'Nuff said

(Taking context-optional note of thought-provoking quotes)

[T]he Grand Chamber's judgment exposes flaws in the current European asylum regime. ... [E]stablished to reduce 'asylum shopping' and ensure minimum standards of protection to asylum seekers across the European Union, [it] is based on a presumption of equality and cooperation among safe countries. For geopolitical reasons, [there is] an unbalanced burden-sharing among the various European countries.
The judgment acknowledges those challenges, yet underlines that neither uneven burden-distribution (Greece) nor a state's minimalist reaading of the Dublin Regulation (Belgium) absolves Member States of their responsibilities vis-à-vis the Convention or other applicable international treaties ....

-- Tom Syring, co-chair of the International Refugee Law Interest Group of the American Society of International Law and member of Norway's Immigration Appeals Board, in an ASIL Insight written in his personal capacity. Syring analyzed the judgment that the European Court of Human Rights (right) issued this January in M.S.S. v. Belgium & Greece. An asylum case, M.S.S. unfolded within the framework of the Common European Asylum System -- launched in 1999 and better known as CEAS -- as well as the 2003 Dublin Regulation that implements CEAS. A 17-member Grand Chamber of the Court ruled that both respondent countries had violated rights of the asylee-applicant under Article 3 (banning inhuman and degrading treatment) and Article 13 (guaranteeing an effective remedy) of the 1950 European Convention on Human Rights. Belgium was faulted for having returned the applicant to his 1st state of entry -- Greece -- without considering that there he might endure the poor living conditions and risk of refoulement to his native Afghanistan. Greece, meanwhile, was held to account for the possibility of such risks and for the delays in providing the remedy of asylum. By Syring's telling, the judgment appears to place a significant, affirmative responsibility on member states -- and thus is well worth a read for international lawyers in many fields beyond that of asylum law.

Older people with LGBT Identities

(My thanks to IntLawGrrls for the opportunity to contribute this guest post, and to Professor Nancy Knauer for suggesting me)

Older people with lesbian, gay, bisexual and transgender identities face unique challenges as they age. They are at greater risk of needing formal care provision in older age, due to fewer having children, and more having fragmented relationships with birth family associated with their sexual and gender identification. Yet at the same time, there are shared concerns in the USA, UK, Canada and Australia, that health and social care providers are failing to address the needs of older people with LGBT identities and that this, in turn, is causing people to avoid services even when they may desperately needs them. Professor Nancy J. Knauer of Temple Law School (pictured right) , has written an award winning paper about the problems of LGBT older people in the USA [LGBT Elder Law: Toward Equity in Aging, 32 Harvard Journal of Law & Gender 1 (2009)] and has a book on related themes about to be published [Gay and Lesbian Elders: History, Law, and Identity Politics in the U.S. (Ashgate Publishing, Ltd.)]. There has been only minimal research in the UK as yet, which I am seeking to redress, in part, with my own PhD research (described in my bio above).
Older people with lesbian, gay or bisexual (LGB) identities face two different kinds of problems related to being ‘out’ and receiving care. They may be faced with unwanted exposure if they have been ‘in the closet’, as many people with LGB identities pre-Stonewall (during the time of criminalisation and psychiatric attempts at ‘cures’) may have been. This particularly applies to being recognised as partners of people who are terminally ill or in need of long-term care (e.g. dementia care). If they do not get such recognition, they may find themselves excluded from their loved-one’s care, and even death and funeral, by service providers and/or birth family. On the other hand, others who have previously been out (either fully or selectively) may feel it necessary to go back in the closet, particularly in terms of their own care, in order to avoid homophobia from care providers and fellow service users. Older people with transsexual identities also have very real concerns about the need for personal care in frail, dependent later older age and potential transphobic attitudes among care givers. On top of this, most LGBT activists fail to address the needs of older people within their communities, due to ageism, leaving older people with LGBT identities with nowhere to turn.
The UK, in comparison with the USA, enjoys far greater recognition of same-sex relationships and transgender identities and more formal policies relating to health and social care provision for older people with LGBT identities in housing, health and social care. However, older people with LGB identities, in both the USA and the UK, are inadequately protected from discrimination in law. In particular, new anti-discrimination legislation, the Equality Act 2010, explicitly excludes protection from harassment on the grounds of sexual orientation outside of the workplace, including in housing, health and social care services. This limitation followed vigorous lobbying from the Church of England and other religious organisations who were concerned that anti-homosexual teachings might otherwise constitute harassment in law, thereby limiting freedom of speech. However, opponents of the exclusions (who did not include Stonewall, the leading LGB lobbying organisation which, oddly, raised no objections) have argued that they may conflict with other elements of the European Convention on Human Rights, namely ‘prohibition of discrimination’ (Article 14), ‘the right to respect for private and family life’ (Article 8), ‘freedom of thought, conscience and religion’ (Article 9), or ‘the prohibition on inhuman or degrading treatment’ (Article 3).
As a result of these exclusions, the UK has created two-tier anti-discrimination legislation with people with LGB identities receiving lesser protection. The exclusions disproportionately affect older people with LGB identities, as they are more likely to be users of (sheltered) housing, and of health and social care services. However, their invisibility in academia, service provision and activism has meant the impact on older people with LG identities has been overlooked.
There is an urgent need, both nationally, and internationally, to address the marginalisation of older people with LGB identities, and the needs of older people with transgender identities, in order to resolve these inequities.

