European Rights Watch

Russian Federation Violated Rights of Asylum-Seekers Trapped in Moscow Airport

By: Benjamin Kaufman

Journal of Global Rights and Organizations, Associate Articles Editor

MOSCOW, Russian Federation – On November 21, 2019, the Grand Chamber of the European Court of Human Rights (“ECHR”) affirmed a decision by the Chamber from 2017 declaring that the Russian Federation’s confinement of four individuals who sought asylum was a violation of their rights under Article 5 § 1 of the European Convention on Human Rights and Article 3 of the European Convention’s prohibition of torture and inhuman or degrading treatment.

The four applicants in this case were an Iraqi national, an individual holding a passport issued by the Palestinian Authority, a Somalian national, and a Syrian national. The four travelled independently and under different circumstances to Sheremetyevo airport in Moscow seeking asylum to the Russian Federation. Upon arrival, each of the four were stopped from leaving the “transit zone” within the airport while their asylum applications were submitted and processed. The transit zone of the airport was a constantly lit area in which they were required to sleep on mattresses placed within the constantly lit boarding area of the airport, without access to running water for a shower, and with only food rations provided by the United Nations High Commissioner for Refugees (“UNHCR”).

The individuals were unable to appeal or expedite the processing of their evaluation for asylum and were prevented from exiting the airport. In sum, three of individuals spent between five and eight months between 2015 and 2016 in the airport, while the fourth was in the zone for one year and eleven months between April 9, 2015 and March 9, 2017. By the time of the EHCR’s decision, the Iraqi and Syrian applicants were resettled by the UNHCR in Denmark and Sweden respectively while the other applicants took flights to Egypt and Mogadishu.

Three of the individuals filed their applications to the ECHR on December 12, 2015 while the fourth was lodged on January 14, 2016. The applications argued that their confinement had violated their Article 5 right to liberty and security under the European Convention on Human Rights and additionally that the conditions of the confinement were so abhorrent as to constitute inhuman and degrading treatment per Article 3 of the European Convention.

The Grand Chamber affirmed the earlier decision, finding that Article 5 applied to and was violated in the case of each of the four applicants. Further, the court found Russia’s confinement of the applicants to indeed be a violation of Article 3. The ECHR took particular care to dismiss the government’s contention that none of the applicants were on Russian territory while kept in the transit zone and that Russian laws therefore did not apply to them. The court was quick to assert that in fact the applicants were within Russian territory during the periods of their confinement and that their confinement was thus subject to the Russian statutory procedures for seeking asylum.

With respect to these claims, the EHCR noted that its decision in this case would be relevant to other states challenged by the influx of refugees and migrants. However, the Grand Chamber of the EHCR specifically stated that the burdens on states due to asylum-seekers, migrants, and refugees could not be used to justify degrading and inhumane treatment of the same in violation of the human rights enshrined within the European Convention.

For further information, please see:

European Court of Human Rights – Asylum-seekers’ confinement to an airport transit zone for a long time in poor conditions violated their human rights – 21 Nov. 2019

European Court of Human Rights – Asylum seekers’ detention in Moscow airport transit zone was unlawful, inhuman and degrading – 21 Mar. 2017

ECHR Rules Supermarket Cameras Don’t Violate Right to Privacy

By: Genna Amick

Journal of Global Rights and Organizations, Associate Articles Editor 

MADRID, Spain — On October 17, 2019, the Grand Chamber of the European Court of Human Rights found that the right to privacy of supermarket employees was not violated by the supermarket using visible and hidden cameras to record areas of the store where it suspected theft by employees.

The manager of a Spanish supermarket noticed that stock valued at upwards of €20,000 was missing. He decided to install cameras without informing any of his employees. The cameras focused on exits, entrances, and checkout counters. Based on the surveillance footage, the manager discovered that a number of his employees were taking goods without paying for them and helping customers to steal. He fired 14 of his employees, five of which are the applicants in this case.

