Category Archives: regional human rights protection

ECtHR: Failure to Provide Psychiatric Treatment Rendered Life Sentence Irreducible

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Courtroom_European_Court_of_Human_Rights_02

European Court of Human Rights
Credit: Adrian Grycuk

On April 26, 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) found that a life sentence was de facto irreducible because the applicant was denied medical treatment that could have positively affected his pardon requests and, consequently, held that the Netherlands violated the prohibition of torture and cruel, inhuman, or degrading treatment under Article 3 of the European Convention on Human Rights (ECHR), See ECtHR, Murray v. the Netherlands [GC], no. 10511/10 ECHR 2016, Judgment of 26 April 2016, para. 127. The applicant was convicted of murder and sentenced to life imprisonment in 1979. Id. at para. 15. The judgment of the domestic court of first instance included a psychiatrist report which stated that, while he was criminally liable for the act, he suffered from a “pathological disturbance” and advised that he undergo treatment to avoid relapsing and committing further crimes. Id. at para. 12. Before the European Court, he argued that because he never received such treatment, the life sentence was irreducible and he was denied any hope of release. Id. at para. 87. In its 2013 judgment, a chamber of the ECtHR found no violation of Article 3 because the applicant’s case had been reviewed, providing a prospect of release, and the State may refuse to pardon a prisoner where that person poses a danger to society. See ECtHR, Murray v. the Netherlands, no. 10511/10, Judgment of 10 December 2013, at paras. 54-59.

The Court’s decision expands on the precedent of Vinter and Others v. the United Kingdom, in which it held that whole-life sentences without possibility of review violate Article 3, to consider the duty to provide an opportunity for rehabilitation in the context of a prisoner in need of treatment for mental health problems. See ECtHR, Vinter and Others v. the United Kingdom [GC] nos. 66069/09, 130/10 and 3896/10, Judgment of 9 July 2013. The decision in Vinter, among others, has given rise to tensions in the United Kingdom, with some politicians calling for measures to limit the ECtHR’s authority in the country’s legal system. [BBC] Read more

Inter-American Court: Colombian Same-Sex Partners Entitled to Equal Social Benefits

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25150862565_ecf6f6f99d_o (1)

The Inter-American Court of Human Rights in session
Credit: Inter-American Court of Human Rights

The Inter-American Court of Human Rights has condemned Columbia’s failure to provide a gay man with equal access to public benefits following the death of his partner, as prohibited discrimination on the basis of sexual orientation. See I/A Court H.R., Duque v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 February 2016. Series C No. 310 (Spanish only). This case involved a petitioner, Ángel Alberto Duque, who alleged that he was denied the right to a survivor’s pension due to his sexual orientation. [IACHR Press Release] The Inter-American Commission on Human Rights (IACHR) submitted the case to the Court’s jurisdiction on October 14, 2014 after Colombia failed to comply with its merits report recommendations. [IACHR Press Release] The Court held that Colombia had violated the petitioner’s right to equality and non-discrimination as provided for in the American Convention on Human Rights (American Convention). See Duque v. Colombia. Judgment of 26 February 2016. para. 62. Duque’s case is the first time the Court has ruled on the issues of discrimination and access to social rights as they pertain to same-sex couples. [IACHR Press Release] Read more

African Commission Adopts Draft Protocol on Persons with Disabilities’ Rights

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24782070629_c8c6f74151_o

The 19th Extraordinary Session of the African Commission on Human and Peoples’ Rights
Credit: ACHPR

The African Commission on Human and Peoples’ Rights (ACHPR) has adopted a draft protocol on the rights of persons with disabilities, intended to complement the African Charter on Human and Peoples’ Rights and address continued exclusion, harmful practices, and discrimination affecting those with disabilities, especially women, children, and the elderly. The protocol, adopted during the ACHPR’s 19th Extraordinary Session, is the culmination of the African Union’s focus on the rights of persons with disabilities, which began in 1999 with the declaration of the African decade for persons with disabilities and the creation of a Working Group tasked with drafting this new instrument. The protocol guarantees equal protection of economic, social, cultural, civil, and political rights to individuals with “physical, mental, intellectual, developmental or sensory impairments” and will require States parties to implement affirmative actions to advance their equality. See Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (adopted 25 February 2016), art. 1(g).