Intimate Violence, Victim Autonomy & State Due Diligence

Recently, I had occasion to re-read the momentous case of Opuz v. Turkey before the European Court of Human Rights (a case we've discussed on a number of occasions). (The photo at left shows some students and I visiting the Court several years ago). In Opuz, the Court ruled that Turkey’s failure to respond to twelve years of domestic violence against a woman and her mother (who was ultimately killed by the perpetrator) amounted to a violation of the right to life (set forth in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms); a violation of the right to be free from torture and ill-treatment (Article 3); and a violation of the right to non-discrimination on the basis of sex (Article 14).
In so ruling, the Court determined that laws on Turkey's books addressed to protecting victims of intimate violence were not fully implemented:

• Protective orders took weeks to be issued and then courts failed to enforce them;
• Police either attempted to convince the (usually female) victim to drop her complaint or interjected themselves into the relationship in an effort to arbitrate a resolution of the dispute;
• Prosecutors refused to pursue cases;
• Courts entertained "provocation" and "defense of honor" excuses and issued sentences that are more lenient than those awarded for comparable crimes committed outside domestic context; and
• knowledge of the laws was low within the populace.

Acknowledging that it cannot place an "unreasonable or disproportionate" burden on the State vis-a-vis the State's positive obligations to prevent violations, the Court held nonetheless that the State's duty to intervene is triggered as soon as the State's agents know (or should know) that there is a real and immediate threat to an individual. (Para. 129). In light of the escalating violence against the applicant and her mother, the Court held that the responsibility for the effective prevention and prosecution of acts of intimate violence fell squarely on the State.

One aspect of the case on which we've not heretofore focused involves the fact that several times over the period in question, the applicant (at left, photo credit) and her mother filed, but then withdrew, criminal petitions against the abusive husband. The Court thus had to consider whether the authorities were nonetheless obliged under the circumstances to pursue the criminal proceedings against the husband.

The Court noted that a number of states require the authorities to continue criminal proceedings even when the victim withdraws a complaint in cases of domestic violence. In other states, the authorities may continue such proceedings in the public interest in light of several factors, including:

• the severity of the offense and whether it was premeditated,
• the use of a weapon and the issuance of threats,
• the presence of children or other at-risk individuals in or around the household,
• the current state of the relationship of the victim and the perpetrator,
• the perpetrator's criminal history,
• perceptions about the existence of a continuing threat, and
• the history of the relationship between the victim and the perpetrator.

Some states make the further distinction between crimes that are privately prosecutable and require the victim's complaint, and other--usually more serious--offenses that are prosecutable in the public interest in the absence of the victim's complaint and even without the victim's support. (See paras. 87-89).

In Turkey, it is only where the crime in question resulted in unfitness to work for ten days or more that the authorities were required to pursue criminal proceedings even absent a complaint lodged by the victim. (Para. 123). Indeed, Turkey argued that it would have violated the applicant's right to privacy and family life, set forth in Article 8 of the Convention, were the police to have separated the husband from the family.

The Court noted that a balance must be struck between the right of every person to be protected from intimate violence and the parallel rights to privacy and the family. (Para. 138). Here, the Court determined that Turkey had not struck the right balance in light of the factors listed above. Rather, the Turkish legislative framework set too high a bar to allow a prosecution to go forward absent a complaint from the victim. In addition, the authorities, although not entirely passive, failed to display the necessary due diligence to protect the rights at issue in light of those protective measures that were available to them and the severity of the harm. Bearing in mind the many reasons a victim might withdraw her complaint (including threats, "false consciousness," an apparent reconciliation, and a faith in the perpetrator's willingness and ability to reform), the rights to privacy and the family cannot be applied in such a way that they effectively override those rights addressed to the very safety of the private realm in the first place.

Interights intervened in the case (their case file is here) and provided an excellent brief on the emerging due diligence standard in human rights law. The brief traces trends in domestic law away from requiring victim participation in such cases towards placing authority for effective prosecution on the State. In addition, the brief noted that other persons and entities (such as medical personnel, family members, and neighbors) can increasingly report cases of domestic violence.

The petitioner, Nahilde Opuz, is reportedly in hiding, concerned that her ex-husband will retaliate against her for pursuing her case.

