Hungarian Yearbook of International Law and European Law 2015 9789462744523, 9789462366374

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Hungarian Yearbook of International Law and European Law 2015

Hungarian Year bo ok of International Law and European Law 2015

M a r c e l S z a b ó ( E d i t o r - i n - C h i e f ) , R é k a Va r g a a n d Petra Lea Láncos (Eds.)

Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: 1-800-944-6190 (toll-free) Fax: +1 503 280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag.

ISBN 978-94-6236-637-4 ISBN 978-94-6274-452-3 (E-book) © 2016 The authors | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Table of Contents Contributors

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Editor’s Note

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Árpád Passed Away … Personal Thoughts on a Quiet But Efficient Hungarian International Lawyer – in Memoriam Árpád Prandler (1930-2014) Péter Kovács

1

Part I Thematic Part: International Humanitarian Law, International Criminal Law and Human Rights Law 1

The Development of the International Human Rights Law with Specific Regard to the European Human Rights System Elisabeth Kardos Kaponyi The European Court of Human Rights and Social Rights – Emerging Trends in Jurisprudence? Christina Binder and Thomas Schobesberger

7

2

The Comparative Approach of the European Court of Human Rights – Shared Criticism with the United States Supreme Court Lucrezia Palandri

51

3

Individual Complaints within the Field of Economic, Social and Cultural Rights – Pro and Contra Arguments Gábor Kecskés

71

4

Article 27 of the ICCPR in Practice, with Special Regard to the Protection of the Roma Minority Anikó Szalai

93

5

When Environmental Protection Meets Human Rights – In the Wake of the Prestige Aniko Raisz and Eszter Lilla Seres

115

6

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Table of Contents

7

The UN Watercourses Convention, with Special Regard to the Environmental Provisions Ágnes Bujdos 8 ICTY and Provisional Release: The Case of Vojislav Šešelj Snežana Trifunovska Biszku-Case Reloaded: International Law Obligations and Lacuna in Compliance with Respect to Communist Crimes Réka Varga

151

167

9

World War I and the Appearance of Aerial Warfare: A Lacuna in the Texture of International Law? Zsuzsanna Csapó

191

10

A Five-Step Legal Assessment in the Joint Targeting Process – An Overview Károly Végh

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11

Experiences in the Application of NCRS Compatible National Crisis Response Measures’ System in Connection with the Ukrainian Crisis László Keszely

233

12

257

Part II Forum: The XY Case 13

The Case of X.Y. v. Hungary – A Judgment of the European Court of Human Rights on Pre-Trial Detention Eszter Kirs and Balázs M. Tóth The Right to Liberty and Security in Practice – Focusing on Application No. 43888/08 and the Latest Case Law of the ECHR Ádám Békés

265

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279

Part III Developments in International Law 15 Crimean Secession in International Law William R. Slomanson

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Table of Contents

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Koskenniemi and the International Legal Argument as Founded in the Law’s Ontology Csaba Varga Rethinking the Dualism of Regionalism vs. Universalism in the Light of the Sub-Saharan Experience with the Regulation of Foreign Investments Francesco Seatzu and Paolo Vargiu

331

17

How Global Constitutionalism Is Related to Domestic Constitutional Conflicts? Ielyzaveta Lvova

357

18

The Definition of the Right to Privacy in the United States of America and Europe Veronika Szeghalmi

383

19

The Use of Drones for Cross-Border Law Enforcement and Military Purposes in Another State’s Sovereign Airspace: A Legal Analysis Martha Bradley and Annelize Nienaber

397

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411

Part IV Developments in European Law 21

The Concept of Autonomy of EU Law from the Comparative Perspective of International Law and the Legal Systems of Member States Tamás Molnár

433

22 The Concept of Legal Aid in the Most Recent Case Law of ECJ Ágnes Váradi

461

23 Banking Union: Why Opting Out Is a Viable Alternative Péter Fáykiss, Dániel Papp and Anikó Szombati

479

24 Victims’ Rights Developments in the EU Petra Bárd and Andrea Borbíró

495

25

Linguistic Diversity Meets the Free Movement of Workers: The Las Case Petra Lea Láncos

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Table of Contents Part V Hungarian State Practice 26

The Most Important Developments in Common Foreign and Security Policy Since 2004 from Hungarian Perspective Károly Grúber and Csaba Törő 27 The Practical Application of Restraining Orders Erzsébet Tamási and Orsolya Bolyky Hungarian Experiences and Regulations Regarding the Recovery of State Aid That Are Incompatible with the Internal Market Péter Staviczky

533

551

28

The Constitutional Court’s Decision on the Compatibility of the Hungarian Statelessness Determination Procedure with International Law Tamás Molnár

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29

Whose Burden Is It Actually? – The Implementation and Application of the EU Rules on the ‘Burden of Proof’ in Employment Discrimination Cases in Hungarian Law Márton Leó Zaccaria

593

30

603

Part VI Review of Hungarian and International Scholarly Literature 31 Vanda Lamm: Compulsory Jurisdiction in International Law Gábor Kardos How to Put an End to Impunity in International Criminal Law? – Jurisdiction of the ICC Nikolett Papp

629

32

Review of the Monograph on Nationality in Relation to the Succession of States Adrienn Becánics

633

33

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Table of Contents

34

Review of the Monograph on ‘The Effect of Armed Conflicts on International Treaties’ Zsófia Eszter Kémeri A Review of the Monograph on the Challenges of Domestic Prosecution of War Crimes with Special Attention to Criminal Justice Guarantees Zsuzsanna Miszti-Blasiusné Szabó

641

35

About the Monograph on Language Policy and Linguistic Diversity in the European Union Sándor Szemesi

645

36

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649

Contributors Chairman of the Editorial Board: Péter Kovács (International Criminal Court) Members of the Editorial Board: László Blutman (University of Szeged) Laura Gyeney (Pázmány Péter Catholic University, Budapest) András Jakab (Hungarian Academy of Sciences) Gábor Kardos (Eötvös Loránd University, Budapest) Eszter Kirs (University of Miskolc) Judit Lévayné Fazekas (Széchenyi István University, Győr) András Osztovits (Károli Gáspár University of the Reformed Church, Budapest; Curia of Hungary) Gábor Sulyok (Széchenyi István University, Győr) Elisabeth Sándor-Szalay (Office of the Commissioner for Fundamental Rights) Ernő Várnay (University of Debrecen) László Milassin (Széchenyi István University, Győr) Zsuzsanna Horváth (University of Pécs) Péter Darák (Curia of Hungary) Editor-in-Chief: Marcel Szabó (Pázmány Péter Catholic University, Budapest; Office of the Commissioner for Fundamental Rights) Editors: Petra Lea Láncos (Pázmány Péter Catholic University, Budapest) Réka Varga (Pázmány Péter Catholic University, Budapest) Editorial assistants: Kinga Debisso (Office of the Commissioner for Fundamental Rights) Balázs Tárnok (Pázmány Péter Catholic University, Budapest) Peer Reviewers: Piet Hein van Kempen (Radboud University Nijmegen) David Turns (Cranfield University) Maja Smrkolj (European Court of Human Rights, Lille Catholic University)

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Contributors

Réka Somssich (Eötvös Lóránd University, Budapest) Tamás Gyulavári (Péter Pázmány Catholic University, Budapest) Katja Ziegler (University of Leicester) Linda Murnane (Special Tribunal for Lebanon) Christoph Sobotta (Chambers of Advocate General Kokott, Court of Justice of the European Union) Gyula Bándi (Péter Pázmány Catholic University, Budapest) Stephen C. McCaffrey (University of the Pacific) Helen O’Nions (Nottingham Trent University) Chris De Cock (Ministry of Defence, Belgium) Judit Tóth (University of Szeged)

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Editor’s Note Last year, the 2014 edition of the Yearbook revolved around the issues of citizenship prompted by the developments taking place in Ukraine. Unfortunately, recent events in this country continue to give food for legal thought. This year’s volume is centred on the issues of international humanitarian law, international criminal law and human rights law. All these fields of law have seen anniversaries in the past years: the 60th anniversary of the entry into force of the European Convention on Human Rights in 2013, the 100th anniversary of the beginning of the first World War and the 150th anniversary of the first Geneva Convention in 2014 and various other anniversaries are all important landmarks to the development of international humanitarian and human rights law. Both human rights law and international humanitarian law have gained ever increasing significance. The development of human rights law has resulted in the diversification of human rights and a greater emphasis on third generation rights. This presents a challenge to both practitioners and academics on how to interpret these rights, how to enforce them and how international mechanisms work. International humanitarian law and international criminal law have similarly undergone great developments; the challenges of their application and the changed circumstances in which they are applied require an ongoing debate on how they provide answers to new demands and challenges. The thematic part is therefore divided into two fields. The section on human rights law starts with an overview by Professor Kardos Kaponyi of the development of human rights law and its European institutions, followed by the excellent piece co-authored by Professor Christina Binder on the European Court of Human Rights and its jurisprudence on social rights. Subsequent articles deal with the European Court of Human Rights and specific segments of the human rights system: economic and social rights, minority rights and environmental law. The international criminal law and international humanitarian law section is opened by a critical analysis of the ICTY’s jurisprudence on provisional release through the examination of the Šešelj case. An analysis follows of Hungary’s challenge of dealing with communist crimes as international crimes through the introduction of the new developments of the Biszku-case. Turning to international humanitarian law, after an excellent historical introduction of the emergence of aerial warfare in World War I and the challenges of relevant legal regulations, two actual topics follow: one on targeting process and the legal assessments throughout, and another one on National Crisis Response Measures and the experiences with respect to the conflict in the Ukraine. Beyond the thematic part, the third volume of the Yearbook focuses on current developments in the field of international law and European law – including analysis of current

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Editor’s Note

questions, such as the Crimean secession under international law by Professor Slomanson –, as well as the latest developments in Hungarian state practice. The Forum part concentrates on the European Court of Human Rights’ judgment on pre-trial detention. Don’t forget to check out the book reviews to see what Hungarian scholarly literature had to offer this year. The year 2014 started with a great loss for the Hungarian international law community. Ad litem judge (ICTY) Árpád Prandler, former Ambassador, Head of the International Law Department of the Hungarian Ministry of Foreign Affairs, Director and Deputy to the United Nations Under-Secretary-General for Disarmament Affairs, Chairman of the Sixth (Legal) Committee of the UN General Assembly, member of the International Humanitarian Fact-Finding Commission, Board member of the Hungarian Red Cross, a dedicated practitioner and academic, and a great supporter of the younger generation, passed away at the beginning of the year. This volume is dedicated to him. As always, we wish you a good read until 2016 with the next volume of the Hungarian Yearbook of International Law and European Law. Réka Varga and Petra Lea Láncos

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Árpád Passed Away … Personal Thoughts on a Quiet But Efficient Hungarian International Lawyer – in Memoriam Árpád Prandler (1930-2014) Péter Kovács* Árpád Prandler [Photograph courtesy of the ICTY]

Who Is a Great International Lawyer? Is a great international lawyer the author of innumerable articles, regularly cited or referred to, or a habitual key-note speaker of conferences? Or is he the professional who participates at diplomatic conferences discussing and voting the others’ proposals or amending or even substituting them? The expert in the small ministerial rooms who signs hundreds of boring notes each week but who also thinks, planifies and settles small issues in order to implement his aim i.e. serve his country by trying to enlarge its possibilities? Or should we look for such a person among those who are accepted and appreciated by ministers, state-secretaries whether coming from the right or from the left, who will unmistakenly do everything in

*

Judge, International Criminal Court; Professor, Péter Pázmány Catholic University.

