European Rights Watch

ECHR to Review Domestic and International Standards of News and Plurality

By: Jamie McLennan

Impunity Watch Staff Writer

STRASBOURG, France– On October 14, 2020, the Grand Chamber of European Court of Human Rights heard the case NIT S.R.L v. Republic of Moldova after the initial chamber relinquished jurisdiction to the Grand Chamber. According to Article 30 of the ECHR, the chamber in which the case was initially selected, may relinquish their jurisdiction if the issue before the court raised a serious question that requires interpretation of the protocol or prior resolutions by the ECHR.

The European Court of Human Rights in Strasbourg, France. Photo Courtesy of the ECHR.

The applicant party, Noile idei televizate SRL, was a private television station located in Moldova since 1996. Beginning in 2004, the station received its license to broadcast nationally and the station allegedly has a close relationship with the Communist Party of Moldova, who held power until 2009. Between 2009-2011, the television station repeatedly broadcasted news that favored the Communist Party and as a result, received multiple sanctions for breaching legislation in Moldova that imposed duties of fairness and neutrality in the news. In particular, the television station was accused of politically biased news, favoring oppositional political parties and promoting fake and biased media. After the television station was sanctioned eleven times by the audio-visual national authority, the television station’s license to operate was withdrawn and the station could no longer publicly broadcast in Moldova since 2012.

In 2013, the television station challenged the sanctions through the court system, but the action was dismissed as unsubstantiated. The Court of Appeal affirmed the decision, stating that the harsh sanctions were likely founded, given that the station refused to comply after many warnings. The television station then sought remedy through the European Court of Human Rights and the Moldovan Government was notified of the application in April of 2018.

Here, the television station believed that they had formal complaints against the Moldovan Government under Article 6 (right to a fair trial), in which the revocation of the licensure was unfairly given due to the television station’s critical attitudes of the Moldovan Government. And, the television station also complained under Article 10 (freedom of expression), in which they argued that domestic law should not be able to impose an obligation of neutrality and fairness on privately owned stations that broadcast publicly. They further alleged that this action would constitute a breach against ownership of their broadcasting network, as stated under Article 1 of Protocol No. 1 (protection of property). They asked the court to review the issues and determine the power balance between a state’s protection of plurality and private enterprises that wish to freely express political messages. The ECHR would have to delineate between domestic and international standards for news and media, determining which area of governance should hold more power. Although the court held an initial hearing on October 14th, the case is still pending judgment before the Grand Chamber.

For further information, please see:

European Court of Human Rights- Forthcoming Hearings in October 2020- 10. Jan. 2020

European Court of Human Rights- Information Note on the Court’s Case Law- Mar. 2020

European Court of Human Rights- Press Release- 3. Sept. 2020

Authorities Owe More: Expansion of the Duty to Protect the Right to Life

By: Anthony B. Emmi

Impunity Watch Staff Writer

STRASBOURG, France – On September 17th, 2020, the European Court of Human Rights (ECHR) issued judgment on the case of Kotilainen v. Finland. The ECHR held that Finnish authorities violated Article 2 (right to life) of the European Convention on Human Rights (the Convention) when they failed to seize a school shooter’s firearm, which he later used to kill nine students and one teacher on September 23, 2008.

Police Vehicles at the Vocational School Where the Shooting Occurred, 23 Sept. 2008, Kauhajoki, Finland. Photo Courtesy of The New York Times.

The Court’s decision expands on previous case law regarding the obligation of authorities to protect identified persons’ rights to life by creating a general duty of protection. Nineteen relatives of the victims brought the case before the ECHR with the goal of holding the state accountable for allegedly failing to perform their due diligence to protect the lives of the deceased.

Section 92 of Finland’s Firearms Act allows police to seize at will the firearms of people suspected of misusing them. In 2010, domestic courts dismissed a claim of negligent dereliction of duty against the Detective Chief Inspector who interviewed the shooter, Matti Saari, the day before the shooting. Saari had posted troubling material online, including a comment attached to a video of the Columbine High School shooting, which stated, “entertainment as its best.”

The ECHR approached the case from two standpoints: one of the state’s duty to protect lives; and, two the state’s duty of diligence in the protection of public safety. On the duty to protect lives, the Court found that the evidence available to the police at the time did not demonstrate that Saari posed any immediate or specific risk. Thus, the police did not incur a duty to protect the specific lives of those who were killed.

However, the ECHR did find that the state failed to perform its duty of diligence in the protection of public safety. The 6-1 decision turned on whether it would have been reasonable for the authorities to seize the firearm given the circumstances and the inherent risk that a firearm poses to life. The Court stated that because seizure of the firearm would not have interfered with other articles under the Convention, and doubt surrounded Saari’s fitness to own a firearm, the police reasonably could have seized the firearm as a precaution. In failing to do so, the state did not exact its duty of diligence to protect public safety and violated Article 2 of the Convention. On this matter, the Court awarded approximately EUR 30,000 to the household of each applicant, as well as court expenses.