For the Sake of the Children

On Tuesday, following an increasingly interesting avenue for vindicating the human rights of undocumented immigrants, the Appeal Court in the Hague and the High Court in London issued decisions upholding the rights of the children of failed asylum seekers. Both courts applied the European Convention on Human Rights (ECHR) in finding the state practices unlawful. Though each court was careful to apply the convention narrowly, these decisions may be part of a trend that may expand protection of migrants through the rights of their children.
In the Dutch case, a failed Angolan asylum seeker and her three minor children won the right "not to be put out on the street." In other words, though the woman has refused to cooperate with efforts to remove her, the Appeal Court in the Hague held that the Dutch state is obligated to provide shelter and care to her and her children until they leave the country or the children reach the age of majority. The state had wanted to place the children in foster care to facilitate deportation the mother, but the court decided that the children's right to family unity overrode the state interest in immigration enforcement. The opinion draws on the jurisprudence of the European Court of Human Rights, focusing on the children's right to a family life under Article 8. Though the Dutch court notes that the expansion of immigration status under Article 8 is limited, it distinguishes this case as determining whether the government could kick the family out of the free refugee housing center in which they resided, not whether the mother could obtain lawful immigration status.
In the English case, the High Court considered the legality of the detention of the minor children of failed asylum seekers. The court read the UK Home Department's written policy to require that families with children be detained only in exceptional circumstances, but found that these limits on detention of children were not applied in practice. The opinion draws on several reports by British officials, including the Chief Inspector of Prisons, the Children's Commissioner for England, the House of Commons Home Affairs Committee, and the Independent Chief Inspector of the UK Border Agency, all of which harshly criticized the practice of detention of children for sustained periods of time. Though the UN Convention on the Rights of the Child has not been incorporated into UK domestic law, the court held that UK immigration law requires compliance with Articles 3 and 37(b) of the treaty, protecting the best interests of the child and prohibiting arbitrary detention, in decisions to detain children. Moreover, the court found a violation of Article 5 of the ECHR, which protects against arbitrary detention.
These decisions are a far cry from extending a right to residency to undocumented migrants, even those with minor children who face unstable and potentially violent situations in their home countries. Yet they fill important gaps in protection, and offer a creative route for expanding the human rights of those who are often left vulnerable under domestic laws and practices. For those of us beyond the jurisdiction of the ECHR, the decisions offer a tantalizing glimpse of the impact of a robust supranational human rights regime on domestic law and policy on the treatment of migrants. And though the holdings are modest, the use of human rights language with respect to undocumented immigrants and their children and the explicit prioritizing of their rights as individuals over the state's interest in enforcement (as compared to the federal preemption analyses used to assess the rights of immigrants in recent U.S. decisions) holds significant expressive power.


(translation of the Dutch Appeal Court decision, and all errors therein, are mine; a newsclip about the case with English subtitles is available here)

The European Court of Human Rights on Abortion in Ireland

This morning in A, B & C v Ireland the European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

There is more commentary, including from IntLawGrrls alum Máiréad Enright, on Human Rights in Ireland.

French "constitutional thunderbolt"

In a last bit of business before summer vacation, the French Conseil constitutionnel issued a landmark decision holding that the "ordinary" regime of garde-à-vue (pre-arraignment police custody, known as GAV) is unconstitutional. The decision is not the resounding civil rights victory we might like, but it is remarkable in at least a few respects.
It is one of the first decisions based on post-hoc review, unheard of in France until President Nicolas Sarkozy's constitutional law reform package came into effect last summer. Many thought the reform would be ineffectual with respect to citizen-initiated post-hoc constitutional review because the "right" was subject to too many filters. And I doubt Sarkozy suspected his reform would result in one of the primary tools of law and order being held unconstitutional.
But voilà! 36 people subjected to garde-à-vue claimed the regime was unconstitutional, got through the filters, and and won. (See too this paper by IntLawGrrls guest/alumna Jacqueline Hodgson.)
While the Conseil didn't agree with all of the petitioners' arguments, to the French legal community's general astonishment, it declared not just 1 or 2 code provisions unconstitutional, but the entire "ordinary" regime of garde-à-vue. In so doing, the Conseil overturned its own 1993 decision, issued prior to the offending provisions' enactment, that GAV was constitutional.
In what may be considered a slap at Sarkozy's law-and-order policies (put into effect both while he was Interior Minister--top cop--under President Jacques Chirac, as well as under his own presidency), the Conseil:
► Laments the banalization of GAV: in 2009, GAV was ordered 790,000 times, an increase of more than 140% above the 320,000 GAV orders in 1993, when François Mitterand was still president.
► Notes, as controversy swirls around the proposed elimination of the juge d'instruction (prior IntLawGrrls posts here, here, and here), that fewer than 3% of criminal cases are handled by these investigating judges, such that persons are generally tried solely on the basis of the evidence gathered while they are in custody (24-48 hours under the "ordinary" regime). In addition, while the number of polices judiciaires has doubled since 1993, the requirements for becoming one of these detectives have been reduced.
After these general considerations, the Conseil addressed the more specific issues of:
► Whether GAV is incompatible with human dignity (no);
► Whether persons subject to GAV (GAVees) have effective assistance of counsel (no); and
► Whether GAVees' right to silence is sufficiently protected (no).
While GAV is necessary and not an affront to one's dignity (but see my post on the UN Torture Committee's assessment of the French penal system), the "ordinary: regime does not strike an appropriate balance between crime prevention/punishment and the exercise of constitutional rights. In particular:
► GAV may be extended from 24 to 48 hours in all cases, not just those involving offenses meeting a particular level of gravity;
► GAVees may consult with counsel for 30 minutes at the beginning of their GAV, but may not have counsel present during questioning; and
► GAVees are not notified of their right to remain silent.
While the right to remain silent seems like a fairly logical consequence of the right not to incriminate oneself, French law did not require arrestees to be notified of this right until 2000 (in the law on the presumption of innocence), and that requirement was eliminated in 2003. In this just-issued decision, therefore, the Conseil has just effectively told the government that it must reestablish the right to such notification, without which the ineffective assistance of counsel is exacerbated. The Conseil does not say that counsel must always be present during questioning, however; it merely says that a blanket prohibition, like the ability to extend GAV, is too broad.
Unfortunately, the Conseil did not agree with petitioners that allowing the prosecutor to prolong garde-à-vue violates the European Convention on Human Rights, which requires such decisions to be made by an independent, impartial judge (cases on this issue are pending in other French courts and before the European Court of Human Rights, which has so far stopped short of saying the French rule violates the Convention).
The Conseil also refrained from finding the "special" GAV regime -- established to handle terrorism, drug trafficking, and organized crime -- unconstitutional. It declined even though that regime allows for up to 6 days of garde-à-vue, in the very conditions the Conseil deemed unconstitutional under the "ordinary" regime; that is, lack of effective representation, presumption of innocence not sufficiently protected.
Moreover, the Conseil gave the Sarkozy administration 11 months (!) to rewrite the GAV laws in accordance with this decision. As a result, no GAV measures ordered before July 1, 2011, may be challenged on the basis of this decision.