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Péter Kovács

their power when promotion of solemn ideas is hindered by simple legal obstacles which threaten the success of a diplomatic meeting? Or simply, is a great international lawyer a person who can multiply the small number of international legal practitioners, by teaching and helping them either in the department of international law of the Ministry of Foreign Affairs or in other departments or in embassies and missions? Árpád Prandler was all of them, a real, great practitioner assuming important posts; the most important of which was probably his under-secretary general position in the United Nations (1983-1990) where he took care of the portfolio of disarmement. He was also the secretary general of the 4th revision conference of the non proliferation treaty (1990). But he also participated in the negotiations on the Montego Bay Convention on the Law of the Sea as the chief of the Hungarian delegation and assumed the same function during the adoption of the Rome Statute of the International Criminal Court. He was an ad litem judge of the International Criminal Tribunal for ex-Yougoslavia and member of the Advisory Committee on Nominations in the International Criminal Court and also member of the Hungarian National Group of the Permanent Court of Arbitration. In Hungary, he was several times head of the department of international law and he was appointed ambassador. He was a dedicated supporter of the promotion of international humanitarian law and he organized or initiated several conferences, study programs for the IHL. Moreover, he did not forget about his academic ambitions: he found the time to make scientific researches and prepare and edit textbooks on international organizations. His doctoral dissertation and his book written on the Security Council was for a long time the material that international lawyers could not neglect when researching the first three decades of the United Nations. He was also professor at the Law Faculty of Eötvös Lóránd University and he also taught international relations at the University for Economic and Social Studies. Árpád Prandler was a person who was always there when work was to be done. He never referred to his previous UN under-secretary general’s responsibilities, he never gave orders, he just gave advice and invited colleagues to work with him. He never rebuted opinions expressed by younger colleagues, he simply asked whether the given legal position has a real chance to be adopted by partners. In the XXIst century, he was already one of the old chiefs of the diplomacy and a highly respected representative of the Hungarian perception of public international law. He never sought fame or distinction and wore his titles with modesty trying to avoid speaking about his own person concentrating rather on concrete international legal or diplomatic problems important for him.

2

Árpád Passed Away … Personal Thoughts on a Quiet But Efficient Hungarian International Lawyer – in Memoriam Árpád Prandler (1930-2014) He was a good colleague, a good boss, a real master and a good, always accessible professor, an elegant gentleman equipped with a silver top walking cane in the last years. He was a great international lawyer. Quiet, but efficient.

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Part I Thematic Part: International Humanitarian Law, International Criminal Law and Human Rights Law

1

The Development of the International Human Rights Law with Specific Regard to the European Human Rights System

Elisabeth Kardos Kaponyi*

1.1

The Development of the International Human Rights: The Beginnings

The idea that the rights of human beings should be elaborated and protected at international level has been gradually developed. The first international treaties concerning human rights were linked to the acceptance of freedom of religion and the abolition of slavery.1 The Treaty of Westphalia of 1648 contained a territorial redistribution, and also an ecclesiastical settlement. The Peace of Westphalia confirmed the Peace of Augsburg (1555), which had granted Lutherans religious tolerance in the empire and which had been rescinded by the Holy Roman emperor Ferdinand II in his Edict of Restitution (1629). Moreover, the peace settlement extended the Peace of Augsburg’s provisions for religious toleration to the Reformed Calvinist church, thus securing toleration for the three great religious communities of the empire – Roman Catholic, Lutheran, and Calvinist. Subsequently it became general that the peace treaties contained a special clause on freedom of religion.2 The international treaties on the abolition of slavery, namely the Treaty of Washington of 1862 and documents of the conferences in Brussels in 1867 and 1890, and in Berlin in 1885, the Convention of Saint-Germain-en-Laye of 1919 which revised the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890, affirmed their intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea. In 1924, a so-called Temporary Slave Commission was established with the responsibility for the worldwide exploration and appraisal of the existence of slavery. The Temporary Slave Commission found that the existence of slavery is interna-

* 1

2

Professor, Corvinus University of Budapest. See Abolishing Slavery and its Contemporary Forms David Weissbrodt and Anti-Slavery International, in Core International Law Against Slavery, Office of the United Nations High Commissioner for Human Rights, 2002, HR/PUB/02/4, pp. 3-4. www.ohchr.org/Documents/Publications/slaveryen.pdf [21-06-2015]. See more e.g. Randall Lesaffer: Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, Cambridge University Press, 2004.

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Elisabeth Kardos Kaponyi

tionally prevailing and encouraged the League of Nations to create a separate international convention, focusing on the slavery. The Slave Convention, aiming to prevent and suppress the slave trade, and to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms, was signed in Geneva in September 1926 and entered into force in 9 March 1927.3 This agreements were followed by a long line of international conventions, but the situation has unfortunately not fundamentally changed. Nowadays, we are speaking about the modern forms of slavery, about the trade, the ‘trafficking of human being’, but the phenomenon is the same.4 The international humanitarian law and the international protection of the minorities – in the sense of groups who by language, religion or race differed from the majority of the population – also significantly contributed to the internationalization of human rights. The origin of the international humanitarian law (IHL) – which protects persons who are not, or are no longer, directly engaged in hostilities, the wounded, shipwrecked, prisoners of war and civilians – is dating back to battle of Solferino in 1859.5 Henri Dunant, a Swiss citizen who witnessed the thousands of victims and wounded of the battle, proposed that nations should form relief societies to provide care for the wounded in wartime. A diplomatic conference in Geneva in 1864 adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, the First Geneva Convention. This was followed by three more ‘Geneva Conventions’ and its additional protocols which established the core body of international humanitarian treaty law.6 The Geneva Conventions have been ratified by a significant number of states, either one of both of the two 1977 Additional Protocols to the Geneva Conventions, illustrating the importance attached to this body of law.7 International humanitarian law seeks to uphold the principle of 3 4

5

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http://portal.unesco.org/culture/en/files/38440/12815475701Slavery_Convention [12-06-2015]. Art. 3, Para. (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.’ After the battle of Solferino in northern Italy in June 1859, Henri Dunant, published ‘Un Souvenir de Solférino’ [A Memory of Solferino]) in 1862, and decided to set up with his friends the International Committee for Aid to the Wounded. (Later the name changed to ‘The International Committee of the Red Cross’.) Henri Dunant (1828-1910) was, together with Frédéric Passy (France), the first Nobel Peace Prize Winner (1901). www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions [20-06-2015]. See more: Odello, Marco: Part A: Concepts and Theories: Chapter I. Fundamental Standards of Humanity: A Common Language of International Humanitarian Law and Human Rights Law, in International Humanitarian Law and Human Rights Law, Towards a New Merger in International Law, Edited by Roberta Arnold & Noëlle Quénivet, Martinus Nijhoff Publishers, Leiden, 2008, pp. 34-56. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), State Parties (174) State signatories (2). Protocol additional to

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The Development of the International Human Rights Law with Specific Regard to the European Human Rights System

humanity in armed conflicts, and in the Nicaragua case (1986) the International Court of Justice invoked general principles of humanitarian law based upon Article 3 common to the four Geneva Conventions.8 Over the past decade, the relationship between human rights law (HRL) and international humanitarian law (IHL) became closer and closer. Between these two areas of law there is an indubitable complementarity, they mutually co-interfere with each other. This co-interference certainly has a positive impact on their further development.9 In the aftermath of the World War I, peace treaties formulated a series of ‘minority clauses’.10 The expression ‘minorities’ became part of international law terminology during the era of the League of Nations, but there was no intention to define what a ‘minority’ means or to formulate which minorities constitute a people entitled to self-determination. The minority clauses of the peace treaties in 1900s formulated three categories of obligations. Firstly, these clauses guaranteed to peoples who belong to racial, religious or linguistic minorities to enjoy the same treatment and security in law and in fact as the other nationals, full and complete protection of life and liberty to all inhabitants of the country or region concerned. This type of clause guaranteed these rights without discrimination on the ground of birth, nationality, language, race or religion. The second category guaranteed that all nationals would be equal before the law and would enjoy the same civil and political rights, without distinction as to race, language or religion. This second type of clauses guaranteed the free use by any national of any language in private intercourse, in commerce, in religion, in the press or in publications of any kind, or at public meetings. Finally, these clauses provided for a series of special guarantees for nationals belonging to minorities, for instance concerning the use of their language and the right to establish their

the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), State Parties (168) State signatories (3). Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (8 December 2005) (Protocol III), State Parties (72) State signatories (24). 8 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. ICJ Rep. 1986, p. 14. www.icj-cij.org/docket/files/70/6503.pdf [20-06-2015]. 9 Ibid., 4. 10 Treaty of Versailles was signed between the Allied Powers and Germany on 28 June 1919, Treaty of SaintGermain-en-Laye was signed between the Allied Powers and the Republic of Austria on 10 September 1919). On 27 November 1919 Treaty of Neuilly-sur-Seine was signed between the Allied Powers and Bulgaria. Treaty of Trianon was signed on 4 June 1920, between the Allied Powers and Hungary. (This Treaty led to considerable damaging territorial losses for Hungary. Hungary lost over two-thirds of its territory, about two-thirds of its inhabitants under the Treaty and 4.3 million ethnic Hungarians.) The Treaty of Sèvres was signed on 10 August 1920 between the Ottoman Empire and Britain, France, and Italy. See more: International Encyclopedia of the First World War1914-1918-online, Edited by U. Daniel, P. Gatrell, O. Janz, H. Jones, J. Keene, A. Kramer & Bill Nasson, issued by Freie Universität Berlin, 2014, in Alan Sharp: The Paris Peace Conference and its Consequences, pp. 2-13. http://encyclopedia.1914-1918-online.net/pdf/1914-1918-Onlinethe_paris_peace_conference_and_its_consequences-2014-10-08.pdf [16-06-2015].

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Elisabeth Kardos Kaponyi own social and religious institutions.11 However, these peace treaties contained clauses that clearly described and guaranteed fundamental human rights to minorities, as the right to use their language, right to education, right of free expression on its own language, the realization of these rights fell far behind the expectations.12 Although, the protection of minorities did not disappear from international law, later the UN left the responsibility on the whole of resolving international disputes on the minority issues.13 Since the end of the World War I, there has been a growing belief that governments alone cannot safeguard human rights, and that these require international guarantees. This recognition has led to the creation of the International Labour Organization (hereafter ‘ILO’) 1919 as part of the Treaty of Versailles to reflect the belief that universal and lasting peace can be accomplished only if it is based on social justice. The idea that human rights considerations were important, was also an important motive. The driving forces for ILO’s creation arose from security, humanitarian, political and economic considerations. The protection of the working force was aimed at creating conditions for equal competition amongst states.14 The ILO has made significant efforts to build up minimum labour and social standards that would become international. The first international convention adopted was the ILO 1919 Hours of Work Convention (No. 1), establishing the eight-hour day and the six-day week in industry.15 The strength of the ILO is its standard-setting function. It draws its uniqueness from the constant search for a consensus between public authorities and the principal interested parties, namely employers and workers. The main topics covered by the ILO activities are employment and unemployment, various aspects of conditions of work, the employment of children and young persons, employment of 11 J.H. Burgers, The Road to San Francisco: ‘The Revival of the Human Rights Idea in the Twentieth Century’, Human Rights Quarterly, Vol. 14. 1992, p. 450. http://humanrightsinitiative.ucdavis.edu/files/2012/10/burgerroadtosf.pdf [16-06-2015]. 12 See more: Treaty of Peace between the Allied and Associated Powers and Hungary and Protocol and Declaration, Signed at Trianon June 4, 1920, Section VI Protection of Minorities, and Arts. 54-60. ‘[…] The Hungarian Government hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Art. 13 of the Covenant.’ http://wwi.lib. byu.edu/index.php/Treaty_of_Trianon [16-06-2015]. 13 See more: about the activity of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities that was established in 1947 with 12 members and renamed in 1999. Later, it was comprised of 26 independent experts in the field of human rights who are elected by the Human Rights Commission. The Sub Commission was often described by the scholars as a ‘think tank’ for the Commission on Human Rights. Pursuant to General Assembly Res. 60/251 of 15 March 2006 entitled ‘Human Rights Council’, all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights, including the Sub-Commission on the Promotion and Protection of Human Rights, were assumed, as of 19 June 2006, by the Human Rights Council. See: N. S. Rodly, Conceptual Problems in the Protection of Minorities: International Legal Developments, Human Rights Quarterly, Vol. 17, No. 1 1995, pp. 48-71. See: J. Pejic, Minority Rights in International Law, Human Right Quarterly, Vol. 19, No. 3 1997, pp. 666-685. 14 Under the auspice the ILO e.g. the International Slavery Convention, signed in Geneva on 25 September 1926, the conventions for the protection of refugees were adopted in 1933 and 1938. 15 http://training.itcilo.it/actrav_cdrom2/en/osh/legis/ilotot.htm [16-06-2015].