Judge Eicke was the dissenting member of the court. He reasoned the majority had applied a more general standard of due diligence, which extended beyond the duty of protection to specific individuals. He further argued that this decision created the possibility of “regulatory overreach,” which could make it difficult for authorities to comply while comporting with due process. Judge Eicke noted that compliance with this decision may require authorities to continuously supervise those persons licensed to own a firearm in the state.

For further information, please see:

European Court of Human Rights – Case Information Sheet: Finnish authorities failed to take the precautionary measure of seizing a student’s weapon before a school shooting – 17 Sept. 2020

European Court of Human Rights – Case of Kotilainen and Others v. Finland – 17 Sept. 2020

UUTISET – ECHR: Finland violated “right to life” of 2008 school shooting victims – 17 Sept. 2020

UUTISET – Charges Dismissed in School Shooting Case – 29 Jan. 2010

ECHR Rules Russia Can Compensate Prisoners for Inadequate Detention Conditions

By: Genna Amick

Journal of Global Rights and Organizations, Associate Articles Editor

MOSCOW, Russia – On April 9, 2020, the European Court of Human Rights (“ECHR”) ruled on the admissibility of six applicants who applied for compensatory damages under Russia’s 2019 Compensation Act.

Entering into force in January 2020, the Compensation Act provides detainees who are held in pre-trial detention facilities with financial compensation if they suffered from inadequate detention conditions that violated national or international standards. Russia adopted the Compensation Act in response to rulings from two earlier cases from the ECHR, which required that Russia take action regarding the inhumane, degrading conditions of their pre-trial detention centers.

One of the main issues faced by pre-trial detention centers in Russia is overcrowding. This has been a problem for years, likely due to Russian courts approving prosecutorial requests for pre-trial custody in 90.7% of cases. The complaints of the six applicants in this case all involve alleged overcrowding.

The applicants, who filed on various dates in 2017 and 2018, relied on both Article 3 and Article 13 of the European Convention. Article 3 prohibits inhuman or degrading treatment. Applicants used Article 13, which ensures the right to an effective remedy, to complain that Russia lacked an effective domestic remedy for their inhumane pre-trial detention conditions. Although the applicants filed their complaints two to three years before the Compensation Act went into effect, the Court did not review their applications until after the Act was in effect. Therefore, all six applicants’ claims were deemed inadmissible as the Court held that the Compensation Act is an effective domestic remedy to their claims.

The ECHR found the Compensation Act to be an effective method of compensatory redress for applicants who had already been released from a pre-trial detention center but had suffered through improper detention conditions while there. The Court based this ruling on a number of factors, such as that the remedy has the requisite procedural guarantees, it is accessible to the people who may need it, and it offers applicants a reasonable likelihood of success. The Court also based their decision on an assumption that claims would be processed in a reasonable time period and that compensation would be paid promptly to applicants who qualified for redress.

The Court stated that released detainees may qualify for compensation under the Compensation Act if, during their detention, they did not receive the standard amount of space per detainee that is required under Article 3 of the European Convention, which is 3 square meters per detainee. All six applicants’ complaints alleged they received less than 3 square meters; therefore, they are all eligible to apply for redress under the Compensation Act. Since the applicants at issue filed a few years before the Act went into effect, they have 180 days from the publication of the ECHR’s ruling to avail themselves of the remedy provided by the Compensation Act.

Despite the ECHR finding the Compensation Act to be an effective remedy for released detainees, the ECHR reserved their judgment on whether the Act can be effective as a preventative remedy for applicants who are still being detained.

For further information, please see:

HUDOC – Shmelev and Others v. Russia – remedies for complaints about poor conditions of detention – 9 Apr. 2020

Human Rights Watch – Russia’s Pretrial Prisons Vulnerable as COVID-19 Spreads – 24 Mar. 2020

Russia’s Criminal Investigation Procedures Don’t Comply with Convention on Human Rights

By: Jacob Tyson

Impunity Watch Staff Writer

STRASBOURG, France – On February 4, 2020, the European Court of Human Rights (“ECHR”) found the Russian government responsible for 29 cases of torture and inhuman or degrading treatment by police officers, violations of Article 3 and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and awarded 835,000 euros in pecuniary damages to the victims. The treatment the victims received included electric shock, strangulation, needles being placed under fingernails, rape, and threats of torture toward family members.

Man is arrested by Russian law enforcement. Photo Courtesy of The Moscow Times/AP.

The case revolved around whether the complaints were credible and admissible even though they relied on faulty investigations. The Court opined that medical examinations, especially in cases of ill-treatment toward prisoners and detainees, are an essential safeguard of human life and the justice process. However, without this information, human rights investigations can be inadmissible in court. Here, multiple applicants were not examined until weeks after their complaints of torture. Upon examination, the forensic experts were not provided with enough information which made it impracticable for the experts to create an accurate picture of what happened to these prisoners. The experts, instead, relied on the pre-investigation inquiry by the Russian authorities.

