By: Veronica Devries

Journal of Global Rights and Organizations, Associate Articles Editor

BUCHAREST, Romania – The European Court of Human Rights (ECHR) has held in the case of X and Y v. Romania that the applicants had experienced a violation of Article 8 of the European Convention on Human Rights. Article 8 covers the right to respect for one’s private and family life.

The case concerned X and Y, two Romanian nationals registered female at birth, that applied for their civil-status records to be changed from female to male. They were born in 1976 and 1982, respectively, and live in the United Kingdom and Bucharest. X brought an action in 2013 against Bucharest’s first district’s local council. X presented several medical certificates to confirm that he suffered from a gender identity disorder. Despite this, the district refused to change his gender, stating that the change was “premature” as X had not undergone gender reassignment surgery. X moved to the United Kingdom in 2014 and obtained male forenames thereafter the courts in Romania had refused to change his gender.

Y brought an action against the local council for the third district in Bucharest. Y requested authorization to undergo gender reassignment surgery, along with various administrative changes, including a civil-status change of their gender like X had requested. In May 2013, the court stated that the applicant would not be able to apply for a change in forename until the gender reassignment surgery had been performed.

In their complaints, the applicants stated that the Romanian state had not established a clear process for the legal recognition of their gender identities, as the state was effectively making gender reassignment surgery a prerequisite for a civil-status change.

On January 19, 2021, the ECHR ruled that the state’s refusal to provide the requested administrative changes without the applicants having undergone surgery was an “unjustified interference” of the applicants’ right to respect for private and family life. This right is found in Article 8 of the European Convention on Human Rights.

In its decision, the ECHR held that the state had unreasonably required gender reassignment surgery in order for the administrative change to occur. In a statement, the ECHR stated “…the national courts had presented the applicants, who did not wish to undergo gender reassignment surgery, with an impossible dilemma; either they had to undergo the surgery against their better judgement…or they had to forego recognition of their gender identity…”

The ECHR required Romania to pay 8,653 euros to X in damages, and 7,500 euros to Y in damages, in addition to paying costs to each applicant.  

For further information, please see:

Balkan Insight – European Court Rules Romania Violated Trans Rights – 19 Jan. 2021

European Convention on Human Rights – 1 June 2010

European Court of Human Rights – Press Release – 19 Jan. 2021

Radio Free Europe News – European Human Rights Court Fines Romania For Transgender Rights Violations – 19 Jan. 2021

TGEU – Third Party Intervention X v Romania and Y v Romania – 19 July 2018

By: Elizabeth Maugeri

Impunity Watch Staff Writer

MOSCOW, Russia – In January, Russian opposition leader Alexei Navalny was arrested at Sheremetyevo International Airport after returning from Germany. In August of last year, a few weeks before the Russian regional elections, Navalny fell seriously ill. He was flown from Russia to Berlin to receive treatment for what turned out to be an attempt on his life. Tests conducted on Navalny’s personal belongings found a presence of Novichok, a known Russian nerve agent.

While recovering in Germany, Navalny released a statement that announced his plan to return to Russia. The moment he stepped off the plane in Moscow, he was detained and subsequently arrested by police. He was also denied access to his lawyers.

Navalny was detained for 30 days pending trial, in which he was expected to be sentenced for violating the terms of his parole. A parole that stemmed from previous fraud and embezzlement charges that the European Court of Human Rights (ECHR) held were “arbitrary and manifestly unreasonable.” Despite the ECHR’s ruling, the Russian government sustained the charges and forced Navalny’s compliance for years. Not only do his convictions bar him from running for public office, but he must also report in person to parole services in Moscow on the Russian government’s terms.

In the case against Navalny, Russian authorities claim that he failed to report as required during the months of August 2020 through January 2021. They also assert that in some instances he failed to report on the correct day of the week.

Navalny received a 3.5-year suspended sentence for these charges but was granted time served for the time he previously spent on house arrest. He was left with 2.8-years in prison. However, Russian authorities continue to pile on other charges. Navalny now faces new criminal charges of fraud and another for allegedly disparaging a WWII veteran.

The international community has demanded the release of Navalny and considers the arrest to be politically motivated. The European Parliament presented a joint motion for a resolution regarding the arrest. The motion called out Russia for breaching its Constitution, international law, international human rights standards, and multiple international conventions. It further calls for the Council to utilize the ECHR Article 46(4) power to bring a case to the ECHR against Russia for Russia’s failure to abide by the final judgments of the Court as it has signed on to do.

Navalny has historically posed a serious challenge for Vladimir Putin and is widely considered to be the man Putin fears most. While it is expected that he will appeal his sentence, the Russian government has labeled this a domestic matter and doesn’t plan on abiding by any ruling that contradicts the decision of the country’s courts.

For further information, please see:

European Parliament – Joint Motion for a Resolution pursuant to Rule 132(2) and (4) of the Rules of Procedure – 20 Jan. 2021

Politico – Collision course Moscow: The Return of Alexei Navalny – 15 Jan. 2021

Politico – Election official: Navalny can’t run for Russian president – 15 June 2017

Reuters – Russian opposition leader’s fraud conviction arbitrary, Europe’s top rights court says – 17 Oct. 2017

The New York Times – Russia Expels European Diplomats Over Navalny Protests, Defying the West – 5 Feb. 2021

The New York Times – Russian Activist Navalny Sentenced to More Than 2 Years in Prison – 2 Feb. 2021

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