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The Development of the International Human Rights Law with Specific Regard to the European Human Rights System

women, industrial health, safety, and welfare, social security, industrial relations, labour inspection, social policy in non-metropolitan areas and concerning indigenous and tribal populations, protection of migrants, trade unionism and collective bargaining.16 At that time the development of international protection of human rights was not noteworthy, however some interesting initiatives were brought up. For the purposes of this paper it is worth considering the ‘Declaration of International Rights of Man’ (‘Déclaration des droits internationaux de l’homme’) adopted on 12 October 1929 in New York by the Institute of International Law.17 Having carefully examined this declaration it should be pointed out immediately that this is not a comprehensive list of human rights. However the basic idea of this declaration that states have to respect the rights of the individuals without any discrimination, even if only moderately, but contributed to the development of international human rights. Human rights already had been recognized as a matter of international concern in some policy statement as well, but they could not be considered as broad manifestation. One of the best known statements is the speech of President Roosevelt on 6 January 1941. He said in his State of the Union (Four Freedoms) Message: Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain these rights or keep them. Our strength is our unity of purpose. To that high concept there can be no end save victory.18

1.2

The Development of the International Human Rights: After the World War II

After the World War II, as ineluctable reaction to the genocide and mass atrocities committed during the war, international human rights law emerged as a standard subject of international relations and a major legal framework for the protection of individual rights and freedoms. The importance of human rights was reflected by the Charter of the United Nations (hereinafter the ‘UN Charter’) signed on 26 June, 1945.19 The Preamble of the 16 www.ilo.org/global/standards/introduction-to-international-labour-standards/ [16-06-2015]. 17 Justitia et Pace Institut de Droit International, Rapporteur was Mr André Mandelstam. The declaration contains only six articles, affirming that every human being has right to life, liberty and property without discrimination. Moreover, underlined the duty of states to preserve the individuals’ rights from all infringements on the part of state. (Il est du devoir de tout Etat de reconnaître à tout individu le droit égal à la vie, à la liberté, et à la propriété, et d’accorder à tous, sur son territoire, pleine et entière protection de ce droit, sans distinction de nationalité, de sexe, de race, de langue ou de religion.) www.idi-iil.org/idiF/resolutionsF/1929_nyork_03_fr.pdf [16-06-2015]. See more: T. Buergenthal: The Evolving International Human Rights System, The American Journal of International Law Vol. 100, No. 4. 2006, p. 783. 18 http://millercenter.org/president/speeches/speech-3320 [17-06-2015]. 19 The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, and the United States and by a majority of other signatories.

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Elisabeth Kardos Kaponyi

Charter expressed the wish to save succeeding generations from the scourge of war, to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained, to promote social progress and better standards of life in larger freedom, to practice tolerance and good neighbourliness, and to employ international machinery for the promotion of the economic and social advancement of all peoples. The Preamble of the UN Charter includes a determination ‘to reaffirm faith in fundamental human rights’ and recognizes that peace and stability among nations is related to the recognition of and respect for human rights, and seeks to establish conditions under which both peace and human rights, including the social and economic advancement of all peoples, can be achieved.20 However, neither the participants of the San Francisco Conference in 1945, nor the founding members of the United Nations (hereafter ‘UN’) did not initiate to have rather a general references to human rights, the UN Charter does not specify human rights and does not establish any specific mechanism to ensure their implementation by Member States. The UN Charter formulated only a normative framework and potentials for further joint and separate actions by the UN and their members. Human Rights clauses in the UN Charter exhibit also clear signs of weakness and vagueness both politically and legally.21 The first legally binding specific agreement thus initiated by the recognition of the principle of international respect for human rights was the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN General Assembly on 9 December 1948.22 One day later, a major step in drafting the International Bill of Human Rights was realized on 10 December 1948, when the UN General Assembly through its Resolution 217(III) adopted the Universal Declaration of Human Rights (hereinafter the

20 Art. 1 of the Charter states that one of the aims of the United Nations is to achieve international cooperation in ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’, thus enshrining the principle of non-discrimination. Art. 55 expresses a similar aim, and by Art. 56 all members of the United Nations ‘pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55’. Moreover, all UN Member States must fulfil, in good faith, the obligations they have assumed under the Charter of the United Nations. 21 An Introduction to International Protection of Human Rights, A Textbook Ed. by R. Hanski and M. Suksi, Institute for Human Rights Åbo Akademi University, 1997, in. K. Drewicki: The United Nations Charter and the Universal Declaration of Human Rights, p. 66. 22 At the first session of the UN General Assembly, in late 1946, Cuba, Panama and India presented a draft resolution that had two objectives: a declaration that genocide was a crime that could be committed in peacetime as well as in time of war, and recognition that genocide was subject to universal jurisdiction (that is, it could be prosecuted by any State, even in the absence of a territorial or personal link). General Assembly Res. 96 (I), adopted on 11 December 1946, affirmed ‘that genocide is a crime under international law which the civilized world condemns.’ The convention was adopted by the UN General Assembly on 9 December 1948. After obtaining the requisite twenty ratifications required by Art. XIII, the Convention entered into force on 12 January 1951. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

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‘UDHR’) which serves ‘as a common standard of achievement for all peoples and nations.’23 The UDHR was the first non-binding instrument of a general nature, a new catalogue of the modern human rights. The UDHR was the source of inspiration and has been the basis for the UN in making advances in standard setting and human rights continued to be discussed at the UN. The majority of the rights proclaimed in the UDHR have been progressively developed and codified in the later decades. International law and standards became central to the UN system for the protection of human rights. The development of the international human rights which started in the immediate post-war years, slowed in due to the bipolar characteristic of the Cold War. The human rights noticeably became a field for superpower battle. Both superpowers regularly intervened militarily to reverse impending or ongoing human rights improvements. The impact of Cold War was evident in the derailing of work of the further elaboration of international human rights standards. The end of the Cold War had ideologies that struggled for human rights and reinforced the international human rights movement. It should be mentioned that the further development of human rights norms has been influenced by many coefficients.24 The process of decolonisation in Africa and in Asia in 1960s had a decisive impact to progress the adoption of sectorial UN human rights conventions and international supervisory organs. A powerful bloc of Asian, African, and Arab states successfully asserted their control over the UN’s human rights initiatives.25 The new UN Member States, mainly the AfroAsian states which formed the largest voting bloc in the UN, have generated a considerable transformation in the treatment of human rights matters at the international level ever since. These countries, which had suffered under colonial domination, had a special interest in human rights and put on the agenda the matter of the economic modernization and the rights of peoples and nations.26 The International Convention on the Elimination 23 The preparatory work of the Universal Declaration needed thirteen months between May 1947 and June 1948. The debates and drafting of the Declaration were made by UN Commission on Human Rights and subsequently in the Third Committee of the General Assembly and complemented by the UNESCO. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, UN GAOR, 3d Sess, 1st plen. mtg, UN Doc. A/810 (Dec. 12, 1948). 24 T. Buergenthal: The Normative and Institutional Evolution of International Human Rights, Human Rights Quarterly, Vol. 19, No. 4, November 1997, pp. 703-723. 25 On 17 August, 1945 Indonesia proclaimed its independence in Djakarta, but the United Nations, who mediated in the conflict, formally acknowledge the date of independence as 27 December, 1949. India became independent on 15 August, 1947. In the late 1950s and 1960s the African states gained their independence and the number of the UN Member states doubled. In 1960 UN had 99 Members, in 1961 already 104 Members while Cameroun, Central African Republic, Chad, Congo (Brazzaville), Congo (Leopoldville), Cyprus, Dahomey, Gabon, Ivory Coast, Malagasy Republic, Mali, Niger, Nigeria, Senegal, Somalia, Togo, Upper Volta joined to the UN. Later Mauritania, Mongolia, Sierra Leone, Tanganyika, Algeria, Burundi, Jamaica, Rwanda, Trinidad and Tobago, Uganda, Kenya, Kuwait, Zanzibar became UN Member States. In 1967 UN had 123 Members. www.un.org/en/members/growth.shtml#text [15-06-2015]. 26 R. Burke, From Individual Rights to National Development: The First UN International Conference on Human Rights, Tehran, 1968, Journal of World History, Vol. 19, No. 3, September 2008, pp. 275-296.

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of Racial Discrimination in 1965 (CERD), the International Covenant on Economic, Social and Cultural Rights (ICESR), the International Covenant on Civil and Political Rights (ICCPR), and an Optional Protocol thereto in 1966, and thereafter, were adopted in this period. On the Second International Conference on Human Rights in Teheran, April to May 1968, two decades after the adoption of the UDHR, the UN Member States advanced and underlined the protection of human rights as it is stated in the UDHR. Representatives of 84 Member States, along with delegates or observers from a number of United Nations bodies and specialized agencies, regional intergovernmental organizations and non-governmental organizations, adopted the Proclamation of Tehran by consensus on 13 May 1968. The Teheran Conference recognized that since the adoption of the UDHR the UN has made substantial progress in defining standards for the enjoyment and protection of human rights and fundamental freedoms. ‘During this period many important international instruments were adopted but much remains to be done in regard to the implementation of those rights and freedoms’ (in para. 4).27 The racial equality and self-determination, the children rights had occupied the attention of the Teheran Conference. The developing countries gave a strong support for recognition of not only the right to self-determination but also the right to development. It is important to mention that the Proclamation of Teheran also formulated strong criticism, finding that ‘the widening gap between the economically developed and developing countries impedes the realization of human rights in the international community.’ Since human rights and fundamental freedoms are indivisible, ‘the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.’ The achievement of lasting progress in ‘the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development.’ (in paras. 12-13.)28 The UN was facing the hard challenge of a matter of urgency to elaborate international human rights standards which transformed into binding norms the provisions of the UDHR and reinforced the implementation of these norms. The World Conference on Human Rights, held in 1993 in Vienna, made important steps toward the universalism of human rights. The Conference declared that ‘The universal nature of these rights and freedoms is beyond question’ moreover it reaffirmed that ‘all human rights are universal, indivisible and interdependent and interrelated’ (in para. 5).29 27 Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc. A/CONF. 32/41 at 3 (1968). http://legal.un.org/avl/ha/humanrights.html [14-062015]. http://webtv.un.org/watch/proclamation-of-teheran-international-conference-on-human-rights-29april-1968/2581197228001 [15-06-2015]. 28 Ibid. 29 ‘The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and

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After 1993 a progress began in the development of human rights norms and mechanisms at both the national, regional and international levels.30 As the UN Secretary-General stated ‘The Vienna Declaration and Programme of Action undoubtedly constitutes one of the major events in the United Nations history of human rights. If adequately implemented, it will be a milestone in this history.’31 Pursuant to a suggestion of the Vienna World Conference on Human Rights, the UN General Assembly, in its Resolution 49/184 of 23 December 1994, proclaimed the 10-year period of the UN Decade for Human Rights Education beginning on 1 January 1995. The Vienna Declaration also made concrete recommendations for strengthening and harmonizing the monitoring capacity and the enforcement mechanisms of the UN human rights system. In this regard, it called for the establishment of a High Commissioner for Human Rights and the Office of the High Commissioner for Human Rights by the General Assembly, which subsequently created the post on 20 December 1993.32 For the time being the UN human rights bodies form a complex system. Charter-based bodies, including the Human Rights Council and bodies created under the international human rights treaties and made up of independent experts mandated to monitor State parties’ compliance with their treaty obligations. Treaty bodies could be considered as quasi-judicial bodies, given the fact that their decisions in response to individual or interstate complaints are not legally binding, but do have persuasive value.33 Treaty bodies have