Domestic violence as torture

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14 of the European Convention.

For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, the Opuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

As a result, state failures to prevent and redress domestic violence can now be understood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

The Opuz holding is an important milestone in this regard.

The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.

"state authorisation of institutionalised child abuse"

Oliver Twist (image credit) is alive and well and living in juvenile justice centers in the UK! The title of my post is taken from this morning's Guardian article announcing what might be called more torture revelations in the UK: a "brutal guide to punishing jailed youths" has just been disclosed after the parents of two boys who died in a secure training center in 2004 won a freedom of information fight.
Way back in 1982, in a case called Campbell and Cosans, corporal punishment in its schools resulted in the UK's being found guilty of violating the European Convention on Human Right's prohibition on torture and article 2 of Protocol 1. In 1991, the UK ratified the Convention on the Rights of the Child, which the government announces on a dedicated website means the UK must respect the rights listed in the convention of all children in the UK. This includes, among other things, providing "special protection for . . . children in the juvenile justice system." But the training and self-defense manual that tells staff how to deal with unruly children as young as 12 tells them to:

■ "Use an inverted knuckle into the trainee's sternum and drive inward and upward."

■ "Continue to carry alternate elbow strikes to the young person's ribs until a release is achieved."

■ "Drive straight fingers into the young person's face, and then quickly drive the straightened fingers of the same hand downwards into the young person's groin area."

Such instructions do come with at least a couple of warnings, such as:

... the techniques risk giving children a "fracture to the skull" and "temporary or permanent blindness caused by rupture to eyeball or detached retina"; or

... the measures could cause asphyxia. One passage, explaining how to administer a head-hold on children, adds that "if breathing is compromised the situation ceases to be a restraint and becomes a medical emergency".

Suddenly, the torture files released a few days ago aren't such a scoop.

More Torture Files: The United Kingdom Releases Its Own "Torture Papers"

We've blogged on the infamous "torture memo" written by legal advisers telling President George W. Bush that the Torture Convention did not apply to interrogations of Guantánamo detainees. Now the United Kingdom has released 900 papers (so far) revealing Britain's support for and participation in extraordinary renditions and torture.

One of the most startling documents is chapter 32 of MI6's general procedural manual, entitled "Detainees and Detention Operations", which advises officers that among the "particular sensitivities" they need to consider before becoming directly involved in an operation to detain a terrorism suspect is the question of whether "detention, rather than killing, is the objective of the operation".

Reminds me of the McCann v United Kingdom (2005) case before the European Court of Human Rights, in which 3 Irish Republic Army members were summarily shot at point-blank range to make sure there was no possibility they could set off a car bomb. In fact, the UK's struggle against terrorism since 2001 has involved activities that have already been judged to violate the European Convention on Human Rights, in particular the prohibition on torture (see, for example, Chahal v. United Kingdom (1996) on "diplomatic assurances" and torture, and the more recent Saadi v. Italy (2008) decision (prior post); but see, in the UK's favor, its prevention of deportation based on Saadi).
More than just a memo, the torture files come in 4 chapters:
► M16 legal advice;
► Downing Street's role;
► The Whitehall row; and
► The interrogations.
Bonne lecture!

Enforcing Roma Rights

Last month, the European Roma Rights Centre (ERRC) filed a complaint against Portugal under the Revised European Social Charter, charging violations of the rights to housing and non-discrimination as well as the rights of the family to social, legal, and economic protection and the right to protection against poverty and social exclusion. The Charter, originally drafted in 1961 and revised in 1996, protects a broad range of negative and positive social and economic rights that are not fully covered by the European Convention on Human Rights.
The Charter has been signed and ratified by most European nations, from Albania to the United Kingdom, and fourteen states, including Portugal, have accepted its collective complaint procedure. This mechanism allows certain trade unions and international NGOs to file against member states claims that are adjudicated by the European Committee of Social Rights (ECSR), a group of fifteen independent experts. Where the Committee of Social Rights finds a violation of the Charter, the Council of Europe's Committee of Ministers adopts a recommendation to the relevant State Party. While the Committee of Social Rights is far from attaining the stature of the European Court of Human Rights, it is increasingly being used as a venue for vindicating social and economic rights in Europe. Sixty-one complaints have been filed through the collective complaint procedure since its creation in 1998, with nearly half of those complaints filed since 2006.
The European Roma Rights Centre's current claim against Portugal is based on

problems of access to social housing, substandard quality of housing, lack of access to basic utilities, residential segregation of Romani communities and other systemic violations of the right to housing. . . compounded by a lack of practical access to effective legal remedies for redress.

