Category Archives: international human rights

International Criminal Court Authorizes Investigation of 2008 Georgia-Russia Conflict

ICC Georgia

ICC GeorgiaThe International Criminal Court (ICC) last week authorized the Office of the Prosecutor to investigate alleged war crimes and crimes against humanity committed in South Ossetia from July 1 to October 10, 2008 during the armed conflict between Georgia and Russia. [ICC Press Release] According to the ICC Prosecutor, between 13,400 and 18,500 ethnic Georgians were forcibly displaced and the ethnic Georgian population in South Ossetia was reduced by at least 75 percent. [The GuardianThe forthcoming investigation will seek to gather additional evidence of international crimes committed in or around South Ossetia by Georgian, Russian, or South Ossetian forces and identify the individuals most responsible for the most serious abuses. See ICC Office of the Prosecutor, Corrected Version of “Request for Authorisation of an Investigation Pursuant to Article 15”, ICC-01/15-4-Corr., 16 October 2015.

In authorizing an investigation into the situation in Georgia on January 27, 2015, Pre-Trial Chamber I determined that all of the requirements set forth in Article 53(1) of the Rome Statute had been satisfied. See ICC, Situation in Georgia, ICC-01/15, Decision on the Prosecutor’s Request for Authorization of an Investigation(27 January 2016). Importantly, the Pre-Trial Chamber agreed with the Prosecutor that South Ossetia should be considered part of Georgia and not an independent State, and that alleged acts of sexual and gender-based violence appropriately fall within the scope of the investigation. See id. at paras. 6, 34, 35. This is the first time the ICC will examine alleged crimes committed by Russian authorities, and it is the first situation the ICC is formally investigating outside of Africa. Read more

Recent Developments at Khmer Rouge Tribunal Draw Praise, Criticism

ECCC
ECCC

The Extraordinary Chambers in the Courts of Cambodia
Credit: ECCC

Amid recent developments, legal experts have both lauded and criticized the proceedings of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal established jointly by Cambodia and the United Nations to prosecute those most responsible for crimes against humanity and other atrocities committed by the Khmer Rouge in the 1970s. While welcoming progress that has included charges against a new defendant and testimony on the genocide charges against two senior officials, observers have also raised concerns about specific delays or inaction by the tribunal, as well as areas of weakness in its respect for due process. Similarly, in his visit to the country this week, United States Secretary of State John Kerry welcomed the ECCC’s contributions to accountability, while lamenting the delay in its creation. [VOA] This post provides an update on the recent developments in the ECCC’s cases and reviews the challenges facing the court. Read more

ICTY Orders Retrial of Two Acquitted Defendants, Pursues Contempt Charges

Jovica Stanišić and Franko Simatović at the ICTYCredit: ICTY
Franko Simatović and Jovica Stanišić at the ICTYCredit: ICTY

Franko Simatović and  at the ICTY
Credit: ICTY

On December 15, 2015, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) overturned the Trial Chamber’s decision to acquit two high-level Serbian government officials charged with war crimes and crimes against humanity in connection with the forced displacement of non-Serbs from Bosnia and Croatia, and ordered their retrial. The officials, Jovica Stanišić and Franko Simatović, are being retried on all counts of the original indictment before the Mechanism for the International Criminal Tribunals (MICT), the body responsible for carrying out the residual work of the ICTY and its counterpart tribunal for Rwanda as both complete their mandates. In other ICTY news, the tribunal last month charged three individuals with intimidating witnesses in the pending trial of Vojislav Šešelj for similar crimes against non-Serbs; and, in September 2015, it granted the early release of Vladimir Lazarević, convicted in 2009 in connection with the forcible deportation of Albanians from Kosovo.

In May 2013, the ICTY Trial Chamber acquitted Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB, on all counts of the indictment, including joint criminal enterprise liability and aiding and abetting with respect to the forcible and permanent removal of the majority of the non-Serbian population from Croatia and Bosnia-Herzegovina between April 1991 and at least December 1995. The indictment alleged that in doing so, the defendants committed crimes against humanity and violations of the laws or customs of war, including persecution, murder, and deportation.