The intent in drafting the protocol was to lay out the rights of persons with disabilities in an continental context, drawing from the United Nations Convention on the Rights of Persons with Disabilities but also addressing additional issues specific to Africa. The draft protocol, accordingly, addresses issues faced by persons with disabilities in Africa, such as increased rates of poverty; systemic discrimination; and risk of violence and abuse, particularly for those with albinism and women and girls with disabilities. Id. at preamble. The protocol also seeks to provide a foundation from which Member States can formulate or adjust legislation impacting persons with disabilities. Id. The ACHPR has in the past found State law on persons with disabilities incompatible with international norms. See ACommHPR, Purohit and Moore v. Gambia, Communication No. 241/01, 33rd Ordinary Session, 29 May 2003. Read more

ECtHR: No Violation in Police Killing of London Bombing Suspect

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Courtroom_European_Court_of_Human_Rights_03

European Court of Human Rights
Credit: Adrian Grycuk via Wikimedia Commons

On March 30, 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) held that the United Kingdom had fulfilled its procedural obligations under Article 2 of the European Convention on Human Rights (ECHR) to conduct an effective investigation into the killing of Jean Charles de Menezes by government agents, who wrongly suspected him of terrorist activity. See ECtHR, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, ECHR 2016, Judgment of 30 March 2016, paras. 16, 29-37, 286. The police officers were investigating the July 2005 suicide bombings in the London Underground when they mistook de Menezes for a known suspect because he used a doorway that also led to the apartment building where the suspect lived. Id. at paras. 29-30. None of the officers involved were prosecuted for the killing.

The procedural obligation under Article 2, which the Court held that the United Kingdom had met, requires an effective investigation that is sufficient to determine the factual circumstances around the incident, including whether the use of force was justified under those circumstances, and subsequent punishment of the agents responsible when appropriate. Id. at para. 286. The Court held, setting a precedent for future cases involving State authorities’ use of lethal force, that simply because it was State authorities that used lethal force does not require prosecution of those individuals if the evidence suggests that a conviction is unlikely. Id. at para. 272-73. Read more

April 2016: African, Inter-American, and Universal Human Rights Sessions

Flags of the 193 UN Member States outside the Palais des NationsCredit: UN Photo / Jean-Marc Ferré
Flags of the 193 UN Member States outside the Palais des NationsCredit: UN Photo / Jean-Marc Ferré

Flags of the 193 UN Member States outside the Palais des Nations
Credit: UN Photo/Jean-Marc Ferré

During the month of April 2016, six supranational human rights bodies will be in session. These include three regional human rights monitoring bodies: the Inter-American Court on Human Rights (IACtHR), the Inter-American Commission on Human Rights (IACHR), and the African Commission on Human and Peoples’ Rights (ACHPR). Each will consider pending cases and human rights topics of concern in their respective regions, including through public discussions or hearings. Additionally, four United Nations mechanisms will meet in Geneva, Switzerland: the Committee on the Rights of Persons with Disabilities (CRPD), the Committee on Migrant Workers (CMW), the Committee Against Torture (CAT), and the Committee on the Elimination of Racial Discrimination (CERD). The UN treaty bodies in session will review States’ implementation of the respective treaties, consider individual complaints, and discuss best practices. Video of the public portions of these sessions is available on UN Treaty Body Webcast or UN Web TV. In addition, four experts appointed by the UN Human Rights Council will carry out country visits to assess the human rights situation relevant to children, housing, persons with disabilities, and health in Georgia, India, Zambia, and Algeria, respectively. Read more

African Court Holds Tanzania Responsible for Providing Legal Assistance to Defendants

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african court- onyango

Hon. Justice Fatsah Ouguergouz reads judgment in Onyango & Others v. Tanzania
Credit: AfCHPR

The African Court on Human and Peoples’ Rights (African Court) recently handed down its sixth merits judgment, in Onyango and Others v. Tanzania, a case concerning allegedly excessive duration of criminal proceedings brought against 10 Kenyans following their extralegal rendition to Tanzania. The petitioners are citizens of Kenya who were kidnapped by government agents tortured, and forcibly removed from Mozambique to Tanzania, two countries without an extradition agreement, where they were incarcerated and charged with murder and armed robbery of a Tanzanian bank. See AfCHPR, Onyango and Others v. Tanzania, App. No. 006/2013, Judgment of 18 March 2016, para. 2.