The applicants argued that they were dismissed unfairly and that their right to privacy was violated by the installation of the cameras without their knowledge. The Spanish Employment Tribunal found that the dismissal was valid and that the applicant’s right to privacy had not been violated. After the Spanish High Court affirmed the Employment Tribunal’s ruling, the applicants submitted a complaint to the European Court of Human Rights.

In January 2018, a chamber of the European Court of Human Rights found that the employee’s right to privacy under Article 8 of the European Convention had been violated because they had not been informed of the installation of the cameras. However, the chamber did not find that the applicant’s right to a fair trial under Article 6 of the European Convention had been violated.

The case was then accepted and reviewed by the Grand Chamber which found that applicant’s Article 8 right to privacy was not violated nor was their Article 6 right to a fair trial. Delving into the right to privacy, the Grand Chamber held that employers are not required to notify employees of surveillance equipment if it was installed to protect a “significant” interest.

Applicant’s also argued that the State had a positive obligation to protect their rights against the actions of a private company. The Grand Chamber found that since there were a number of domestic laws in place intended to safeguard the applicant’s right to privacy which they could have sought legal remedies under, the State had acted within its margin of appreciation. The Grand Chamber concluded that the applicant’s Article 8 right to privacy had not been violated.

The Grand Chamber also concluded that applicant’s Article 6 right to a fair trial was not violated. In this case, the applicants attempted to argue that using their former employer’s video recordings of them stealing was inadmissible. The Grand Chamber held that using the videos as evidence did not undermine the fairness of the proceeding for two reasons. First, applicants had the ability to challenge the quality and accuracy of the videos. Second, the recordings were not the only evidence that was used by the Spanish domestic courts.

For further information, please see:

International Justice Resource Center – European Court Holds Secret Surveillance Did Not Violate Employees’ Privacy – 24 Oct. 2019

Warner Goodman – Employment Law Case Update: Lopez Ribalda and others v Spain – 24 May 2018

Man In Turkmenistan Is Missing After Revealing Sexual Orientation

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

ASHGABAT, Turkmenistan — According to Freedom House’s index of basic freedoms, Turkmenistan is rated below North Korea and only above Syria. Under Turkmen law, the government has the authority to regulate behavior in an attempt to “construct the model Turkmen citizen.” Turkmen authorities exercise its control by brutally punishing any form of religious or political expression that does not align with the Turkmen government. Additionally, the Turkmen government limits the nature of print and electronic media available to its citizens.

The Turkmen government has a long history of enforced disappearances, where individuals’ whereabouts or fates serving long sentences in Turkmenistan are unknown. For more than ten years, the Turkmen government has prohibited loved ones, lawyers, and the outside world access to the imprisoned. Prove They Are Alive, a campaign committed to ending enforced disappearances in Turkmenistan, has reported at least 121 cases of enforced disappearances. Of these 121 cases, many are suspected to be detained in the Ovadanepe prison, which has a reputation for extreme conditions.

On October 24, 2019, it was reported that Kasymberdy Garayev was feared to be missing after allegedly revealing his sexual orientation, under a pseudonym, on Radio Free Europe/Radio Liberty. In Turkmenistan, homosexual conduct is a criminal act that can result in up to a two-year prison sentence. Today, approximately sixty-eight countries have laws that criminalize homosexual conduct between consenting adults. According to Human Rights Watch, sentencing in these sixty-eight countries “range from fines to life imprisonment and even the death penalty.” Rachel Denber, the deputy Europe and Central Asia director at Human Rights Watch, expressed her extreme concern for Garayev stating that “given Turkmenistan’s appalling human rights record, including enforced disappearances, we have every reason to fear for his safety and well-being.”

Kasymberdy Garayev is a 24-year-old cardiologist, who was employed at an elite clinic in Turkmenistan. On October 21, 2019, Radio Free Europe/Radio Liberty released a narrative, where Garayev allegedly reflected on his life in Turkmenistan stating that “since childhood, I knew that I was gay and it was hard for me to accept.” In 2018, Garayev was allegedly detained by Turkmen authorities upon a scheduled meeting with an online male love interest, which turned out to be a police officer. Here, Garayev allegedly stated that on the way to the police station, officers beat him, used a stun gun, and demanded that he make a statement on camera confirming his sexual orientation.