30 31

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fundamental freedoms.’ Report of the World Conference on Human Rights, Report of the Secretary-General, World Conference on Human Rights Vienna, 14-25 June 1993, A/CONF.157/24 (Part I) 13 October 1993, www.unhchr.ch/huridocda/huridoca.nsf [14-06-2015]. Resolution adopted by the General Assembly 47/122. World Conference on Human Rights, A/RES/47/122. www.un-documents.net/a47r122.htm [14-06-2015]. On 25 June 1993, representatives of 171 States adopted by consensus the Vienna Declaration and Programme of Action of the World Conference on Human Rights. Excerpt from the report of the Secretary-General on the follow-up to the World Conference on Human Rights to the General Assembly at its forty-ninth session (A/49/668). www.ohchr.org/EN/AboutUs/Pages/ViennaWC5.aspx [14-06-2015]. ‘Furthermore, the World Conference on Human Rights calls on regional organizations and prominent international and regional finance and development institutions to assess also the impact of their policies and programmes on the enjoyment of human rights. […]. The World Conference on Human Rights recognizes that relevant specialized agencies and bodies and institutions of the United Nations system as well as other relevant intergovernmental organizations whose activities deal with human rights play a vital role in the formulation, promotion and implementation of human rights standards, within their respective mandates, and should take into account the outcome of the World Conference on Human Rights within their fields of competence.’ Ibid. Nine UN human rights conventions have monitoring bodies to oversee the implementation of the treaty provisions. The main features of these bodies are: they derive their existence from provisions contained in a specific legal instrument; hold more narrow mandates: the set of issues codified in the legal instrument; address a limited audience: only those countries that have ratified the legal instrument; and base their decisionmaking on consensus. The treaty bodies are composed of independent experts and meet to consider State parties’ reports as well as individual complaints or communications. They may also publish general comments on human rights topics related to the treaties they oversee. Human Rights Committee (CCRP) monitors the implementation of the International Covenant on Civil and Political Rights and its optional protocols; Committee on Economic, Social and Cultural Rights (CESCR) monitors the implementation of the Interna-

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contributed significantly to the development of international law over the past decades, they were streamlining and strengthening the UN human rights system. It may be noted that treaty bodies have formulated a series of General Recommendations and General Comments in response to issues concerning interpretation of the relevant treaty. General Recommendations and General Comments are also not legally binding but do provide appropriate guidance on the interpretation of the treaty in question. General Recommendations and General Comments of these bodies have greatly promoted the development of human rights, they are indispensable in analysing a particular convention. These General Recommendations and General Comments have a forward-thinking, progressive nature and promote the formulation of new human rights.34 The High Commissioner for Human Rights (hereafter ‘UNHCHR’) provides support for UN human rights activities, including providing secretariat support for all UN human rights bodies, maintains the specialized human rights document databases, receives individual complaints to the human rights bodies and prepares fact sheets and training materials on human rights topics.35 The UNHCHR coordinates the tasks of the different human rights organs of the UN and has a consultative function to other organs. The UNHCHR responds directly to the UN Secretary General. The Office of the United Nations High

tional Covenant on Economic, Social and Cultural Rights and its optional protocol; Committee on the Elimination of Racial Discrimination (CERD) monitors the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination; Committee on the Elimination of Discrimination against Women (CEDAW) monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women and its optional protocol; Committee against Torture (CAT) monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Subcommittee on Prevention of Torture (SPT) monitors the optional protocol; Committee on the Rights of the Child (CRC) monitors the Convention on the Rights of the Child and its optional protocols; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) monitors the implementation of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Committee on the Rights of Persons with Disabilities (CRPD) monitors the implementation of the Convention on the Rights of Persons with Disabilities and its optional protocol; Committee on Enforced Disappearances (CED) monitors the implementation of the International Convention for the Protection of All Persons from Enforced Disappearance. The CED held its first meeting in 2011. http://research.un.org/en/docs/humanrights/treaties [29-06-2015]. 34 The General Comment CESCR No. 15 (2002) became the basis for right to water. It stated ‘the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.’ 35 The High Commissioner for Human Rights José Ayala-Lasso, Ecuador, (1994-1997), Mary Robinson, Ireland (1997-2002), Sérgio Vieira de Mello, Brazil (2002-2003), Bertrand Ramcharan, Guyana (2003-2004) (Interim), Louise Arbour, Canada (2004-June 2008), Navanethem Pillay, South Africa (2008-2014). Since September 2014 Zeid Ra’ad Al Hussein of Jordan holds the position of High Commissioner for Human Rights. See: The United Nations High Commissioner for Human Rights: Conscience for the World, Edited by F.D. Gaer & C.L. Broecker, Brill Nijhoff, 2013. http://booksandjournals.brillonline.com/content/books/9789004254251 [13-07-2015].

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Commissioner for Human Rights (hereafter ‘OHCHR’)36 is the principal UN organization mandated to promote and protect human rights for all. The OHCHR provides a forum for identifying, highlighting and developing responses to today’s human rights challenges, and act as the principal focal point of human rights research, education, public information, and advocacy activities in the United Nations system. The OHCHR supports the UN Human Rights Council and its Special Rapporteur on the operational level.37 The establishment of a Human Rights Council (hereafter ‘UNHRC’)38 reflects the increasing importance being placed on human rights on the UN agenda. The upgrading of the Commission on Human Rights into a full-fledged, standing Council occurred in accordance to the priority formulated in the UN Charter, serving two main purposes of the UN, namely, security and development.39 As the UN General Assembly Resolution 60/251 of 15 March 200640 stated, the UNHRC have to ensure universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization. Moreover, the UNHRC shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner. The Council has only forty members, however, a smaller membership allows to the UNHRC to have more focused debate and discussions. The members are elected by a two-thirds vote of the UN General Assembly which is similar to the election process for Charter-based bodies and reflect the importance accorded to the Council. Members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the UNHRC and be reviewed under the universal periodic review mechanism during their term of membership.41 The UNHRC play a pivotal role in overseeing and contributing to the interpretation and development of international human rights law. The UNHRC monitor implementation of the core international human rights treaties. The Council has the authority to recommend policy measures to other organs of the UN that can help in the process of implementation of human rights, e.g., at the 29th Session of the UNHRC

36 The OHCHR was established by General Assembly Res. 48/141 of 20 December 1993. 37 www.ohchr.org/EN/AboutUs/Pages/WhatWeDo.aspx [20-06-2015]. 38 Resolution adopted by the General Assembly [without reference to a Main Committee (A/60/L.48)] 60/251. Human Rights Council, A/RES/60/251. http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_ En.pdf [13-07-2015]. 39 The Secretary-General proposed the establishment of a Human Rights Council in his March 2005 report entitled ‘In larger freedom: towards development, security and human rights for all’ (A/59/2005). ‘The creation of the Council would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations. Member States should determine the composition of the Council and the term of office of its members. Those elected to the Council should undertake to abide by the highest human rights standards.’ (A/59/2005, Para. 182). 40 Resolution adopted by the General Assembly 47/122. World Conference on Human Rights, A/RES/47/122. www.un-documents.net/a47r122.htm [14-06-2015]. 41 Ibid. (Para. 9).

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at the request of the European Union, on 15th June 2015 the UNHRC held an enhanced interactive dialogue (EID) on the human rights of migrants. This is a new work format for the Council, designed to allow the UNHRC to respond in a timely and substantive manner to important global human rights concerns.42 The UNHRC monitors compliance of all 193 UN member states with their international human rights obligations through the Universal Periodic Review (hereafter ‘UPR’). Under such a system, every Member State could come up for review on a periodic basis (over a four-year cycle) and they result in specific and authoritative recommendations for action. The Council has to ensure that the UPR is a fair, transparent system whereby Member States are checked against the same criteria. According to the UN General Assembly Resolution 60/251 the UPR shall be based on objective and reliable information of the fulfilment by each State of its human rights obligations and commitments. The UPR review is based on three documents; information prepared by the State under review (national report); a compilation of UN information on the State under review prepared by the OHCHR, and a summary of information submitted by other relevant stakeholders, also prepared by OHCHR. The UPR shall be conducted in a manner which ensures universality of coverage and equal treatment with respect to all States, and the UPR shall also be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs. Last but not least, the UPR shall complement and not duplicate the work of treaty bodies. The UPR seeks to assess Member States’ human rights records; highlight human rights violations, the Council is able to bring urgent crises to the attention of the world community; provide technical assistance to improve Member States’ abilities to effectively respond to human rights challenges; and share best practices in human rights between states and other stakeholders. The UNHRC responds to human rights violations through the so-called ‘1503 Procedure’ under which the Commission considers complaints relating to consistent patterns of gross and reliably attested human rights violations. The procedure is confidential except for the parties involved, the operation and outcome of this procedures are not public. Either individual special rapporteurs or independent experts and working groups examine, monitor and report on human rights situations according to these Special Procedures in particular countries or territories, or in relation to significant phenomena of human rights violations. According to the status on 1 November 2014, there were thirtynine thematic mandates (e.g. freedom of religions, torture, women, arbitrary detention, 42 ‘The High Commissioner welcomed the European Union’s recent determination to tackle migration in a more comprehensive manner, and the newly intensified search and rescue effort in the Mediterranean, noting that far bolder steps were needed to integrate the notion that the European Union needed and should welcome more migration at all skill-levels. The only effective approach to migration must be grounded in the human rights of the people concerned, focusing on root causes and long-term solutions.’ www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16079&LangID=E#sthash.UvHsFIHC.dpuf [18-07-2015].

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extreme poverty and human rights, migrants, African descent, cultural rights, human rights defenders, sale of children, enforced or involuntary disappearances, minority issues, foreign debt, independence of judges and lawyers) and fourteen country mandates (e.g. Syrian Arab Republic, Palestinian territories occupied since 1967, Sudan, Belarus, Somalia, Mali, Côte d’Ivoire, Eritrea, Democratic People’s Republic of Korea). It should be pointed out immediately that despite the great efforts made by the individual special rapporteurs or independent experts, the gross violation of human rights, the conditions of inequality and inequity continue all over the world. Many UN Member States fail to comply with their international human rights commitments to protect the individual and collective rights. It is evident that existing mechanisms are limited. To be worth considering the increasing prominence and activism of NGOs, national human rights institutions (NHRIs) and other civil society actors is crucial to providing policy inputs and views from the field to Member States. The Resolution of 5/1 of 18 June 2007 of UNHRC entitled ‘Institution-Building of the United Nations Human Rights Council’ provided that the UPR should ensure the participation of all relevant stakeholders, including non-governmental organizations and national human rights institutions, in accordance with General Assembly resolution 60/251 of 15 March 2006 and Economic and Social Council resolution 1996/31 of 25 July 1996, as well as any decisions that the Council may take in this regard.43 In this sense ‘stakeholders’, which are referred to in Resolution 5/1 of 18 June 2007 of UNHRC, include, inter alia, NGOs, national human rights institutions, human rights defenders, academic institutions and research institutes, regional organizations, as well as civil society representatives. Other relevant stakeholders may submit additional, credible and reliable information to the universal periodic review. Input received from stakeholders will be summarized by the OHCHR in a Summary of Stakeholders’ information which shall not exceed ten pages. Before the adoption of the outcome by the plenary of the UNHRC, the State concerned is offered the opportunity to present replies to questions or issues. Other relevant stakeholders will have the opportunity to make general comments before the adoption of the outcome by the plenary.44 The involvement of such stakeholders in the human rights debate is indispensable in order to develop the international human rights and it can justly be claimed that UNHRC would reinforce and strengthen the human rights only in close cooperation with these stakeholders. 43 See Para. 3(m) of the Annex to Res. 5/1. www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/Resolutions.aspx [28-06-2015]. 44 HRC Dec. 6/1026 sets out General Guidelines for the preparation of information under the UPR. http://ap.ohchr.org/documents/sdpage_e.aspx?b=10&se=69&t=3) [28-06-2015].