This is the seventh complaint filed before the Committee of Social Rights by the Centre, which has presented similar housing claims against Bulgaria, France, Greece, and Italy, creating an ECSR jurisprudence on which it can draw. Moreover, the ERRC "aims to establish beyond any doubt that the right to housing, particularly concerning vulnerable groups such as Roma, is firmly entrenched in international law" by drawing from existing treaty law, including the European Convention on Human Rights, and relevant soft law.
The ERRC's strategy and the ECSR itself present interesting models for the enforcement of social and economic rights of migrants, though it's hard to imagine the creation of a similar mechanism to which the United States would submit itself. In the wake of frightening state experiments with immigration law, though, it's worth considering how we might start taking the first steps towards creating an equally robust human rights regime right here in North America. A distant dream, but one worth pondering nonetheless.

The Interlaken Declaration and the European Court of Human Rights

Last week saw the much anticipated Interlaken Conference on the Future of the European Court of Human Rights (conference website), intended to secure workable solutions for the future of the Court. The Court, which started as a part-time court working with a commission, is now full-time and has developed under the recently ratified Protocol No. 14 (which comes into force on 1 June 2010) in order to try to meet the very real challenges of resources and workloads. Those challenges, however, are not entirely resolved by Protocol No. 14 and further work is needed in order to try to ensure the stability and continuing operation of the Strasbourg Court as an important part of Europe’s human rights infrastructure. This raises questions as to what the role of the Court is: is it an adjudicative court that ought to focus mostly on resolving disputes and providing redress, or is it a constitutionalist court? Ought it to be both and, if so, is that a feasible objective? In this post I intend to outline some of the challenges faced by the Court, consider the extent to which this question as to role and function remains unresolved by Protocol No. 14, and consider how this debate might be relevant in the Interlaken process.
The European Court of Human Rights has four main formalised functions to hear inter-state complaints where they arise; to hear individual complaints where they arise and are deemed admissible; to provide Advisory Opinions when requested (Art.47, ECHR); to clarify interpretation of judgments and assess whether judgments are being abided by where requested by a super-majority of the Committee of Ministers (Art.46, ECHR). These are the formal functions of the court, however, and a mere recitation of them or even a detailed analysis of them does not answer the more fundamental question of what role the Court is intended to play.
It is commonly assumed that there is some tension between the Court’s roles as an adjudcative court in individual cases (albeit in a subsidiary manner as complainants must exhaust all domestic remedies first) and its role as a constitutionalist court for the Council of Europe. If the Court is primarily intended to carry out the former role then rules relating to admissibility, remedies, supervision of judgments etc… have an importance that must be jealously guarded. If, however, the Court also, or even primarily, has a constitutionalist role then what is important is not that every individual complainant would have her case heard and adjudicated upon, but rather that judgments of the court would outline and formalise (or ‘harden up’) the constitutionalist principles of the Convention. This kind of role does not require the Court to have particularly open admissibility rules or for every individual complainant to have satisfaction of some kind; rather it requires a more strategic kind of role in terms of case selection (not, one would think, entirely dissimilar to the certiorari decisions of the US Supreme Court)
While most superior courts in domestic jurisdictions carry out both of these kinds of roles without a great deal of difficulty, the European Court of Human Rights faces very particular challenges in doing so. First of all the Court was, until relatively recently, only part-time. Secondly, recent years have seen the expansion of the Council of Europe to more than 40 states from which complaints can flow. Thirdly, the Court was (and continues to be) under-resourced. Fourthly, the Court must deal with an enormous diversity of legal systems within its jurisdiction and to the extent possible master the relevant elements of domestic legal systems in order to effectively analyse the position of a complaint vis-à-vis the Convention. Fifthly, the Court has witnessed an enormous increase in complaints all of which have to be given at least an initial admissibility consideration even if the vast majority of them are never considered on their merits (for failure to be deemed admissible) leading to an essentially unmanageable workload. These five points (which might be boiled down to resources, scope and scale) are perhaps the main areas where the Court’s future—as either an adjudicative court or a constitutionalist court or both—looks vulnerable.
Protocol No. 14 represents an important, although on its own insufficient, attempt to tackle these difficulties. Protocol 14 introduces some important changes into the way in which the Court works especially in relation to admissibility decisions which can now be made by single-judge chambers with the assistance of a rapporteur. In addition, Protocol No. 14 provides that if a single-judge chamber finds that an application is ‘not inadmissible’, forward it to a committee of three judges. The committee of three judges may also make decisions as to admissibility. In addition, these three-judge committees may deliver a judgment in the case if it determines that it is one where the underlying question that arises is “already the subject of well-established case-law of the court” (Art.28, ECHR). The concept of ‘well-established case-law of the court’ is problematic, especially as the ECHR does not operate a system of stare decisis that we are used to in the common law world and may well result in less cases progressing ‘up’ to the seven-judge chambers or, indeed, the Grand Chamber where arguably the most constitutionalist decision making takes place. In addition, Protocol No. 14 introduced the principle that the Court can reject an application where “the applicant has not suffered a significant disadvantage” (Art. 35(3) ECHR).
In some important ways, then, Protocol No 14 attempts to deal with one of the most serious challenges facing the Court from a practical perspective, namely the sheer volume of complaints and the need for effective case management as between the different compositions of the Court. However, these mechanisms as introduced seem also to be focused on trying to maintain the dual functionality of the Court as adjudicative and constitutionalist. This is notwithstanding the concerns expressed by some commentators that the new admissibility requirement and the ‘well-established case-law of the court’ principle might undermine the capacity of the Court to carry out either or both of these functions well. In a new book coming out this summer entitled The European Convention on Human Rights Act: Operation, Impact and Analysis (Round Hall/Thomson Reuters, 2010, forthcoming) which I co-authored with Dr. Cliona Kelly of NUI Galway, we deal very briefly with these concerns (brief merely because the book’s focus is primarily domestic). We argue that in fact the changes introduced by Protocol No. 14 will allow for the continuing performance of both kinds of functions and, inasmuch as Protocol No. 14 increases the role of the Court in supervising judgments, it may “accelerate the hardening of norms within the Convention system and, combined with the now facilitated accession of the European Union to the Convention, greatly advance the process of regional constitutionalisation” (Chap.6).
However, there is genuine concern that the reform of the Court in order to secure its future will result in the sacrificing of one or another of those functions. This is well demonstrated by the following extract from a statement submitted from 156 different NGOs:

The European Court of Human Rights must be a strong Court, accessible to individuals claiming violations of their Convention rights when they have had no effective redress domestically. It should be a Court which will give a reasoned decision on whether a case is admissible, or a reasoned judgment on the merits of a case, without undue delay. The Court should be given the resources by states to function properly, and not at the expense of other Council of Europe human rights mechanisms.

This is no lean demand, and it is one that in my view clearly expresses a desire for the Court to continue to carry out both adjudicative and constitutionalist functions. It asks for the Court to be accessible to individuals who have no domestic redress and to give reasoned decisions without undue delay: an adjudicative and a constitutionalist demand. The submission goes on to call for the strengthening of national enforcement of the Convention. This would enhance the Convention’s constitutionalist character and relocate adjudicative functions under Convention principles to the domestic sphere in a manner that is entirely in-keeping with the subsidiary nature of the regional human rights regime and indeed with the idea of the Convention as a constitutionalising—or if one would prefer, harmonising or synergetic—document. The group of NGOs then goes on to make the following exact proposals:

Any reforms to the European Court of Human Rights should ensure that:
• the fundamental right of individual petition is preserved and not further curtailed;
• there is an efficient, fair, consistent, transparent and effective screening of applications received, to weed out the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
• judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
• the Court is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies;
• solutions to the problems faced by the Court, including the varied reasons for inadmissible applications, are devised on the basis of informed analysis, transparent evaluation of both the root of the problems and recent and future reforms.

Again, these more exact and specific requests display a desire for the Court to be both adjudicative and constitutionalist. The reality is that continuing with that duality of function is resource-heavy and it is right to argue that the Court must be fully resourced including by the continuing development of research units, rapporteurs, clerks etc… and the continuing cultivation of a body of expertise in Strasbourg both for the benefit of the Court and for the benefit of the legal systems to which people working in Strasbourg might subsequently return. However, no amount of resourcing will bring about the concrete enforcement of the Convention at domestic level and that is necessary for the Court and Convention to work. This is something that Interlaken can not secure; it must be brought about through domestic politico-legal action in every one of the member states (and some, inevitably, will need to do more than others). What is certain, however, is that Interlaken and the process that follows it must confront this question of role and function and, if the duality is to be maintained, must frame its proposals for the future of the Court with the demands of such duality fully in mind.
On Friday the Interlaken Declaration was issued. Although it contains a lot of material of interest (much of which is really about nuts-and-bolts resourcing of the Court), for the purposes of this post it is worth noting that individual petition is reaffirmed as a “cornerstone” of the Court and Convention. That notwithstanding, there is also a call for further ‘filtering’ to be introduced which suggests that the focus within the Court itself—and certainly within the larger compositions and the Grand Chamber—will be on cases that present opportunities for constitutionalist decision-making; a development that may not please those who believe in the importance of the Court’s adjudicative role if it results in the watering-down of the principle that all applications will be considered to at some degree.