On October 24, 2019, Turkmen authorities allegedly requested Garayev’s presence for a background check.  From October 24, 2019 to November 6, 2019, Garayev’s whereabouts were unknown. Radio Free Europe/Radio Liberty was also unable to locate Garayev’s family. According to Human Rights Watch, when an individual summoned by Turkmen authorities goes missing, “there is a real risk they could be the victim of an enforced disappearance.”

On October 31, 2019, Radio Free Europe/Radio Liberty released a video recording of Garayev2 speaking, where he disclosed his real name, expressed his fear of going missing, and begged for his family’s forgiveness.

During the time Garayev was feared to be missing, Gurbanguly Berdymukhamedov, the president of Turkmenistan, visited Rome. During Berdymukhamedov’s visit, several Italian LGBTQ+ activist groups urged Rome to speak out on Garayev’s disappearance. On November 6th, Italian Senator Monica Cirinna released a statement demanding the government press Berdymukhamedov on the details of Garayev’s disappearance. Later that day, Garayev returned home.

Since then, Garayev denies any communication with Free Europe/Radio Liberty. Garayev claims that the video farewell was recorded for a different purpose and sent mistakenly to Radio Free Europe/Radio Liberty. Additionally, after the release of Radio Free Europe/Radio Free Liberty’s narrative, Garayev is no longer employed by the prestigious clinic in Turkmenistan where he once worked. Since Garayev’s alleged return home, several LGBTQ+ activist groups have started campaigns seeking to protect Garayev.

For further information, please see:

Human Rights Watch – Turkmenistan: Gay Man Missing After Coming Out Online – 1 Nov. 2019

Radio Free Europe/Radio Free Liberty – ‘If I Disappear, Forgive Me’: Missing Gay Turkmen’s Plea – 31 Oct. 2019

Radio Free Europe/Radio Free Liberty – Gay man from Turkmenistan wants to make a statement to start a discussion – 21 Oct. 2019

Radio Free Europe/Radio Free Liberty – The Turkmen President Is Alive, But What About His Prisoners? –  20 Aug. 2019

Human Rights Watch – Turkmenistan Events of 2018

Human Rights Watch –#OUTLAWED “THE LOVE THAT DARE NOT SPEAK ITS NAME”

Human Rights Court Says Mandatory Religious Education in Greek Schools Violates the Convention

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

ATHENS, Greece — On October 31, 2019, the European Court of Human Rights (“ECHR”) held that mandatory religious education in Greek schools was a violation of Article 2 of Protocol No. 1 (Right to Education) of the Convention, interpreted in light of Article 9 (Freedom of Thought, Conscience, and Religion).

The applicants in this case were two sets of parents and their daughters, who live on small Greek islands. Under the Greek Constitution, religious education is compulsory for all students at primary and secondary level.

In July 2017, the applicants had requested the Supreme Administrative Court to invalidate the religious education curriculum for the 2017-18 school year, when their daughters were entering the third and fourth grades respectively. With the new school year fast approaching, the two families requested to have their case considered urgently but the court dismissed their requests.

In January 2018, arguing that the procedure for exemption from religious classes conflicted with the European Convention, the applicants lodged a complaint with the ECHR. They claimed that if they were to have their daughters exempted from religious education, they would have to state that they were not Orthodox Christians. In filing their complaint, the applicants relied on Article 9 and Article 2 of Protocol No. 1 of the Convention.

The Court found that submitting a formal declaration saying that their children were not Orthodox Christians would place an undue burden on parents. The Court reasoned that the existing system in Greece for exempting children from religious education classes could potentially reveal sensitive aspects of an applicants’ private lives. In addition, the likelihood of conflict wound probably dissuade them from seeking exemption, particularly if they lived in a small and religiously condensed society, where the risk of stigmatization was much higher than in larger cities. Lastly, no other classes were offered to exempted students, which would lead to lost hours of schooling just for their professed beliefs.