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This short study cannot consider an assessment on the mission of the Office of the United Nations High Commissioner for Refugees (hereafter ‘UNHCR’),45 nor a brief description of the wide range of the activities of the UNHCR, because this topic would deserve at least a book.46 Nonetheless, having regard to the outstanding importance of the UNHCR a brief appreciation of its activity is justified. The UNHCR was established on 14 December 1950 by the UN General Assembly and started working with a three-year mandate to help resettle European refugees who were still homeless in the aftermath of the World War II. On 28 July 1951 the UN Convention relating to the Status of Refugees was adopted which lies at the heart of UNHCR’s work. The UNHCR had to help with displacement crises in Europa, Asia, Africa and Latin America.47 At the same time, UNHCR has been asked to use its expertise to also help many internally displaced (IDPs) by conflict, because more often than not, these conflicts took place within national boundaries, rather than across them.48 The UNHCR is helping stateless people, who are the victims of the 45 Respect for the principle of non-refoulement, especially at all border points the UNHCR discussed during the constructive dialogue with States, such as: the right of freedom of movement for refugees, IDPs and stateless persons; the conditions of detention for persons in need of international protection, including at airports; the issue of family reunification; effective access to birth registration; recommending safeguards in nationality legislation to prevent statelessness among children’ (Art. 24.3 – concretely states should implement the ‘otherwise stateless’ safeguard), the protection of unaccompanied children seeking asylum and their access to asylum procedures; combating trafficking in human beings and sexual exploitation of women and children and granting protection to victims of trafficking, including referral mechanisms to the asylum procedure; strengthening opportunities for refugee women and girls’ education and employment; the security and protection of Internally Displaced Persons (IDPs) and contribution to the creation of conducive environments to the implementation of durable solutions. www.unhcr.org/4cd7bb6d6.html [28-062015]. 46 There are a great variety of books written either by refugees or on the topic of refugees which give a realistic picture of the operations and the challenges of the UNHCR. See: The UNHCR and the Supervision of International Refugge Law, Edited by J.C. Simeon, Cambridge University Press, 2013. http://ebooks.cambridge.org/ebook.jsf?bid=CBO9781139137225 [23-07-2015]. J. Hollifield, P. Martin & P. Orrenius: Controlling Immigration: A Global Perspective, Third Edition, Stanford University Press, 2014. 47 The State of the World’s Refugees 2000. www.unhcr.org/4a4c754a9.html [28-06-2015]. 48 Internally displaced persons (IDPs), are the persons displaced but not crossing an international border do not enjoy a special legal status under international law. The involuntary nature of their departure and the fact that they remain in their own country are the two main elements determining who is an internally displaced person. Nevertheless, apart from domestic law, IDPs, as civilians, are protected by international humanitarian law in situations of armed conflict and ought to be protected by international human rights law. While no international convention on the rights of internally displaced persons exists, they enjoy the same human rights as all other people within their own country of citizenship or residence. The UN Security Council Res. 1296 (2000) notes ‘that the overwhelming majority of internally displaced persons and other vulnerable groups in situations of armed conflict are civilians and, as such, are entitled to the protection afforded to civilians under existing international humanitarian law.’ (Para. 3). In February 1998, Mr. Francis M. Deng, the UN Representative of the Secretary-General on IDPs submitted the Guiding Principles on Internal Displacement (UN Doc. E/CN.4/1998/53), UN Doc. E/CN.4/1998/53/Add.2.) While the principles per se are not legally binding, they draw on binding international humanitarian and human rights law. However, it must be emphasized that the African Charter on Human Rights and peoples (1981) sets out general human rights principles applicable to all individuals, including IDPs and under the auspices of the African Union a Convention for the Protection and Assistance of Internally Displaced Persons in Africa

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contemporary migrant crisis.49 On the basis of the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, the UNHCR works with governments to prevent statelessness, resolve those cases that do occur, and defend the rights of stateless people around the world.50

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A Controversial Issue; The Responsibility to Protect

However, significant progress has been made since the end of the World War II in defining the laws of armed conflicts, the respect of these international norms and obligations still appear to be the exception rather than the rule. The law of humanitarian intervention first suggested that states do not receive unlimited discretion in their behaviour under international law. One of the biggest challenges nowadays is, how to uphold the idea of international protection of human rights when mass violations of human rights take place in any part of the world but national authorities plead that it is a matter of their internal affairs. Following the tragic event of Rwanda and the former Yugoslavia in the 1990s a gripping debate has stated how the international community should react to the serious and systematic violation of the internationally protected human rights. When can the international community intervene in a country for humanitarian reasons? As in the Millennium Report in 2000, UN Secretary-General Kofi Annan formulated If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violation of human rights that offend every precept of our common humanity?51 The Millennium Report highlighted the collective responsibility of the governments of the world to uphold human dignity, equality and equity for all people and especially children

(Kampala Convention) was adopted by African governments in 2009. See: http://www1.umn.edu/humanrts/instree/GuidingPrinciplesonInternalDisplacement.htm [28-07-2015]. Celebrating the Kampala Convention on Internal Displacement as Conflict Escalates in the Central African Republic: A Bittersweet Anniversary. www.brookings.edu/blogs/up-front/posts/2013/12/03-central-african-republic-idps-bradley [28-07-2015]. 49 A stateless person is set out in Art. 1 of the 1954 Convention relating to the Status of Stateless Persons, which defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law.’ 50 The latest report of the UNHCR Global Trends, Forced Displacement 2014 evince the year 2014 saw the highest displacement on record. By end-2014, 59.5 million individuals were forcibly displaced worldwide as a result of persecution, conflict, generalized violence, or human rights violations. This is 8.3 million persons more than the year before (51.2 million) and the highest annual increase in a single year. http://unhcr.org/ 556725e69.html [23-07-2015]. 51 The Millennium Summit was held from Wednesday, 6 September, to Friday, 8 September 2000 at United Nations Headquarters in New York. In attendance were 149 Heads of State and Government and highranking officials from over 40 other countries.

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Elisabeth Kardos Kaponyi and the most vulnerable, as is the duty of world leaders.52 As a response to the Kofi Annan dilemma, an independent commission, sponsored by the Government of Canada, was charged with the task of clarifying the scope and objectives of the responsibility to protect. The International Commission on Intervention and State Sovereignty (hereinafter ‘ICISS’) tried to find an appropriate answer to this question. In its report issued in December 2001, ICISS elaborated a new element of the international law on the core principles of the responsibility to protect (hereinafter ‘R2P’).53 As the ICISS report formulated, this report is about the so-called ‘right of humanitarian intervention’: the question of when, if ever, it is appropriate for states to take coercive – and in particular military – action, against another state for the purpose of protecting people at risk in that other state. The idea of the R2P is based on the concept of sovereignty, responsibility of the UN Security Council under the UN Charter, specific legal obligations under human rights and human protection formulating in the international humanitarian law and national law and the developing practice of the states and the other relevant actors, included the UN Security Council as well. The R2P is evoked by four specific categories: genocide, crimes against humanity, ethnic cleansing and war crimes. It means that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states.54 This responsibility, according to the ICISS, embraces three specific duties. Firstly, the responsibility to prevent; to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. Secondly, the responsibility to react: to respond to situations of compelling human need with appropriate measures which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. Thirdly, the responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. The single most important dimension of the R2P is the prevention. In other words, prevention should always be exhausted before intervention is contemplated. According to the ICISS report, effective prevention should 52 We, The Peoples, The Role of the United Nations in the 21st Century (Millennium Report of the SecretaryGeneral). www.un.org/en/events/pastevents/pdfs/We_The_Peoples.pdf [23-06-2015]. 53 The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty Foundations The foundations of the responsibility to protect, as a guiding principle for the international community of states, lie in: A. obligations inherent in the concept of sovereignty; B. the responsibility of the Security Council, under Art. 24 of the UN Charter, for the maintenance of international peace and security; C. specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law; D. the developing practice of states, regional organizations and the Security Council itself. Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect International Development Research Centre, Ottawa 2001. http://responsibilitytoprotect.org/ICISS%20Report.pdf [22-06-2015]. 54 Natural or environmental catastrophes are not included in the concept of the R2P. Ibid.

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address ‘both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.’55 The R2P is not only a State obligation, but the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with UN Chapters (VI and VIII of the Charter), to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In 2004, the UN Secretary-General’s High Level Panel on Threats, Challenges and Change released a report to the General Assembly entitled ‘A More Secure World: Our Shared Responsibility.’ In 2005 the UN World Summit stated that the international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.56 In 2009 in the report ‘Implementing the responsibility to protect’ of the UN Secretary-General three pillars of the responsibility to protect were formulated. (i) The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement; (ii). The international community has a responsibility to encourage and assist States in fulfilling this responsibility; (iii). The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the UN Charter’.57 However the concept of the R2P not yet defined by any binding international instrument, the UN Security Council play an important role in enforcement of the R2P principle, since any action should be taken through the Security Council. The Security Council passed continuously several resolutions confirming a commitment to the principles of the R2P.58 For the first time UN Security Council made official reference to the R2P in 55 Op. cit. 43. 56 Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, Resolution adopted by the General Assembly on 16 September 2005, 60/1. 2005 World Summit Outcome, A/RES/60/1 p. 30. Paras. 138-140. ‘We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.’ http://daccess-ddsny.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement [22-06-2015]. 57 Sixty-third session Agenda items 44 and 107 Integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields Follow-up to the outcome of the Millennium Summit Implementing the responsibility to protect Report of the Secretary-General. www.un.org/en/ga/search/view_doc.asp?symbol=A/63/677 [18-07-2015]. 58 Res. 1653 (Great Lakes Region) S/RES/1653, Res. 1674 (POC) S/RES/1674, Res. 1894 (POC) S/RES/1894, Res. 1970 (Libya) S/RES/1970, Res. 1973 (Libya) S/RES/1973, Res. 1975 (Cote d’Ivoire) S/RES/1975, Res. 1996 (South Sudan) S/RES/1996, Res. 2014 (Yemen) S/RES/2014, Res. 2016 (Libya) S/RES/2016, Res. 2040 (Libya) S/RES/2040, Res. 2085 (Mali) S/RES/2085, Res. 2093 (Somalia), /RES/2093, Res. 2095 (Libya),

