous attempts to suppress the opposition. Navalny will have his next hearing in this case on Monday.

For further information, please see:

NYT – Navalny Appears in Penal Camp Court to Face More Charges – 15 Feb. 2022

Time – Alexei Navalny Urges Biden to Stand Up to Putin – 19 Jan. 2022

Georgian State Failed to Properly Protect LGBT Demonstrators

By: George Rose

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On May 17, 2013, members of the LGBT community in Georgia planned and obtained permits to hold a vigil on the steps of parliament on International Day Against Homophobia. Many former Soviet countries still have laws outlawing homosexuality, with Georgia legalizing same sex marriage in 2015. While the LGBT community was planning their vigil, members of the Orthodox Church began planning a counter demonstration, citing this as a spread of “homosexual propaganda”.

The demonstration when violence broke out.
Photo curtesy of the New York Times.

While a peaceful counterdemonstration may not have been a problem, peace was not the outcome at the demonstration. Once the members of the Orthodox Church’s counterdemonstration arrived, they quickly overrode the police barriers erected around the parliament building. The Orthodox protesters became violent, videos show priests brandishing various weapons, going as far as using stools from bars and shops, shouting “kill them”. One LGBT demonstrator remarked that she had been assaulted by members of the Orthodox Church, she recalled seeing blood on the ground and was unsure if it was hers or not. After the violence broke out, the police loaded the LGBT demonstrators onto a minibus, however, the members from the Orthodox church smashed through the windows to attack those on board. In the aftermath of the attack, eight members of the LGBT demonstration were hospitalized, as well as three police officers. Following the attack on the LGBT demonstrators, Georgia’s Prime Minister, Bidzina Ivanishvili vowed that those who promoted the violence would be punished. However, the LGBT rights groups are still waiting for proof that the government has held those who promoted violence, accountable.

In a case brought against Georgia in the European Court of Human Rights, the court ruled that Georgia had been complacent by failing to properly protect the LGBT groups. The court reasoned that the use of police officers who were unarmed, thus protecting the demonstrators with a thin line of police officers, was not adequate protection. Further, the court found that in video footage, several officers allowed the violent members of the Orthodox Church within reaching distance of the LGBT demonstrators.

The court ordered Georgia to pay €193,500 to the applicants, with €10,000 reserved to an applicant who had suffered a concussion, and €6,000 for an applicant who had been humiliated by police officers.

For further information, please see:

The European Court of Human Rights – Press Release: Unprecedented Violence against LGBT Demonstrators

The New Yorker – What Was Behind Georgia’s Anti-Gay Rally? – 23 May 2013

The New York Times – Crowd Led by Priests Attacks Gay Rights Marchers in Georgia – 17 May 2013

NPR – Anti-Gay Riot in Tblisi Tests Balance Between Church, State – 30 Jul. 2013

ECHR Awards Damages Based on Religious Discrimination Claim against Georgia

By: Tina Perez

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — The European Court of Human Rights (ECHR) found that Georgia discriminated against, mistreated, and used excessive force against four Muslim men who were arrested for protesting a decision of Adigeni Municipality (the local government) to renovate a former mosque in the Village of Mokhe into a library. In Mikeladze v. Georgia, police alleged that the four men were resisting arrest at a protest on October 22, 2014 and sustained injuries while resisting. The four men complained that police verbally and physically assaulted them during and following their arrests. The men claimed, with several witnesses also reporting, that the authorities acted with discrimination because the officials used degrading racial slurs. ECHR awarded damages of 3,900 euros to the man who was the most severely injured and 1,800 euros to each remaining man.

Muslims gather in prayer outside the Disputed Building, Mokhe. Photo courtesy of Dato Parulava and Liberali.

The ECHR’s findings in this matter include that the injuries reported were not consistent with resisting arrest because one of the protestors was injured but no police were injured. Additionally, the report of the man’s injuries was not an adequate investigation because it did not investigate the origin of his injuries.

ECHR also found that the four men did not need to pursue all available remedies within Georgia if those remedies were ineffective. The men made official complaints related to physical and verbal abuse they received but Georgia conducted no official investigation. Georgia instead claimed that the criminal investigation against the men was sufficient to uncover and address their mistreatment. This matter was brought to ECHR and ECHR found that the state criminal investigation was not sufficient because it was not independently conducted. ECHR further noted that the criminal investigation of the men failed to make any inquiry into the racial slurs used against them. Additionally, in the seven years since the incident the internal investigation had made no conclusive findings.

This matter grabbed the attention of human rights organizations because Muslims are a religious minority within Georgia.  Although the majority of the population of the Village of Mokhe is Muslim, the local officials are not and discrimination against Muslims in the region goes back decades.  The disputed building was constructed as a mosque between 1927-34 but in the 1940s, Joseph Stalin expelled Muslims from the region. From the 1940’s until 2007 when Adigeni Municipality took ownership of the building, it was used first as a warehouse and later as a village club.  However, the Orthodox Church of Georgia also asserted ownership over the building claiming that a church stood on the location during the sixteenth century. Following the protest, the Muslim community of Mokhe continued to pray inside the ruins of the building until October 2016 when the building was blocked off with yellow police tape. An official commission was created to determine the origins of the ruin and in May 2017, the commission determined that the building “couldn’t be attributed to either” religion. The ruins have been declared a cultural heritage site named “Disputed Building.”

For further information, please see:  

Agenda.ge – European Court finds Georgia guilty of discrimination against four Georgian Muslims – 17 Nov. 2021

European Court of Human Rights – Forthcoming Judgments and Decisions – 10 Nov. 2021

European Court of Human Rights- Judgment, Case of Mikeladze and Others v. Georgia – 16 Nov. 2021

OC Media – Mokhe’s ‘Disputed Building’ to be Sealed off for Conservation – 14 Sept. 2017

Tolerance and Diversity Institute – Analysis of Recent Occurrences in Mokhe Village – 3 Nov. 2014