Last month, the Appeals Chamber ordered Stanišić and Simatović to be retried on all counts of the indictment. Specifically, the Appeals Chamber concluded that the Trial Chamber erred in its factual and legal determinations concerning joint criminal enterprise liability as well as the legal standard for aiding and abetting. See ICTY, Prosecutor v. Stanišić and Simatović, Case IT-03-69-A, Appeals Chamber Judgment, 15 December 2015. See also ICTY, Appeal Judgment Summary. Both Stanišić and Simatović pleaded not guilty to the charges against them at their retrial, which began on December 18, 2015. [Balkan Insight: Plead Not Guilty] Read more

European Court: Russian Interception of Mobile Phone Communications Violates Convention

European Court of Human RightsCredit: IJRC
European Court of Human RightsCredit: IJRC

European Court of Human Rights
Credit: IJRC

On December 4, 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) issued its judgment in the case of Zakharov v. Russia, concerning the compatibility of Russia’s secret surveillance of mobile phone communications with Article 8 of the European Convention on Human Rights (Convention). See ECtHR, Zakharov v. Russia [GC], no. 47143/06, Judgment of 4 December 2015. The case was brought by Roman Zakharov, who complained that the Russian law did not have sufficient safeguards against arbitrariness and abuse by authorities and this violated his right to respect for private life. The Court agreed, stressing that while Russia’s interception of communications pursued the legitimate aims of protecting national security and public safety, the prevention of crime and the protection of the economic well-being of the country, it needed to have adequate and effective guarantees against abuse. The Court held that there was high risk in a system such as Russia’s where the law enforcement bodies had direct access to all mobile telephone communications. Finding several shortcomings in the legal framework, the Court held that Russian law did not meet the “quality of law” requirement and was not “necessary in a democratic society.” The Court accordingly recognized a violation of Article 8 of the Convention. [ECtHR Press Release] The case was relinquished to the Grand Chamber March 2014, and had not previously been decided by another chamber of the European Court.

Facts and Domestic Procedure

The applicant is the editor-in-chief of a publishing company, the chairperson of a non-governmental organization focused on media freedom in the Russian regions, and a subscriber of several mobile network operators. In December 2003, he brought judicial proceeding against three mobile network operators, the Ministry of Communications, and the Department of the Federal Security Service for Saint Petersburg and the Leningrad Region, alleging that his right to the privacy in his telephone communications was being violated. He claimed that the Ministry of Communications’ Order no. 70, which allegedly had never been published, required mobile network operators to install equipment that permitted the Federal Security Service (“the FSB”) to intercept all telephone communications without prior judicial authorization. Claiming that the order unduly restricted his right to privacy, the applicant asked the district court to issue an injunction to remove the equipment installed pursuant to the order, and to ensure that access to telecommunications was given to authorized persons only. See ECtHR, Zakharov v. Russia [GC], no. 47143/06, Judgment of 4 December 2015, at paras. 8-10.

The district court dismissed the applicant’s claim on the ground that he failed to prove that the mobile network operators had transmitted any protected information to unauthorized persons or permitted the unrestricted or unauthorized interception of communications. Thus, the court stated that the installation of the equipment did not infringe the privacy of his communications. The applicant’s appeal was rejected. See id. at paras. 11-12.

In October 2006, the applicant lodged an application with the European Court of Human Rights and claimed that the system of covert interception of mobile telephone communications in Russia did not comply with the requirements of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (Convention). See id. at para. 148. In March 2014, the chamber to which the case had been allocated relinquished jurisdiction in favor of the Grand Chamber. [ECtHR Press Release]

The Court’s Discussion

Standing

The European Court first analyzed whether the applicant had standing to pursue his claim. Although the applicant did not show that his own communications had been intercepted by the State, the Court nonetheless found that he could claim to be a “victim” because the Russian surveillance scheme could be applied to any person using a mobile phone and, therefore, affects all such users. Moreover, because the Russian legislation did not provide any relief for individuals who suspected their communications were being intercepted, the Court did not require the applicant to prove an individualized risk of surveillance. See ECtHR, Zakharov v. Russia, no. 47143/06, Judgment of 4 December 2015, at paras. 175-79.