According to the Court, this was an inadequate effort by the Russian government. The Court held that the mere carrying out of a pre-investigation inquiry under the Code of Criminal Procedure of the Russian Federation is insufficient to comply with Article 3 of the Convention. “It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out,” the Court wrote.

This could have a significant impact on criminal procedure in Russia, as well as other Council of Europe member states, to ensure more thorough and accurate investigations into police brutality and inhumane prison practices. However, since 2015, Russian President, Vladimir Putin, signed a bill allowing the Constitutional Court to circumvent rulings of the ECHR and any other rulings by international human rights bodies in an effort to protect Russian legal sovereignty. It is unlikely this ruling will affect the way Russia conducts its investigations in the future or in its 15,000 currently pending ECHR applications.

For further information, please see:

European Court of Human Rights – Applications nos. 47821/09 against Russia – 4 Feb. 2020

МБХ – ЕСПЧ Присудил Россиянам 1 Млн Евро за Незаконные Обыски и Пытки в Полиции – 4 Feb. 2020

The Moscow Times – Russia Ordered to Pay $1M to Police Brutality Victims – 5 Feb. 2020

ECHR Rules Spain Did Not Breach the Convention in Returning Migrants to Morocco

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On February 13, 2020, the European Court of Human Rights (“ECHR”) ruled that Spain did not breach the European Convention on Human Rights (“the Convention”) in returning migrants to Morocco for attempting to cross the fences onto European Union territory in the case of N.D. and N.T. v. Spain.

Police office scales fence climbed by migrants at Melilla border. Photo Courtesy of AFP.

On August 13, 2014, hundreds of migrants attempted to storm their way onto European Union territory by scaling fences to reach the city of Melilla, a Spanish enclave surrounded by Moroccan territory. Moroccan police were able to prevent about 500 migrants from scaling the outer fence, but around a hundred migrants succeeded, with 75 migrants reaching the top of the fence and a few landing on the other side on Spanish soil. Those who reached the soil were met by members of the Guardia Civil, the Spanish law enforcement, while others remained at the top of the fence.

Two individuals, N.D., a national of Mali, and N.T., a national of Côte d’Ivoire (“the applicants”), were of the few that remained at the top of the fence. After a few hours, the two climbed down and were apprehended by the Guardia Civil who “reportedly handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities.”

The applicants lodged applications with the ECHR on February 12, 2015 alleging that there had been a violation of Protocol No. 4 Article 4 which prohibits collective expulsion of aliens and Article 13 which secures the right to an effective remedy. Through both Articles, the applicants claim that they were forced back to Morocco with “no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.”

On October 2, 2017, in its Chamber judgment, the Court held that there was a violation of Article 4 of Protocol No. 4 and a violation of Article 13 in conjunction with Article 4 of Protocol No. 4. On December 14, 2017, the Spanish Government requested the case be referred to the Grand Chamber under Article 43 of the Convention. On January 29, 2018 the Grand Chamber accepted and a hearing was held on September 26, 2018.

The Court reasoned that the applicants had attempted to enter Spanish territory in an unauthorized manner by taking advantage of a large crowd. In accordance with the Convention, States are required to “make available genuine and effective access to means of legal entry [and] should allow all persons who faced persecution to submit an application for protection.” As a result of not using the proper channels, States can refuse entry to their territories to aliens and asylum-seekers who fail, without convincing reason, to follow such requirements.

Regarding the applicants Article 4 of Protocol No. 4 claim, the Court noted that Spanish law had several possible means available to those seeking admission to their territory, such as applications for visas or international protection, therefore the State had provided genuine and effective access to its territory. Applicants’ did not allege they tried to enter Spanish territory by any legal means. The court concluded that the applicants had “placed themselves in jeopardy by participating in the storming of the border fences [and their expulsion was a] consequence of their own conduct.”

Regarding the applicants’ Article 13 claim taken in conjunction with Article 4 of Protocol No. 4, the Court explains that “the lack of an [individualized] procedure for [the applicants’] procedure for their removal had been the consequence of the applicants’ own conduct in placing themselves in an unlawful situation by crossing the Melilla border protection structures… at an [unauthorized] location.” Further, the Court concluded that there had not been a violation of Article 4 of Protocol No. 4 or Article 13 in conjunction with Article 4 of Protocol No. 4.

European Court of Human Rights – Forthcoming Grand Chamber judgment in a case concerning the immediate return of two migrants who tried to enter Spain by climbing the fences of the Melilla enclave – 6 Feb. 2020

European Court of Human Rights – Spain did not breach the Convention in returning migrants to Morocco who had attempted to cross the fences of the Melilla enclave – 12 Feb. 2020

European Court of Human Rights – Case of N.D. and N.T. v. Spain – 12 Feb. 2020

The Local Spain – Spain cleared by European Court of Human Rights over Removal of migrants at border fence – 13 Feb. 2020