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April 2006 in its Resolution 1674, concerning the protection of civilian populations in armed conflict, and then in August 2006 in its Resolution 1706, concerning the situation in Sudan and the establishment of an international peacekeeping mission.59 The Security Council in its Resolution 1674 (2006) emphasized the importance of preventing armed conflict and its recurrence, and stressed the need for a comprehensive approach through the promotion of economic growth, poverty eradication, sustainable development, national reconciliation, good governance, democracy, the rule of law, as well as respect for, and protection of, human rights. The Council reaffirmed its strongest condemnation of all acts of violence or abuses committed against civilians in situations of armed conflict in violation of applicable international obligations with respect, in particular, to (i) torture and other prohibited treatment, (ii) gender-based and sexual violence, (iii) violence against children, (iv) the recruitment and use of child soldiers, (v) trafficking in humans, (vi) forced displacement, and (vii) the intentional denial of humanitarian assistance.60 The Security Council strongly condemned the sexual exploitation, abuse and trafficking of women and children by military, police and civilian personnel involved in UN operations and undertook to ensure that all peace support operations employed all feasible measures to prevent such violence and to address its impact where it took place. The Security Council requested the Secretary-General and personnel-contributing countries to continue to take all appropriate action necessary to combat abuses, including through the full and immediate implementation of measures adopted in the relevant General Assembly resolutions based upon the recommendations of the report of the Special Committee on Peacekeeping.61 In Resolution S/RES/2095, Res. 2100 (Mali) S/RES/2100, Res. 2109 (South Sudan) S/RES/2109, Res. 2117 (Small Arms and Light Weapons) S/RES/2117, Res. 2121 (Central African Republic) S/RES/2121, Res. 2127 (Central African Republic) S/RES/2127, Res. 2134 (Central African Republic) S/RES/2134, Res. 2139 (Syria) S/RES/2139, Res. 2149 (Central African Republic) S/RES/2149, Res. 2150 (Prevention of Genocide) S/RES/2150, Res. 2155 (South Sudan) S/RES/2155, Res. 2165 (Syria) S/RES/2165, Res. 2171 (Maintenance of international peace and security – Conflict prevention) S/RES/2171, Res. 2185 (Role of Policing in UN Peacekeeping) S/RES/2185, Res. 2187 (South Sudan) S/RES/2187, Res. 2211 (Democratic Republic of the Congo) S/RES/2211, Res. 2220 (Small Arms) S/RES/2220, Res. 2223 (South Sudan) S/RES/2223. www.un.org/en/sc/documents/resolutions/ [13-07-2015]. 59 It also welcomed the General Assembly’s adoption, on 8 December 2005, of the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel. 60 The Security Council, ‘Reaffirming its resolutions 1265 (1999) and 1296 (2000) on the protection of civilians in armed conflict, its various resolutions on children and armed conflict and on women, peace and security, as well as its Res. 1631 (2005) on cooperation between the United Nations and regional organizations in maintaining international peace and security, and further reaffirming its determination to ensure respect for, and follow-up to, these resolutions […] Acknowledging that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being and recognizing in this regard that development, peace and security and human rights are interlinked and mutually reinforcing.’ www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1674(2006) [13-07-2015]. 61 Report of the Special Committee on Peacekeeping Operations and its Working Group 2005 substantive session (New York, 31 January-25 February 2005) 2005 resumed session (New York, 4-8 April 2005) General Assembly Official Records Fifty-ninth Session Supplement No. 19 (A/59/19/Rev.1). http://daccess-ddsny.un.org/doc/UNDOC/GEN/N05/337/80/PDF/N0533780.pdf?OpenElement [13-07-2015].

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1970 and 1973, adopted on March 2011, the Security Council demanded an immediate ceasefire in Libya, including an end to ongoing attacks against civilians, which it said might constitute ‘crimes against humanity.’ The Security Council demanded an end to the violence, ‘recalling the Libyan authorities’ responsibility to protect its population’, and imposed a series of international sanctions. The Council authorized Member States to take ‘all necessary measures’ to protect civilians under threat of attack in the country.62 In late 2010 and early 2011 the UN Security Council, unanimously adopted Resolution 1975 condemning the gross human rights violations committed in Côte d’Ivoire, underlined ‘the primary responsibility of each State to protect civilians.’63 On 21 October 2011, Resolution 2014 condemned human rights violations by the Yemeni authorities and expressly called the Yemeni Government’s for ‘primary responsibility to protect its population.’64 On 26 July 2012, the Council adopted Resolution 2062 renewing the mandate of UNOCI until 31 July 2013.65 In its Resolutions 2132 (2013) and 2155 (2014) the Security Council was reaffirming its strong commitment to the sovereignty, independence, unity and territorial integrity of the Republic of South Sudan and was condemning the fighting and targeted violence against civilians and specific ethnic and other communities occurring across the country that have resulted in hundreds of deaths and casualties and tens of thousands of internally displaced persons.66 Further condemning reported human rights violations and abuses by all parties, including armed groups and national security forces, and emphasizing that those ‘responsible for violations of international humanitarian law and international human

62 The Council also decided to refer the situation to the International Criminal Court. Res. 1970 (2011) Adopted by the Security Council at its 6491st meeting, on 26 February 2011. www.un.org/en/ga/search/view_doc. asp?symbol=S/RES/1970(2011) [13-07-2015]. Res. 1973 (2011) Adopted by the Security Council at its 6498th meeting, on 17 March 2011. www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1973(2011) [13-072015]. 63 In November 2011, President Gbagbo was transferred to the International Criminal Court to face 3 charges of crimes against humanity as an ‘indirect co-perpetrator’ of murder, rape, persecution and other inhumane acts. Res. 1975 (2011) Adopted by the Security Council at its 6508th meeting, on 30 March 2011. www.un. org/en/ga/search/view_doc.asp?symbol=S/RES/1975(2011) [18-07-2015]. 64 Res. 2014 (2011) Adopted by the Security Council at its 6634th meeting, on 21 October 2011. www.un. org/en/ga/search/view_doc.asp?symbol=S/RES/2014(2011) [18-07-2015]. 65 Res. 2062 (2012) Adopted by the Security Council at its 6817th meeting, on 26 July 2012. www.un. org/en/ga/search/view_doc.asp?symbol=S/RES/2062(2012) [18-07-2015]. 66 The Security Council was recalling its previous resolutions1996 (2011), 2046 (2012), 2057 (2012), 2109 (2013) and 2132 (2013), and ‘Strongly condemning reported and ongoing human rights violations and abuses and violations of international humanitarian law, including those involving extrajudicial killings, ethnically targeted violence, sexual and gender-based violence, rape, recruitment and use of children, enforced disappearances, arbitrary arrests and detention, violence aimed at spreading terror among the civilian population and attacks on schools and hospitals, as well as United Nations peacekeeping personnel, by all parties, including armed groups and national security forces, as well as the incitement to commit such abuses and violations, and emphasizing that those responsible for violations of international humanitarian law and violations and abuses of human rights must be held accountable and that the Government of South Sudan bears the primary responsibility to protect civilians within its territory and subject to its jurisdiction, including from potential crimes against humanity and war crimes, […].’

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Elisabeth Kardos Kaponyi rights law must be held accountable.’67 The humanitarian crisis in Syria is one of the serious conflicts of the current world. The international community, in particular the UN Security Council, the UN General Assembly, the UNHRC and Nations and the League of Arab States, have condemned the continued ‘widespread and systematic’ human rights violations in Syria. The UN Secretary General’s 5th Report (2013) on ‘State Responsibility and Prevention’ focused generally on governance mechanisms and early warning. The report was stated that ‘recent events, including in the Syrian Arab Republic, underline the vital importance of early action to prevent atrocity crimes and the terrible consequences when prevention fails.’ On 1 June 2012 on 19th special session of the UNHRC ‘deteriorating human rights situation in the Syrian Arab Republic and the recent killings in El-Houleh’ the Council condemned in the strongest possible terms the outrageous use of force against the civilian population, and condemned in the harshest terms the outrageous killing of forty-nine children, all under the age of 10 years. The UNHRC deplored that the killings in El-Houleh occurred in a context of continued human rights violations in Syria, including ongoing arbitrary detentions, hindered access for the media, and restrictions of the right to peaceful assembly. Having regard to the reports of the Independent International Commission of Inquiry on the Syrian Arab Republic (established on 22 August 2011) all parties became increasingly reckless with human life as the Syrian conflict drags on. On 12 February 2013 the High Commissioner for Human Rights Navi Pillay recommended referring the situation in Syria to the International Criminal Court and urged the Security Council to assume its responsibility to protect the population of Syria. Navi Pillay addresses the Security Council open debate on protection of civilians in armed conflict, There will always be some disagreement within the international community on how to respond to a given situation; but when tens of thousands of civilian lives are threatened, as currently in Syria, the world expects the Security Council to unite and act. Secretary-General Ban Ki-moon stated ‘We all have a responsibility to protect […] Failure to protect civilians in armed conflict can contribute directly to the commission of atrocity 67 On 8 July 2011, the Security Council, in Res. 1996, established a UN peacekeeping mission in South Sudan (UNMISS), to advise and assist the government in fulfilling its responsibility to protect civilians. South Sudan officially became an independent country on 9 July 2011. The Security Council welcomed the strengthening of the human rights investigation capacity of the United Nations Mission in the Republic of South Sudan (UNMISS) with the support of the Office of the High Commissioner for Human Rights, Commending the Intergovernmental Authority on Development (IGAD) Ministerial Group’s initiative, as supported by the United Nations and African Union, in seeking to open the dialogue and mediate between key leaders, and urging all parties to cooperate with this initiative. Security Council, Adopting Res. 2155 (2014), Extends Mandate of Mission in South Sudan, Bolstering its Strength to Quell Surging Violence. Res. 2132 (2013) Adopted by the Security Council at its 7091st meeting, on 24 December 2013. www.un.org/en/ga/ search/view_doc.asp?symbol=S/RES/2132(2013) [18-07-2015].

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crimes.’68 On 10 October 2013, in Resolution 2121, in the case of Central African Republic (CAR) conflict stressed ‘the primary responsibility of the Central African authorities to protect the population, as well as to ensure the security and unity in its territory […] their obligation to ensure respect for international humanitarian law, human rights law and refugee law.’69 It should be pointed out immediately that the long list of the decisions of the Security Council is not accompanied by the infringement, so their impact is more than doubtful. The UN Secretary-General also contributed to the development of the notion of R2R. He issued six report on the different aspect and experiences of the R2P. The first report was issued in 2010 on ‘Early warning, assessment and the responsibility to protect’.70 The second report released on ‘The role of regional and sub-regional arrangements’ in 2011.71 The following report was presented in 2012 on ‘The responsibility to protect: timely and decisive response’.72 In 2013 came out the report on ‘State Responsibility and Prevention’73 and the sixth Secretary-General report in 2014 dealt with ‘Fulfilling our collective responsibility: International assistance and the responsibility to protect’.74 These reports tried to give some explanation of the R2P and testified his dedication to promote the practical application of this principle. Not only the Secretary-General but his Special Advisors to the Secretary-General on the R2P has continuously contributed to the further development of the principle and refinement of the concept of the R2P. The first Special Advisors, Edward Luck was appointed On 21 February 2008, the second Jennifer Welsh in July 2013. The Special Advisor is responsible for negotiate with Member States and other stakeholders on further steps toward implementation of the R2P. Without question, further steps are needed because the implementation of the R2P in recent conflicts has arguably led to more harm than it has prevented. It seems that the geopolitical interests of the intervening parties are outweighed. The principle of R2P did not create any new legal obligations under the international law, however, the notion of the R2P could lead to a new rule of customary international law on the basis of an ensuing state practice.

68 Security Council must unite to protect civilians in conflict zones. www.un.org/apps/news/story.asp?NewsID= 44127#.Vcj2EPntlHw [18-07-2015]. 69 Res. 2121 (2013) Adopted by the Security Council at its 7042nd meeting, on 10 October 2013. www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2121(2013) [18-07-2015]. 70 (A/64/864) www.un.org/en/ga/search/view_doc.asp?symbol=A/64/864, [18-07-2015]. 71 (A/65/877-S2011/393) www.un.org/en/ga/search/view_doc.asp?symbol=A/65/877 [18-07-2015]. 72 (A/66/874-S/2012/578) www.un.org/en/ga/search/view_doc.asp?symbol=A/65/877 [18-07-2015]. 73 (A/67/929-S/2013/399) www.un.org/en/ga/search/view_doc.asp?symbol=A/67/929 [18-07-2015]. 74 (A/68/947-S/2014/449) www.un.org/en/ga/search/view_doc.asp?symbol=A/68/947&referer=/english/&Lang=E [18-07-2015].