Article 8

In beginning its analysis of the surveillance scheme’s compatibility with Article 8, the Court stressed that the parties did not dispute the existence of Russian laws – namely the Operational-Search Activities Act of 12 August 1995 (hereafter “the OSAA”), the Code of Criminal Procedure of 18 December 2001 (hereafter “the CCrP”), the Communications Act, and Orders issued by the Ministry of Communications – that allowed for unrestricted government surveillance. The European Court found that these laws had legitimate aims, including the protection of national security and public safety, the prevention of crime and the protection of the economic well-being in the country. However, the Court concluded that these laws and policies did not provide adequate and effective guarantees to prevent arbitrariness and the risk of abuse. Based on its assessments, the Court found that the national law was too broad in scope, did not adequately regulate the duration of surveillance, did not properly provide for the retention or destruction of data, did not allow for meaningful judicial review of interception requests, allowed widespread interception of communications without public or judicial scrutiny, and did not appropriately notify or provide redress to those whose communications were intercepted. See id. at paras. 237-38.

The Court stressed that national law must define the scope of application of secret surveillance measures by identifying the circumstances in which authorities can use these measures. However, according to the Court, Russian law was uncertain in terms of who may access communications information and for what reasons. As such, it gave the authorities an almost unlimited degree of discretion, which created possibilities for abuse. See id. at paras. 243-48.

The Court noted that the legal provisions governing the circumstances in which secret surveillance measures must be discontinued did not sufficiently guarantee that there would not be arbitrary interference, because the requirement to discontinue interception when it was no longer necessary was mentioned in the CCrP only but the OSAA did not contain such a requirement. See id. at paras. 251-52.

The Court stated its satisfaction with the fact that Russian law contained clear rules on storage and use and communication of intercepted data. However, the Court also stressed its concern that Russian law gave unlimited discretion to the trial judge to store or to destroy the data used in evidence after end of trial and on this point the law was unclear. See id. at paras. 253-56.

The Court observed that Russian law contains an essential safeguard against arbitrary or indiscriminate secret surveillance because it gives courts the power to approve or deny interception of communications and the law enforcement agency seeking authorization must submit a reasoned request to the court. The European Court, however, noted that this judicial scrutiny is limited in scope because materials containing information on undercover agents or police informers may not be submitted to the judge, depriving the courts of the ability to make a comprehensive and fair assessment. The Court also mentioned that interception requests are not accompanied by any supporting materials in most cases; Russian courts generally do not request the interception agency to submit such materials and they do not verify whether there is a “reasonable suspicion” against the person concerned or verify that the requested surveillance is necessary and proportional. See id. at paras. 258-63.

The Court further observed that the OSAA did not contain requirements concerning the content of the request for interception or of the interception authorization and, as a result, Russian courts sometimes approved surveillance without identifying a specific person or telephone number to be tapped. Rather, they authorized interception of all telephone communications in the area where a criminal act was allegedly committed and did not limit the duration of the interception. The Court also expressed its concern that the OSAA permits the interception of communications without prior judicial authorization for up to 48 hours, and does not include sufficient safeguards to ensure that it was used sparingly and only in duly justified cases. See id. at paras. 264-67.

The Court observed that Russian secret surveillance scheme contradicted the European Convention, which requires that supervisory bodies shall be independent, open to public scrutiny, and vested with sufficient powers and competence to exercise effective and continuous control over the surveillance. The Court found that Russian security services and police had the technical means to intercept any communications without obtaining prior judicial authorization, creating ample opportunity for abuse of power. Moreover, the supervising authority had no opportunity to discover interception carried out without judicial authorization, because Order 70 prohibits logging or recording such interception. Further, judicial oversight is limited to the initial authorization of interceptions and subsequent supervision is entrusted to law enforcement and executive branch authorities. This was particularly troubling given prosecutors’ potential lack of independence from the executive, their lack of access to information about security services’ operations, and failure to publicly disclose information on surveillance measures. Lastly, the Court noted that the State did not submit any inspection reports or decisions by prosecutors to stop or remedy a detected breach of law, indicating that prosecutors’ supervision of secret surveillance measures is not effective in practice. Accordingly, the Court held that the prosecutors’ supervision of surveillance did not provide adequate and effective guarantees against abuse. See id. at paras. 269-85.

