Supreme Court of India Declares Privacy Is a Fundamental Right

Supreme Court of India
Credit: Legaleagle86 via Wikimedia Commons

At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.

According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5. Read more

ECtHR: Romania Violated Privacy Rights After Employer Monitored Instant Messages

European Court of Human Rights
Credit: CherryX via Wikimedia Commons

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled that a private company’s decision to dismiss an employee, after monitoring and accessing his instant messages sent from the workplace, violated the employee’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights. See ECtHR, Bărbulescu v. Romania [GC], no. 61496/08, ECHR 2017, Judgment of 5 September 2017, para. 141. The ECtHR held that Romanian authorities did not protect Bogdan Mihai Bărbulescu’s right to private life because the Romanian courts did not adequately balance Bărbulescu’s interest in privacy and the employer’s interest in monitoring communications sent from the workplace. The national courts, the European Court found, did not sufficiently assess the relevant factors of whether the employer gave prior notice to the employee that communications may be monitored; whether there was a reasonable justification for monitoring the employee’s communications; whether there were less intrusive measures available to the employer to achieve the same end; and the necessity of the disciplinary action taken against the employee. See id. at para. 124, 133, 139-41. This case adds to the ECtHR’s developing jurisprudence on the balance between the competing interests of an employee’s right to privacy and a private employer’s right to monitor communications; two previous cases determined that the State has a positive obligation to protect the employee’s right to privacy of telephone communications, email, and internet use that originates at work. See ECtHR, Halford v. the United Kingdom, no. 20605/92, ECHR 1997, Judgment of 25 June 1997; ECtHR, Copland v. the United Kingdom, no. 62617/00, ECHR 2007, Judgment of 3 April 20017. Read more

Guatemalan Court Blocks President’s Attempt to Expel Anticorruption Panel Leader

CICIG Commissioner Iván Velásquez speaks at the UN Embassy in Guatemala
Credit: US Embassy via Wikimedia Commons

On August 29, Guatemala’s Constitutional Court issued a temporary injunction to block President Jimmy Morales’ expulsion order against Iván Velásquez, head of a United Nations anticorruption panel, who just days earlier announced his intent to investigate Morales for alleged campaign finance violations in 2015. [Al Jazeera; New York Times] The UN International Committee against Impunity in Guatemala (known by its Spanish acronym CICIG) was formed 10 years ago to address the pervasive corruption problems in Guatemala. [Al Jazeera] In furtherance of its mission, CICIG currently seeks to strip Morales of his official immunity so that he may face a campaign finance investigation. [Washington Post] Morales announced his decision to expel Velásquez on August 27, citing “the interests of the Guatemalan people” and his aim to “strengthen[] . . . the rule of law and our institutions.” [Al Jazeera] The expulsion order sparked protests in defense of Velásquez and continues to draw international criticism. [New York Times] Representatives from the United Nations, the Inter-American Commission on Human Rights (IACHR), and the European Union (EU) have condemned Morales’ actions as beyond the scope of his authority and an unjustified interference with the work of CICIG. [UN News Centre; OHCHR Press Release; IACHR Press Release (in Spanish); EU Press Release] Read more

News Clips- September 1, 2017

Journalists are briefed at the UN on the situation in Yemen
Credit: UN Photo/Manuel Elias

Civil Society

  • On Friday, the German government shut down a left-wing extremist website connected to violence at the Group of 20 summit meeting in July. [New York Times]
  • On Wednesday, human rights groups called for the establishment of an independent inquiry into alleged abuses taking place in Yemen. [Guardian]

Corruption

  • On Sunday, the Constitutional Court in Guatemala issued a temporary injunction blocking President Jimmy Morales’ order to expel Iván Velásquez, the head of the United Nations International Committee against Impunity in Guatemala. [Al Jazeera]
  • This week, it was reported that the government of Mexico has allegedly made ongoing attempts to silence a prominent advocate who has spoken against corruption and impunity. [New York Times]

Violence & Humanitarian Crises

  • On Friday, violent clashes occurred in northern India in response to a spiritual leader’s conviction of rape; at least 30 people have been killed. [New York Times]
  • On Friday, gunmen, claimed by ISIS, attacked a mosque in Kabul, Afghanistan killing at least 20 people. [New York Times]
  • On Wednesday, the United Nations Security Council renewed the peacekeeping mission in Lebanon for one year in response to concerns about Hezbollah near Israel’s border. [New York Times]
  • On Thursday, the Prime Minister of Iraq, Haider al-Abadi, announced that Tal Afar is free from ISIS after an 11-day battle. [New York Times]

Migrants, Refugees, & Asylum Seekers

  • Last week, the International Organization for Migration condemned Facebook for failing to monitor traffickers using the site to broadcast abuse of migrants and using the videos to seek ransom from victims’ family members. [Reuters]
  • On Thursday, the United Nations representatives reported that more than 27,400 Rohingya migrants have fled to Bangladesh from Myanmar since August 25. [Reuters]
  • On Monday, leaders from France, Germany, Italy, Spain, Chad, and Niger agreed to work together on aid and border control to stem the influx of migrants. [Guardian]

ICC Orders Reparations for Destruction of Timbuktu Cultural Sites

The former site of a mausoleum in Timbuktu that was destroyed in 2012
Credit: UN Photo/Marco Dormino