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1.4

The Development of the International Human Rights at Regional Level; Council of Europe

The progressive development of human rights at the international level was accompanied by the establishment of regional human rights systems. It may be noted that one of the most developed and elaborated regional human rights system and regime is the European one. The Council of Europe (CoE), the European Union (EU) and the Organization for Security and Cooperation (OSCE) could be considered as the three main pillars of the European human rights regime. As its name indicates the OSCE is a security organization.75 The promotion of human rights, democracy and the rule of law are the core objectives of the Human Dimension pillar of the OSCE. These Human Dimensions particularly emphasises respect for and protection of human rights as a precondition for security and stability.76 The Council of Europe and the European Union seek to achieve greater unity between the states of Europe through respect for the shared values of pluralist democracy, the rule of law, human rights and fundamental freedoms as well as through pan-European cooperation, thus are promoting democratic stability and security. The Council of Europe (CoE) develops conventions and recommendations agreed to by its member states.77 The first 75 The OSCE is the biggest European intergovernmental organization. It covers with 57 States from Europe, Central Asia and North America. It was created to replace the former CSCE (Conference for Security and Cooperation in Europe), which was an important political institution in Eastern and Western Europe during the Cold War till 1990. Since 1992, the OSCE has mainly served as a political and not legal binding monitoring body. The OSCE has been monitoring elections, promoting minority rights and gender issues, fostering the engagement of civil society and reconciliation process. See: P. Terrence Hopmann, An Evaluation of the OSCE’s Role in Conflict Management, in Europe’s New Security Challenges, Edited by H. Gärtner, A. G. V. Hyde-Price & E. Reiter, Lynne Rienner Publishers, 2001, pp. 219-255. 76 These Human Dimensions were established initially in the Helsinki Final Act of 1 August 1975, the founding document of the OSCE. The OSCE Office for Democratic Institutions and Human Rights (ODIHR) is monitoring governments’ compliance with their human dimension commitments, provides support, assistance and expertise to participating States and civil society to promote democracy, rule of law, human rights and tolerance and non-discrimination. ODIHR observes elections, reviews legislation and advises governments on how to develop and sustain democratic institutions. The ODIHR conducts training programmes for government and law-enforcement officials and non-governmental organizations on how to uphold, promote and monitor human rights. Apart from the ODIHR, the High Commissioner for National Minorities, the Representative on Freedom of the Media and the Special Representative on Combating Trafficking in Human Beings also promote human rights. See: W. Zellner, The High Commissionaire on National Minorities: His Work, Effectiveness and Recommendation to Strengthen the HCNM as an Institution, in Europe’s New Security Challenges, Edited by H. Gärtner, A. G. V. Hyde-Price & E. Reiter, Lynne Rienner Publishers, 2001, pp. 265-288. 77 The Council of Europe (CoE) was created in 1949 with 10 founding members (Statute of the Council of Europe), 87 UNTS 103, E.T.S. 1; there are now 47 member states. The organization purpose is to achieve European unity and facilitate economic and social progress. It is concerned with issues such as human rights, education and cultural projects, sports, public health, protection of the environment, etc. The CoE has provided the framework for the negotiation and conclusion of more than 100 multilateral agreements among its member states (‘European treaties’).

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major treaty of the CoE was the Convention for the Protection of Human Rights and Fundamental Freedoms which was signed in 1950 and came into effect in 1953.78 The Convention was supplemented by several protocols which secure fundamental civil and political rights, not only to their own citizens of the CoE states parties but also to everyone within their jurisdiction.79 The primary focus of the ECHR is territorial: States Parties are bound to respect the Convention rights of those within their borders. The ECHR gave effect to certain of the rights stated in the UDHR and established a permanent international judicial body with jurisdiction to find against States that do not fulfil their undertakings. The European Commission of Human Rights was established in 1954 and the European Court of Human Rights in 1959. The Commission, which screened human rights complaints for the Court, was abolished in November 1998. The European Court of Human Rights (Strasbourg Court, ECtHR)80 rules on individual or state applications alleging violations of the civil and political rights set out in the ECHR and in its protocols. Since 1998 ECtHR has sat as a full-time court and individuals can apply to it directly. In accordance with the ECHR a judgment of the ECtHR delivered by the Grand Chamber is final. The States are obliged to take, so far as it concerns the applicant, all individual measures applicable under domestic law in order to eliminate the consequences of the violation established in the judgment of the ECtHR. The Court’s remarkable case law makes the ECHR a powerful living instrument.81 For the above reasons, no national court should ‘without strong reason dilute or weaken the

78 213 UNTS 221, E.T.S. 5; The rights and freedoms secured by the Convention include the right to life, the right to a fair hearing, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion and the protection of property. The Convention prohibits, in the torture and inhuman or degrading treatment or punishment, forced labour, arbitrary and unlawful detention, and discrimination in the enjoyment of the rights and freedoms secured by the Convention. See: T. Buergenthal, D. Shelton, & D. Steward: Human Rights in a Nutshell, 3rd edition, West Group, 2002. 79 For the time being the ECHR is supplemented by a series of 14 protocols. The texts of two new protocols to the ECHR, the Convention have been prepared. Protocol No. 15 amending the Convention opened for signature on 24 June 2013. Protocol No. 16 to the Convention opened for signature on 02 October 2013. Both protocols are part of the ECHR system reform efforts, in view of realising an effective implementation of the ECHR and ensuring viability of the ECHR mechanism. At the time of the writing they not yet entered into force. 80 The European Court of Human Rights is an international court based in Strasbourg. It consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the ECHR. See: D. Anagnostou: The European Court of Human Rights: Implementing Strasbourg’s Judgments on Domestic Policy, Edinburgh University Press, 2013, pp. 1-27. 81 HUDOC is the database of the European Court of Human Rights. The use of Council of Europe treaties in the case-law of the European Court of Human Rights Council of Europe / European Court of Human Rights, June 2011. www.echr.coe.int/Documents/Research_report_treaties_CoE_ENG.pdf [11-06-2015]. The official reporter of the Court is European Court of Human Rights Reports of Judgments and Decisions (previous title Publications of the European Court of Human Rights) (Eur. Ct. H.R.). See: The European Convention on Human Rights: Collected Essays, Edited by L. C. Lucaides, Martinus Nijhoff Publishers, 2007, pp. 1-17, pp. 127-133.

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Elisabeth Kardos Kaponyi effect of the Strasbourg case law.’82 The Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights83 states that the draft had extended the benefits of the Convention to ‘all persons residing within the territories of the signatory States.’ According to this document, it seemed that the preparatory committee might consider the term ‘residing’ too restrictive. It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word. The Committee therefore replaced the term ‘residing’ by the words ‘within their jurisdiction’ which are also contained in Article 2 of the Draft Covenant of the United Nations Commission. However, the territorial scope of the ECHR needed further clarification. The ECtHR in regards to Article 2 of the ECHR, has also established two branches – substantive and procedural – for this provision. Accordingly in the jurisprudence Loizidou v. Turkey84 at paragraph 62, the Court pointed out: In this respect the Court recalls that, although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ under this provision is not restricted to the national territory of the High Contracting Parties. According to its established case law, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under

82 Lord Bingham in Cornhill in R (Ullah) v. Special Adjudicator [2004] UKHL.26 Opinions of the Lords of Appeal for Judgment in the case Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant) Do (FC) (Appellant) v. Secretary of State for the Home Department (Respondent). 83 Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights (Vol. III, p. 260) See: Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly, 11 May-8 September 1949, Council of Europe, Brill, 1975. 84 Loizidou v. Turkey [1995] ECHR 10, (1995) 20 EHRR 99, 20 EHRR 99 the case was referred to the Court by the Government of the Republic of Cyprus (‘the applicant Government’) on 9 November 1993. It originated in an application (No. 15318/89) against the Republic of Turkey lodged with the European Commission of Human Rights under Art. 25 (Art. 25) on 22 July 1989 by a Cypriot national, Mrs Titina Loizidou. She grew up in Kyrenia in northern Cyprus, where she owned certain plots of land. In 1972 she married and moved with her husband to Nicosia. Since 1974, she had been prevented from gaining access to the above-mentioned properties as a result of the presence of Turkish forces in Cyprus The Turkish Government had submitted, by way of preliminary objections, inter alia, that the case fell outside the Court’s jurisdiction on the grounds that it related to facts and events which occurred before 22 January 1990, when Turkey declared that she accepted the compulsory jurisdiction of the Court (objection ratione temporis) and that it did not concern matters arising within the territory covered by this declaration (objection ratione loci). The Court considered that the applicant had suffered an unjustified interference with her property rights which was imputable to Turkey, and that it should make an award under Art. 50. www.bailii.org/eu/cases/ECHR/1995/10.html [11-06-2015].

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The Development of the International Human Rights Law with Specific Regard to the European Human Rights System Article 3, and hence engage the responsibility of that State under the Convention. In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory.

This ruling was explained in case Bankovic v. Belgium85 where the ECtHR recorded the following consideration at paragraph 67-68: In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the Convention. In this judgment reference has been made in the court’s case law, as an example of jurisdiction ‘not restricted to the national territory’ of the respondent state (see the previous case: Loizidou v. Turkey) to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under arts 2 and/or 3 (or, exceptionally, under Arts 5 and/or 6) and hence engage the responsibility of that state under the convention Soering v. UK (at para. 91). The right protected under Article 3 of the ECHR relates directly to an individual’s personal integrity and human dignity and prohibits governments from returning an individual to a country where he or she would be subjected to torture or to inhuman or degrading treatment or punishment.86 The ECtHR has derived a number of important consequences from the obligation enshrined in Article 3 of the ECHR. In the Soering v. UK87 case in which the applicant resisted extradition to the United States to 85 Bankovic & Others v. Belgium & Others – 52207/99, [2001] ECHR 890 (12 December 2001) (2001) 11 BHRC 435 (Appl. No. 52207/99). The background was the conflict in Kosovo between Serbian and Kosovar Albanian forces during 1998 and 1999. The applicants complain about the bombing of the RTS building on 23 April 1999 by NATO forces and they invoke the following provisions of the Convention: Art. 2 (the right to life), Art. 10 (freedom of expression) and Art. 13 (the right to an effective remedy). As conclusion the ECtHR states that ‘The Court is not therefore persuaded that there was any jurisdictional link between the persons who were victims of the act complained of and the respondent States. Accordingly, it is not satisfied that the applicants and their deceased relatives were capable of coming within the jurisdiction of the respondent States on account of the extra-territorial act in question.’ www.bailii.org/eu/cases/ECHR/2001/890.html [11-06-2015]. 86 The 1951 Convention relating to the Status of Refugees (1951 Convention) similarly prohibits expulsion or return (‘refoulement’) of a refugee whose life or freedom would be threatened on a Convention ground. 87 Soering v. United Kingdom [1989] ECHR 14 (7 July 1989) [1989] ECHR (Appl. No. 14038/88). The applicant, Mr Jens Soering, was born on 1 August 1966 and was a German national. He was detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia.’In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The

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stand trial in Virginia, contending that trial there would infringe his right to a fair trial under Article 6 of the ECHR and that his detention on death row, if convicted and sentenced to death, would infringe his rights under Article 3, the ECtHR ruled that the State’s responsibility could be engaged if it decided to extradite a person who risked being subjected to ill-treatment in the requesting country. In the case Cruz Varas v. Sweden the applicants alleged that the expulsion of Mr Cruz Varas to Chile constituted inhuman treatment in breach of Article 3 of the ECHR because of the risk that he would be tortured by the Chilean authorities and because of the trauma involved in being sent back to a country where he had previously been tortured. They also claimed that the return of the third applicant would be in breach of Article 3. in paras. 69 and 70 and the ECtHR reiterated that the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.88 This principle was subsequently extended by the ECtHR’s own case law to any process of removal of an alien from the national territory of Contracting party to a state where there is a real risk of treatment inconsistent with the obligation formulated in Article 3 of the ECHR. In Vilvarajah v. UK89 case five applicants alleged that their removal to Sri Lanka establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.’ www.echr.coe.int/Documents/FS_Expulsions_Extraditions_ENG.pdf [11-06-2015]. 88 Cruz Varas and Others v. Sweden, A/201, [1991] ECHR 26, (1991) 14 EHRR 1, IHRL 2594 (ECHR 1991), 20th March 1991 (Appl. No. 15576/89). The first applicant, Hector Cruz Varas, was a national of Chile, who fled his country of origin and sought asylum in Sweden in January 1987. His wife and son (the second and third applicants) joined him later in June 1987. In his asylum application he explained that he was a member inter alia of the Socialist Party and the Revolutionary Worker’s Front, both of which were opposed to the regime of Pinochet in Chile. www.refworld.org/docid/3ae6b6fe14.html [11-06-2015]. 89 Vilvarajah and Others v. United Kingdom, Judgement of 30 October 1991, [1991] ECHR 13163/87 (Appl. Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87). The case concerned five Tamils who fled Sri Lanka because of abuses by governmental forces and sought asylum in the United Kingdom in 1987. Their claims were rejected in first instance and subsequent judicial review proceedings were unsuccessful, the UK authorities finding them to be victims of generalised violence and not of individualised, targeted persecution in the sense of the 1951 Convention relating to the Status of Refugees. They were sent back to Sri Lanka in February 1988, but when their appeals against the rejection of their asylum applications were finally successful, all five applicants were all allowed to come back to the United Kingdom. www.refworld.org/docid/3ae6b7008. html [11-06-2015].