(Cross-posted at Human Rights in Ireland)

In inquisitorial & adversarial systems, defence counsel's core functions before & during trial

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Although the trial is the public setting in which a criminal case is determined and so is often the focus for media comment and academic critique, the pre-trial process is at least as important, if not more important, for a number of reasons:
► First, most people’s experience of the criminal justice process does not involve a trial, but an arrest, a stop and search, or a period of detention and questioning in police custody.
► Second, for those cases that do go to trial, the nature of the evidence presented depends on the pre-trial process. As the European Court of Human Rights has made explicit in its jurisprudence -- applying, from the point of arrest and detention onward, the fair trial guarantees contained in Article 6 of the Convention on Human Rights -- the fairness of the trial depends on the fairness of the pre-trial. The right to custodial legal advice is of fundamental importance in this, as it is the key to equality of arms as well as being closely linked to the accused’s ability to exercise her right against self-incrimination. This has been underlined in recent case law such as Salduz v. Turkey (2008) and Panovits v. Cyprus (2008). At paragraph 55 of Salduz, the Court wrote:

The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

The Court added that there will need to be compelling reasons to justify such a restriction.
Doubtless, the process of judicial supervision by either a prosecutor or an examining judge will be cited as just such a compelling reason in many jurisdictions. But as IntLawGrrl guest/alumna Susan A. Bandes noted in her recent post, this overstates the role of such supervision both in theory and in practice. Prosecutorial supervision is the norm in countries such as Germany, the Netherlands. It holds sway as well in France, where, as noted in this prior IntLawGrrls post and detailed in this governmental report, President Nicolas Sarkozy is determined to abolish the more politically independent juge d’instruction. But whilst prosecutorial supervision may provide some basic oversight of and accountability for the police enquiry, it is no substitute for the role performed by the suspect’s own lawyer – and this latter is the effective defence assistance envisaged by the European human rights court.
► Third, pre-trial is important because it is inextricably linked to the trial. The character of the pre-trial process has a determinative influence upon the nature of the evidence presented at court and indeed, the decision whether or not a trial takes place at all. As I discussed in my chapter entitled Conceptions of the Trial in Inquisitorial and Adversarial Procedure (2006), under adversarial procedures, the parties are responsible for the collection and presentation of evidence, so we would expect defence counsel to have an active pre-trial role. Quite simply, if she does not gather the evidence for the accused’s case, nobody else will. In jurisdictions with a more inquisitorial tradition, such as France, the judge leads the enquiry both before and at trial – in theory at least. For this reason, the defence role is often less developed.
I argue in my chapter entitled The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure (2008), that a core defence function exists whatever the procedure. This has been recognized at trial, with the need for the accused to be represented, to have sight of the prosecution case, to have an opportunity to interrogate the evidence against her, and so on. But this is often too late. The effectiveness of that representation will depend on what goes before.
If the trial serves more as an affirmation of a pre-trial judicial enquiry, as in countries such as France, defence counsel must participate in the enquiry in order to be effective at trial. We cannot rely on the distant and bureaucratic oversight of a prosecutor to ensure the proper development of the defence case. Her different professional status and ideology can, as I've detailed here and here, can make this difficult. That fact was demonstrated powerfully, moreover, in the Outreau case, subject of this governmental inquiry into "the causes of dysfunction in the system of justice." Further support for this argument in favor of defence participation comes from the attempts of the European Union to establish universal procedural safeguards for suspects, discussed here. Unfortunately, these attempts have been resisted by countries who currently deny suspects access to legal advice during the police interrogation of the suspect.