The Court held that the State violated the applicants’ rights to be tried within a reasonable time and to be defended by counsel under articles 7(1)(d) and 7(1)(c), respectively, of the African Charter on Human and Peoples’ Rights (African Charter). See AfCHPR, Onyango and Others v. Tanzania, App. No. 006/2013. The judges in the case, the Court held, have a duty to restrict the proceedings to a reasonable time, and the applicants, the Court continued to find, have a right to legal aid throughout the trial due to the severity of the case. Id. at paras. 153-55, 181. While the right to legal aid and the right to be tried within a reasonable period of time have both been addressed by the African Commission on Human and Peoples’ Rights, this is the first time that the African Court has ruled on alleged Article 7(c) and (d) violations. See, e.g. ACommHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) vs. Burundi, Communication No. 231/99, 28th Ordinary Session, 6 November 2000; ACommHPR, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, Communication No. 301/05, 52nd Ordinary Session, 12 October 2013. Video is available of the African Court’s delivery of its judgment in Onyango and Others v. Tanzania. Read more

East African Community Welcomes Sixth State, South Sudan

Members of the Sudan Peoples' Liberation Movement (SPLM) arrive at the rally in Juba, as South Sudan prepares for its independence.
Members of the Sudan Peoples' Liberation Movement (SPLM) arrive at the rally in Juba, as South Sudan prepares for its independence.

South Sudan celebrates independence
UN Photo/Paul Banks

On March 9, 2016 the East African Legislative Assembly, the legislative arm of the East African Community (EAC), congratulated South Sudan on its admission into the economic community after passing a resolution to admit the State into the EAC. [EAC Press Release] In order to be accepted as the sixth Member State, South Sudan had to demonstrate its conformity to the EAC’s membership criteria and engage in negotiations with the other five members: Kenya, Tanzania, Burundi, Rwanda, and Uganda. See Treaty for the Establishment of the East African Community, art. 3(3).

Membership in the Community also brings South Sudan within the jurisdiction of the East African Court of Justice (EACJ). See Treaty for the Establishment of the East African Community (EAC Treaty), art. 27. While the EACJ is not explicitly mandated to hear human rights complaints, the EAC Treaty, which the court enforces, details the Community’s core principles of good governance, rule of law, and commitment to universally-recognized human rights; these provisions have provided a basis for legal claims regarding human rights violations, which could now be brought against the South Sudanese government once it accedes to the EAC Treaty. See Id. at art. 6(d) and 7(2). Read more

Rwanda Withdraws Access to African Court for Individuals and NGOs

Credit: Wouter Engler via Wikimedia Commons
Credit: Wouter Engler via Wikimedia Commons

Credit: Wouter Engler via Wikimedia Commons

The government of Rwanda has announced it will no longer allow individuals and non-governmental organizations to directly file complaints against it with the African Court on Human and Peoples’ Rights (AfCHPR). [Ministry of Justice Press Release] The decision comes as the African Court is set to decide a claim against Rwanda by a leading opposition politician, Victoire Ingabire, who alleges her imprisonment for genocide denial was unfair and politically motivated. [AfCHPR Press Release; HRW] Rwanda deposited the withdrawal on February 29, just over three years after it first deposited the declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights. The government asserts that the withdrawal is intended to prevent exploitation of the individual complaint procedure by criminals, particularly individuals who took part in the 1994 genocide and have subsequently fled the country. [Ministry of Justice Press Release] The Protocol does not outline a withdrawal process, and the Court has yet to make a decision on the validity of the withdrawal or how it will affect pending cases against Rwanda. Only eight African Union (AU) countries have submitted declarations allowing individual complaints to the Court, and Rwanda is the only State to withdraw, potentially reducing the number of AU countries where individuals and NGOs have direct access to the Court to seven. Read more

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