Therefore, the Court held that there had been a violation of Article 2 of Protocol No. 1, as interpreted alongside Article 9 of the Convention. The Court emphasized that the authorities did not have the right to interfere in the scope of individual conscience, to establish individuals’ religious belief or to compel them to divulge their beliefs.

Greece lags behind almost all of the member states, where such an exemption procedure, or the option of attending a class in an alternate subject are already offered. This decision by ECHR is a monumental victory for religious minorities in Greece as it acknowledges their religious beliefs, allows them to be heard and strengthens their ability to pursue a modified curriculum in schools.

For further information, please see:

European Court of Human Rights – Greek System for Exempting Schoolchildren from Religious Education Classes Breaches the European Convention – 31 Oct. 2019

Law & Religion UK – Mandatory Religious Instruction Again: Papageorgiou – 31 Oct. 2019

 

Citing Article 8, ECHR Grants Psychiatric Patient Right to Attend a Family Funeral

By: Michelle Leal

Journal of Global Rights and Organizations, Associate Articles Editor 

PĀDURENI-GRAJURI, Romania – On October 8, 2019, the European Court of Human Rights (“ECHR”) held that the Romanian Government unfairly restricted a citizen from attending her mother’s funeral, thus violating Article 8 of the European Convention on Human Rights.

Luminiţa Zamfira Solcan is a Romanian national currently living in a psychiatric facility in Pădureni-Grajduri. In 2005, Solcan committed a murder in France.

During the criminal investigation, medical experts diagnosed Solcan with paranoid schizophrenia. Further, the experts opined that Solcan’s acts were due to her paranoid delusions. The Mâcon County Court discontinued the criminal investigation against Solcan, opining that she committed the offense in a state of diminished responsibility. The court ordered Solcan’s placement in a psychiatric facility in France for an unspecified time.

In 2011, Solcan requested to be transferred to a facility in Romania to be closer to her mother. In 2012, Solcan was transferred to a psychiatric facility in Pădureni-Grajduri. About a year later, Solcan’s mother died.

The day after her mother’s death, Solcan lodged a request with the Iaşi District Court for leave to attend her mother’s funeral. However, a month later, the court refused to grant Solcan’s leave. The court determined that under Article 39 of the Mental Health Act, the safety of others justified Solcan’s continuous detention.

Solcan filed an appeal, arguing that the laws allowing the temporary interruption of a custodial sentence for family reasons should also apply to detentions in psychiatric facilities. The court dismissed Solcan’s appeal, determining that the laws regarding the temporary interruption of imprisonment on family grounds did not apply to Solcan’s circumstances.

Before the ECHR, Solcan alleged that the authorities violated Article 8, the Right to Respect for Private and Family Life, by not allowing her leave of her involuntary psychiatric hospitalization to attend her mother’s funeral. The Court noted that any interference with an individual’s right to respect for her private and family life constituted an Article 8 breach unless the interference was necessary or in accordance with the law.

The Court first determined that the refusal to grant Solcan leave to attend her mother’s funeral was an interference under Article 8. Secondly, the Court found that the interference was an Article 8 breach because it was not necessary. The Court referenced relevant case law, which concluded that the State can only refuse an individual the right to attend a parent’s funeral for compelling reasons and if there is no alternative. The Court stated that neither the first-instance court or the Iaşi County Court accurately assessed Solcan’s situation. Moreover, the Court noted that due to the seriousness of the situation, the domestic courts should have explored alternative ways for Solcan to attend the funeral. The Court stated that the domestic courts failed to consider alternatives like escorted or compassionate leave.  Considering the seriousness regarding Solcan’s request and the domestic courts’ failure to consider alternatives, the Court found that the denial of leave was not necessary.

Ultimately, the Court determined that there had been a violation of Article 8 of the Convention and awarded Solcan six thousand euros for non-pecuniary damages.

For further information, please see:

ECHR Case Law – Failure to Allow a Psychiatric Detainee to Attend her Mother’s Funeral Violates her Right to Family Life – 20 Oct. 2019

European Court of Human Rights – Case of Solcan v. Romania – 8 Oct. 2019

European Court of Human Rights- Guide on Article 8 of the European Convention on Human Rights – 31 Aug. 2019