The Values of the Veil

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

On Jan 26th 2010, the widely anticipated Parliamentary Commission Report on the wearing of the voile intégral (face veil) in France was published. The 200 page report includes recommendations for legislative and policy initiatives to deter and limit the practice, which is described as a challenge to the French Republic and to republican values. Against those who question France’s preoccupation with the veil, the Report argues that the veil represents more than a piece of cloth; it reflects a system of values, a set of social and family constraints that weigh on the Muslim woman.
Debates on the wearing of the veil in France have coincided with a consultation on national identity, ‘Le grand débat sur l’identité nationale,’ which the Minister for Immigration, Eric Besson, has said will seek to redefine familiar concepts of citizenship and national belonging. Pre-empting the presentation of the Commission’s Report to Parliament, a leading figure in the governing UMP party, Jean Cope, presented proposals for a sweeping prohibition on the wearing of the face-veil in all public spaces. The Commission’s Report, however, recommends a limited prohibition, restricting the wearing of the face-veil in public services. This recommendation was met with a heated response from Parliament, with some representatives rejecting what they referred to as a ‘demi-loi’ (half-law). By restricting the scope of the proposed prohibition, the Commission hopes that the requirements of proportionality, key to ECHR protections on religious freedom and freedom of expression, will be met. The concern with proportionality, and effectiveness, is evident also in the discussion on enforcement. Rather than proposing the imposition of fines or other penalties for non-compliance, the Report proposes that wearing the face-veil will lead to a refusal of public services, though how this will be enforced in public transportation, for example, is unclear.
What is clear from the Report is that the possibility of a Muslim woman choosing to veil was problematic for the Commission. The Report briefly acknowledges that a multiplicity of motivations may lie behind the wearing of the veil, and that a diverse range of reasons were presented to explain the practice. Ultimately however, this plurality is erased, the wearing of the face-veil, the Report notes, represents: ‘une servitude volontaire, libertes alienées et situations de contraintes.’ Evident also in the Report is a questioning of the normativity of Muslim families. Like Antigone, the veiled Muslim woman represents a non-normative family and a set of kinship relations that do not conform to dominant cultural norms.
The continuing reach of colonial preoccupations is evident in the Commission’s report. In his foreword, the Rapporteur, Eric Raoult recounts a meeting in Damascus with ‘Farah’, a young (of course) veiled woman from Marseille. He concludes his ‘living testimony’ with an emotional appeal: it is ‘pour les yeux de Farah’ (for the eyes of Farah), that he and his fellow Commission members have worked, ‘Farah de Damas, du Koweit ou du Golfe, mais avant tout, Farah de Marseille!’ Not only is this a living testimony, it is a veritable call to arms.
The Report reflects a deep rooted suspicion of multiculturalism, including rights claims asserted by Muslim women to support the practice of veiling. Radical and fundamentalist religious groups stand accused of instrumentalising human rights norms to support their communitarian (non Republican) goals. The appeal to the House of Lords in the 2005 Begum case in the UK, is given as an example of one such communitarian challenge. This criticism falls within France’s broader contestation of minority rights claims, long a feature of its engagement with UN human rights bodies.
Less controversy has surrounded the Report’s proposals on immigration and citizenship laws, reflecting the seeming inevitability and greater legitimacy of coercive measures in this field. The Commission recommends changes to legislation governing immigration and asylum, to explicitly include equality between women and men, and secularism, amongst the values that applicants for family reunification or long-term residence should be familiar with. Drawing on the formula of the Conseil d’État, in its 2008 Silmi decision on naturalisation, the Commission recommends refusal of a residence permit for anyone manifesting a ‘radical religious practice’, incompatible with republican values, including in particular, gender equality. Such a refusal would be justified on grounds of the applicant’s failure to integrate. On citizenship laws, the Commission recommends amending the Civil Code to explicitly provide that a radical religious practice would be considered a failure of assimilation. These proposals build on existing trends in immigration and citizenship law in France, and at the EU level, where recent years have witnessed an expansion in integration testing.
The expansion of integration testing seeks to assess the newcomer’s commitment to liberal democratic ideals, including gender equality. This ‘gender turn’ in citizenship and immigration practices mark a challenging departure and raises questions as to what are the costs of such inclusion. These trends, of course, cannot be divorced from the broader politics, and bio-politics, of the post 9/11 world. With the increasingly aggressive focus on integration, Muslim women in Europe are being placed yet again at the center of the human rights versus Islamic world dialectic.

Human Trafficking under the ECHR

This week the European Court of Human Rights handed down a landmark judgment on human trafficking in the case of Rantsev v Cyprus & Russia. The case concerned Oxana Rantseva, a Russian who went to Cyprus where she worked as a ‘cabaret artiste’—a title that is widely used to describe prostitutes in Cyprus. When she attempted to leave her ‘employment’, Rantseva was brought to the police by her employer who wanted her extradited back to Russia so that he could employ someone else in her stead. The police—aware of the work she was doing—noted that she was not illegally in Cyprus (as she had a work permit) and instructed her to return with her employer. That night, while Rantseva attempted to escape, she fell from a balcony and died. Following her death, and notwithstanding the suspicious circumstances of it and the Article 2 obligation to carry out an effective investigation in cases of death, the possibility that Rantseva was a victim of human trafficking was never investigated by the Cyprian authorities.

The case provided the European Court of Human Rights with one of its first opportunities to tackle the issue of human trafficking head-on. First, and perhaps most significantly, the Court found that the prohibition on slavery, servitude and forced labour in Article 4 of the Convention prohibited human trafficking notwithstanding the fact that trafficking is not expressly mentioned anywhere in the Convention. In paragraphs 281 and 282 the Court held:

The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere (see paragraphs 101 and 161 above). It implies close surveillance of the activities of victims, whose movements are often circumscribed (see paragraphs 85 and 101 above). It involves the use of violence and threats against victims, who live and work under poor conditions (see paragraphs 85, 87 to 88 and 101 above). It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade (see paragraphs 161 and 266 above). The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place “under a regime of modern slavery” (see paragraph 84 above).

There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention

Very importantly, the Court did not only find that Article 4 covers human trafficking but also held that states have a positive duty to prevent human trafficking and to protect victims. This positive obligation gives rise to an obligation to effectively investigate situations where there is a suspicion of trafficking and to co-operate with the investigations of other states.

288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73).

289. Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol is silent on the question of jurisdiction, the Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory (see paragraph 172 above). Such an approach is, in the Court’s view, only logical in light of the general obligation, outlined above, incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination (see paragraph 149 above). It is also consistent with international agreements on mutual legal assistance in which the respondent States participate in the present case (see paragraphs 175 to 185 above).

This is analogous to the positive obligations that have developed under Article 2 (right to life), for example, as a means of ensuring effective realisation of Convention rights. Importantly, it also attempts to create a bulwark against the all too often realised situations where cases of potential trafficking are effectively ignored by law enforcement authorities or treated as situations of prostitution in which the people who are actually in need of protection become the investigated and sometimes criminalised parties. The obligation for cross-border co-operation in investigations is clearly important in trafficking, particularly taking into account the fact that there is a significant amount of cross-border human trafficking within the member states of the Council of Europe itself.