Assessing the issue of notification and access to effective remedies before national courts, the European Court observed that a person whose communications had been intercepted in Russia was not notified and would not learn about the surveillance unless that information was used in evidence in criminal proceedings or was the subject of an unauthorized government leak. According to the Court, this limited individuals’ ability to dispute the interception. Therefore, the Court found that the Russian law did not provide an effective remedy to a person who suspects that he or she has been subjected to secret surveillance. See id. at paras. 286-300.

Thus, the Court concluded that the Russian legal framework on interceptions of communications did not provide for adequate and effective guarantees against arbitrariness and the risk of abuse, and did not meet the “quality of law” requirement, and was incapable of limiting the “interference” to what is “necessary in a democratic society.” The Court held that this constituted a violation of Article 8 of the Convention. See id. at paras. 302-04.

The applicant also complained that he did not have an effective remedy for his complaint, as required by Article 13 of the European Convention. The Court considered that it was not necessary to examine this allegation separately because it was closely linked with the Article 8 violation. See id. at paras. 306-07.

Under Article 41, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by Roman Zakharov, and found Russia obliged to pay him 40,000 euros to cover his costs and expenses. See id. at paras. 309-16.

Related Jurisprudence

 The European Court has addressed the impact of surveillance on individuals’ right to privacy in previous cases. For example, in another case concerning Russia, the Court found that the inclusion of the applicant’s name in the “surveillance database” amounted to an interference with his private life because the database was governed by a ministerial order that had never been published or made accessible to the public. The Court held that the law lacked clarity concerning the scope and exercise of domestic authorities’ discretion to collect and store information on individuals’ private lives and did not contain minimum safeguards against abuse. See ECtHR, Shimovolos v. Russia, no. 30194/09, Judgment of 21 June 2011. To learn more about the jurisprudence of the European Court on protection of personal data, new technologies, and Russia, see the relevant factsheets.

For more information on the European Court of Human Rights and the European human rights system, visit IJRC’s Online Resource Hub.

AU-EU Meetings Emphasize Cooperation to Protect Human Rights

Participants in the Human Rights DialogueCredit: Delegation of the European Union to the Republic of Rwanda
Participants in the Human Rights DialogueCredit: Delegation of the European Union to the Republic of Rwanda

Participants in the Human Rights Dialogue
Credit: Delegation of the European Union to the Republic of Rwanda

In November 2015, representatives of African and European intergovernmental organizations and civil society gathered in Rwanda for the 11th African Union – European Union (AU-EU) Human Rights Dialogue, a platform for sharing experiences concerning human rights, democracy, and the rule of law. Participants in the Human Rights Dialogue, which was held in Kigali on November 24, 2015, included the Hon. Justice Augustino S. L. Ramadhani, President of the African Court on Human and Peoples’ Rights (AfCHPR); Hon. Madam Zainabu Kayitesi, Commissioner of the African Commission on Human and Peoples’ Rights (ACHPR); Ambassador Gary Quince, Head of the EU Delegation to the AU; Ambassador Michael Ryan, Head of the EU Delegation to Rwanda; and other AU and EU staff working on human rights issues. The outcome document summarizes previous and future areas of cooperation between the AU and EU, including protecting the freedom of expression, migrants’ rights, human rights and business, and the abolition of the death penalty. See European Union External Action Service, Joint Communiqué. Read more

Turkish YouTube Ban Breached Freedom of Expression, European Court Holds

European Court of Human RightsCredit: Alfredovic at Italian Wikipedia

enteteOn December 1, 2015, the European Court of Human Rights (ECtHR) held that Turkey violated the right to freedom of expression by blocking access to YouTube, a widely-used video platform, from May 2008 to October 2010. See ECtHR, Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, Judgment of 1 December 2015 (available only in French). The application was lodged by three Turkish academics who claimed that they were active users of YouTube and that a Turkish court’s blanket ban violated their right to receive and impart information and ideas. The European Court observed that as a unique platform for citizen journalists, YouTube allowed users to access information on political and social matters that could not be readily obtained elsewhere and that by blocking the access to this platform, Turkey violated the applicants’ rights under Article 10 (right to freedom of expression) of the European Convention on Human Rights (Convention). [ECtHR Press Release]

Since the ban at issue was lifted, on several occasions Turkish authorities have again blocked YouTube and other sites, including Twitter, pursuant to a newer law that allows such bans to be put in place without a court order. [Financial Times; The Guardian]

Read more

« Older Entries