By: Rebecca Buchanan

Impunity Watch Staff Writer

STRASBOURG, France – On October 21, 2020, the Grand Chamber of the European Court of Human Rights (“ECHR”) held a hearing on the case of Denis and Irvine v. Belgium, regarding the release of applicants held in compulsory confinement in Belgium for crimes no longer eligible for detainment under the Compulsory Confinement Act of May 5, 2014. The applicants alleged that their continued confinement constitutes a violation of Articles 5(1) and 5(4) of the European Convention on Human Rights: the right to liberty and security of person and the right to a quick decision on the lawfulness of detention. 

The complaint represents an aggregation of separate claims from applicants Jimmy Denis, a Belgian national, and Derek Irvine, a British national, brought to the court on August 21, 2017. Both applicants were placed in compulsory confinement under the Social Protection Act of April 9, 1930—Denis for theft 2007, and Irvine for attempted aggravated burglary in 2001.

The Social Protection Act allows that “trial courts may order the detention of an accused who has committed a serious crime and is suffering from one of the conditions set out in section 1,” including severe mental disturbance, defects, or disorders that make an individual incapable of controlling their actions. The applicants were both evaluated and confined pursuant to these qualifications, a point which they do not argue before the court.

The Compulsory Confinement Act of May 5, 2014, which entered into force in October 2016, restricted the court’s ability to order compulsory confinement only to individuals “who ha[ve] committed a crime or serious offense that has harmed or could have harmed the physical or mental integrity of another person,” and for “whom there is a danger that he or she will commit fresh offenses…on account of his or her mental disorder.” According to the Justice Committee of the House of Representatives, the act was intended to clarify the requisite conditions for compulsory confinement to ensure that minor offenses could no longer result in continuing detainment and to isolate properly those cases for which extended confinement is just.

In accordance with the new legislation, the applicants argue that their compulsory confinement is without legal basis, as the reasons for their incarceration do not meet the updated requirements. They applied to the Belgian courts for immediate trial and release but were denied. Upon their denial, the applicants lodged their complaint with the ECHR.

In the Chamber judgment issued by the ECHR on October 8, 2019, the Court determined that the continued compulsory confinement of the applicants did not qualify as a violation of Article 5(1) or 5(4), as it had not been “arbitrary or manifestly unreasonable” under Belgian law, and “continued to be based on judicial decisions taken under the former social protection legislation.”

Following the unanimous decision of the Chamber Court, the applicants successfully requested that their case be referred to the Grand Chamber. The hearing will aid in determining the retroactive applicability of the Compulsory Confinement Act and the legislative impacts of its amended scope.  

For further information, please see:

European Court of Human Rights – Denis and Irvine v. Belgium, Chamber Judgement – 8 Oct. 2019

European Court of Human Rights – Forthcoming Hearings in October 2020 – 1 Oct. 2020

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 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 14^th, 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

By: Anthony B. Emmi

Impunity Watch Staff Writer

STRASBOURG, France – On September 17^th, 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.

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