On August 17, 2017, the International Criminal Court (ICC) issued a Reparations Order in the case of Ahmad Al Faqi Al Mahdi, who in September 2016, upon pleading guilty to the destruction of 10 religious and historic sites in Timbuktu, Mali, was sentenced to nine years’ imprisonment. [ICC Press Release; IJRC] In its Reparations Order, Trial Chamber VIII of the ICC found Al Mahdi liable for 2.7 million euros (or approximately 3.18 million USD) in both individual and collective reparations for the community affected by the 2012 attacks, which occurred in the context of Mali’s internal armed conflict. [ICC Press Release] The Court, emphasizing the cultural and sentimental value of the destroyed property, ordered reparations for three categories of harm: damage to the targeted buildings, resulting economic loss, and moral harm. [ICC Press Release] The reparations are designed to rehabilitate the attacked sites, address the community’s financial losses, and potentially fund symbolic measures, such as memorials, to serve as public recognition of the harms incurred by the Timbuktu community. [ICC Press Release] Given Al Mahdi’s indigence, the Court encourages the Trust Fund for Victims (TFV), an agency that will implement the order, to supplement the reparations to the extent possible. [ICC Press Release; Guardian] Read more

UN Experts: Italy’s Rules for NGOs May Result in Death for Migrants

Refugees arrive in Europe
Credit: Ggia

Three United Nations Special Rapporteurs issued a warning last week in response to Italy’s new code of conduct that would limit the ability of signatory nongovernmental organizations (NGOs) to rescue refugees and migrants at sea; the Special Rapporteurs cautioned that it threatens lives and breaches international standards. [OHCHR Press Release; UN News Centre] Italy drafted the code of conduct, with support from the European Commission – the executive organ of the European Union – seeking the signature of NGOs engaging in rescue missions in the Mediterranean Sea. [European Commission Press Release] The code of conduct aims to limit the loss of life and migratory flows from North Africa, but human rights organizations and UN experts have criticized it because of the counter effect that it is projected to have on the lives of migrants and refugees. [OHCHR Press Release; HRW; Deutsche Welle; UN News Centre] Critics find particularly concerning the provisions that bar NGOs from entering Libyan waters to undertake rescues, ban NGOs from using light signals to communicate with vessels at imminent risk of sinking, and force NGOs to return to port to disembark rescued people, rather than transferring them to other vessels if they need to remain at sea to rescue others. [HRW] Italy and the other EU Member States are obligated to protect, respect, and fulfill the right to life for all, including migrants, under Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). Read more

Violence Following Kenya’s Presidential Election Prompts International Responses

UN Secretary General António Guterres meets with President Uhuru Kenyatta
Credit: UN Photo/Antonio Fiorente

The United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, last week urged Kenyan leaders to “calm a volatile political climate” while ensuring the right to peaceful assembly; his statement followed reports of the use of live ammunition against protesters in the wake of President Uhuru Kenyatta’s August 8th re-election. Reports indicate 24 people died due to the post-election violence. [Washington PostOHCHR Press Release: Zeid] In addition to Zeid’s statements, the UN Secretary General António Guterres, and the African Commission on Human and Peoples’ Rights (ACHPR) also responded to the post-election violence. The Secretary General called on leaders to settle disputes over the election through the appropriate institutions and to urge others to refrain from violence. [UNSG Press Release] The African Commission called for increased transparency of voter tallying, the avoidance of acts or statements inciting violence, and the use of legal avenues to address election related disputes. [ACHPR Press Release] While it was not responding directly to the post-election violence, the East African Community (EAC) Election Observer Mission to the Republic of Kenya (EAC Mission) did encourage anyone dissatisfied with the results to use the proper channels to challenge the outcome. [EAC Press Release] Despite the reports of post-election violence, Zeid, Guterres, the African Commission, and the EAC Mission recognized and commended Kenya’s peaceful voting process before the violence. [ACommHPR Press Release; EAC Press Release; OHCHR Press Release: Zeid; UNSG Press Release]

Kenya has a history of election related violence. Notably, during its 2007 elections, inter-ethnic clashes and police violence resulted in 1,100 people killed and 650,000 people displaced. [HRW: 2013] As a State party to the African Charter on Human and Peoples’ Rights, as well as other international human rights treaties, Kenya has an obligation to protect, respect, and fulfill the rights to life, freedom of expression, peaceful assembly, and participation in public affairs under articles 4, 9, 11, and 13, respectively. Read more

News Clips- August 18, 2017

The UN Security Council met this week to discuss peace and security on the African continent.
Credit: UN Photo/Manuel Elias

Civil Society

  • On Thursday, three young activists in Hong Kong, China were sentenced to six to eight months in prison for their participation in the 2014 Umbrella Movement protests. [Washington Post]
  • On Wednesday, the president of the Philippines encouraged police officers to shoot activists who obstruct justice. [Guardian]
  • Last week, Amnesty International reported that at least 66 people detained during protests in Morocco reported being subject to torture and ill-treatment. [AI]

Violence & Humanitarian Crises

  • On Thursday, at least 13 people were killed when a van drove into a crowd in Barcelona, Spain. [Guardian]
  • On Wednesday, police found mass graves containing 36 bodies of victims of a militant attack on a village in Afghanistan; the attack, claimed by the Islamic State, left at least 62 people dead. [Reuters]
  • On Monday, the United Nations reported seven people killed, and seven wounded, during an attack on UN headquarters in Timbuktu, Mali. [Washington Post]
  • Over the weekend, gunmen attacked a restaurant in Burkina Faso, killing almost 20 people. [UN News Centre]

Migrants, Refugees, & Asylum Seekers

Politics

  • On Wednesday, Lebanon repealed a law that prevented the criminal prosecution of rapists who subsequently married their victims. [Guardian]
  • On Monday, the government of Canada announced its core objectives, including protections based on gender and for indigenous peoples’ rights, for the pending North American Free Trade Agreement negotiations. [New York Times]
  • On Tuesday, the president of the Republic of Guinea Bissau, H.E. José Mário Vaz, pledged to ratify the Protocol establishing the African Court on Human and Peoples’ Rights. [AfCHPR Press Release]
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