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amounted to inhuman and degrading treatment in breach of Article 3 of the ECHR because they all faced various forms of ill-treatment upon return there. The Court confirmed the applicability of Article 3 to such situations and reiterated that the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion; the Court is not precluded, however, from having regard to information which comes to light subsequent to the expulsion. This may be of value in confirming or refuting the appreciation that has been made by the Contracting party or the well-foundedness or otherwise of an applicant’s fears. (Para. 107) The ECtHR noted in its judgement in paragraph 103, the that there were no such grounds regarding the removal of the applicants – including a member of the Tamil community – to Sri Lanka in 1988, and accordingly that there had been no violation of Article 3. The liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad. Also, in the case Al-Adsani v. UK90 a majority of the ECtHR (Grand Chamber) found that there was no general acceptance in international law of the principle that States were not entitled to immunity in respect of civil claims for damages for torture committed in a foreign State. It found that the Court of Appeal’s grant of immunity pursued the legitimate aim of complying with international law, to promote comity and good relations between States through the respect of another State’s sovereignty (in Para. 39). This question was also a matter requiring clarification before the European Court of Justice (EJC). In Joined Cases C-411/10 and C-493/10, N. S. v. Secretary of State for the Home and M. E. et al. v. Refugee Applications Commissioner et al., the ECJ found that asylum seekers could not be transferred to a member state where substantial grounds existed that they would face a real risk of being subjected to inhuman or degrading treatment.91 In most cases, a finding of violation of Article 3 of the ECHR was related to viola90 Al-Adsani v. United Kingdom [2001] ECHR 35763 (Appl. No. 35763/97). Sulaiman Al-Adsani, a dual British and Kuwaiti national, was a pilot who had served in the Kuwaiti Air Force during the Gulf War and, after the Iraqi invasion, remained behind as a member of the resistance movement. He claimed to have been subjected to false imprisonment, repeated beatings and torture while in Kuwait. In August 1992, Al-Adsani instituted civil proceedings in England for compensation against the Kuwaiti Government and the Sheikh responsible for his maltreatment. In the 2001 decision of the Court (the Grand Chamber) had previously found by a narrow majority that there was no breach of Art. 6(1) of the ECHR where the English Court of Appeal had struck out claims against Kuwait for civil damages for torture on the grounds of State immunity. www.ivr.uzh.ch/institutsmitglieder/kaufmann/archives/HS09/vorlesungen/Text_No_6.pdf [11-06-2015]. 91 Preliminary rulings was concerned the interpretation, first, of Art. 3(2) of Council Reg. (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible

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tions of Articles 2 and 5 of the Convention. In some cases the alleged violation of the ‘right to a fair trial’ under Article 6 of the ECHR were examined. The ECHR guarantees a fair trial to anybody charged with a criminal offence. As a subset of this general right, accused persons are entitled to benefit from a number of ‘minimum rights’ one of which under Article 6(3)(d) is the right to cross-examine prosecution witnesses. In this context, in the R v. Horncastle case, the UK Supreme Court raised the question whether there could be a fair trial when a defendant was prosecuted based on evidence given by witnesses who subsequently did not attend the trial in person and therefore were not available to be crossexamined by the defendant.92 The case concerned four applicants’ complaints that in admitting victims’ written statements as evidence against them at their criminal trials the domestic courts had violated their right to have examined witnesses who gave sole or decisive evidence against them. It confirmed that under section 2 of the UK Human Rights Act 1998 it was required to ‘take into account’ Strasbourg cases and this meant that on rare occasions, they did not need to be followed.93 The ECtHR held, that there had been: no violation of Articles 6 § 1 and 3(d) (right to a fair trial and right to obtain attendance and examination of witnesses) of the ECHR. The Court noted that it had consistently underlined that the admissibility of evidence was primarily a matter for national law and courts to regulate. The Court’s task was to ascertain whether the proceedings as a whole had been fair. It reiterated that Article 6 § 3(d) enshrined the principle that all evidence against the accused had to be produced in their presence at a public hearing so that it could be challenged. The Court reiterated the principles established in its Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom94 in which it had agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6 § 1.95 In the case of

92 93 94 95

for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1) and, second, the fundamental rights of the European Union, including the rights set out in Arts. 1, 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union (EU Charter) and, third, Protocol (No. 30) on the application of the Charter to Poland and to the United Kingdom (OJ 2010 C 83, p. 313; ‘Protocol (No. 30)’). [2009] UKSC 14 On appeal from: [2009] EWCA Crim 964 Judgement on 9th December 2009. https://www.supremecourt.uk/decided-cases/docs/uksc_2009_0073_judgment.pdf [18-06-2015]. [2009] UKSC 14 [10]-[11] [2009] 49 EHRR 1 (Appl. Nos. 26766/05 and 22228/06). ECHR 376 [2014] (Appl. No. 4184/10). The appellants in Horncastle had been convicted of serious criminal offences, the prosecution evidence including evidence of statements of the victims of the alleged offences that was admitted under section 116 of the UK Criminal Justice Act 2003 Act. In one case the witness had died before the trial, and in the other the witness had run away the day before the trial because she was too frightened to give evidence. The appeals against conviction were dismissed by the Court of Appeal. This judgment concludes the judicial dialogue on the admissibility of hearsay evidence in criminal trials which commenced with the delivery of this Court’s Chamber judgment in Al-Khawaja and Tahery. The Supreme Court, when hearing the present applicants’ appeal, examined that judgment and invited the Grand Chamber to accept a request to rehear the case. The subsequent Grand Chamber judgment in Al-Khawaja and Tahery agreed with the Supreme Court that the sole or decisive rule should not be applied in an inflexible way.

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Jones and others v. United Kingdom96 the applicants were four British nationals who alleged that they were unlawfully detained and tortured in Saudi Arabia by Saudi Arabian police and prison officials. Medical examinations carried out on returning to the United Kingdom all concluded that the applicants’ injuries were consistent with their allegations. They launched proceedings in England, claiming damages against the Saudi Arabian State and the individual state officials who had carried out or sanctioned the alleged torture. The House of Lords also found that there was no breach of Article 6(1) of the ECHR regarding the applicants’ right of access to a court. The applicants then brought proceedings before the ECtHR alleging breach of their rights of access to court under Article 6(1) of the ECHR. The ECHR found that the United Kingdom had not breached Article 6 of the ECHR granting immunity from jurisdiction to Saudi Arabia and its officials in respect of civil claims brought against them for alleged acts of torture. The ECtHR departure point was that the right of access to court was not absolute. States could impose restrictions on it, and the restriction must be proportionate. However, a restriction had to pursue a legitimate aim, and there had to be a reasonable relationship between the aim and the means employed to pursue it. Such as said in the Al-Adsani v. the United Kingdom case, the sovereign immunity was a concept of international law under which one State should not be subjected to the jurisdiction of another State and that granting immunity in civil proceedings pursued the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty. Finally, the Court noted that, in light of the developments underway in favour of supporting an exception to immunity in the case of State officials, ECHR Contracting Parties should keep this area of law under review.

1.5

One Step Forward; The Pilot-Judgment Procedure

Particular attention needed to be given to the pilot-judgment procedure of the ECtHR which is one possible way to reduce the Court’s excessive workload. The necessity of ‘pilot’ or pilot similar procedures has already highlighted in Interlaken Declaration, adopted at the High Level Conference on the Future of the European Court of Human Rights, Interlaken (hereafter ‘Declaration’), Switzerland, on 18-19 February 2010.97 The Declaration Conclusion of judicial dialogue between ECHR and UK courts on use of hearsay evidence. www.echr.coe.int. [18-06-2015]. 96 (Appl. Nos. 34356/06 and 40528/06), ECHR upholds House of Lords’ decision that State immunity applies in civil cases involving torture of UK nationals by Saudi Arabian officials abroad but says the matter must be kept under review. Judge Kalaydjieva expressed a joint partly dissenting opinion and Judge Bianku expressed a concurring opinion. http://hudoc.echr.coe.int/eng?i=001-140005#{‘itemid’:[‘001-140005’]} [18-06-2015]. 97 ‘Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow; Considering that this situation

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noted that the number of applications brought before the ECtHR and the deficit between applications introduced and applications disposed of continues to grow. The Declaration stressed that this situation causes damage to the effectiveness and credibility of the ECHR and its supervisory mechanism and represents a threat to the quality and the consistency of the case law and the authority of the Court. The Declaration called upon States Parties to cooperate with the Committee of Ministers of the CoE, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases. According to what has been said above, the first underlying cause of the pilot judgment procedure was the hopelessly growing number of applications. Several reform attempts have been made to reduce the Court’s heavy case-load, but this time without tangible results. The outlines of the pilot-judgment procedure were first set out during preparation of Protocol No. 14 of the ECHR and the 2004 reform package.98 This procedure was welcomed, accepted by all the States Parties to the Convention. The first pilot-judgment procedure was taken in 200499 and issued by the Grand Chamber.100 This procedure could be considered as a reaction to the large groups of identical cases that derive from the same underlying problem. The ECtHR has for some time had a great many of these cases pending, referred to as repetitive cases. If the ECHR receives a significant number of applications deriving from the same root cause, it may decide to select one or more of them for priority treatment. When it settles a case, the Court seeks a solution that applies to all similar cases raising the same issue. In dealing with the selected case or cases, it will seek to achieve a solution that extends beyond the particular case or cases so as to cover all similar cases raising the same issue. The decision which is then given by the Court is a pilot decision. It is important to stress, however, the legal basis for pilot procedure has been a subject of controversy. The number of the actual or potential applications to start the pilot judgment procedure is not determined. In the pilot judgement the ECtHR is intended to determine whether there has been a violation of the Convention in the particular case; to identify the dysfunction under national law that is at the root of the violation; to give clear indications to the Government as to how it can eliminate this dysfunction; to bring about the creation of a domestic remedy capable causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;’ […]. Interlaken Declaration 19 February 2010 High Level Conference on the Future of the European Court of Human Rights, D. Repetitive applications, p. 4. https://wcd.coe.int/ViewDoc.jsp?id=1591969 [19-06-2015]. 98 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Agreement of Madrid (12.V.2009) (CETS No. 194), Explanatory Report, The problem of the Court’s excessive caseload, (at Para. 7). http://conventions.coe.int/Treaty/EN/Reports/Html/194.htm [18-07-2015]. 99 Broniowski v. Poland [GC], No. 31443/96, ECHR 2004-V (link). See also Broniowski v. Poland (friendly settlement) [GC], No. 31443/96, ECHR 2005-IX. 100 Three judge committee can deal only with repetitive cases where there is well-establish Court’s case law, and the Grande Chamber deals with the cases that concern serious interpretation questions of the ECHR.

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of dealing with similar cases, or at least to bring about the settlement of all such cases pending before the Court.101 The pilot-judgment procedure aims to help the national authorities to eliminate the systemic or structural problem highlighted by the Court as giving rise to repetitive cases. The Court has frequently found violations of ‘reasonable time’ requirement of Article 6 § 1 of the ECHR. In the decision of Gazsó v. Hungary the applicant alleged that litigation in his labour dispute had lasted an unreasonably long time (more than six years) and there was no effective remedy available to him in this regard; relying on Articles 6 and 13 of the Convention. On 13 November 2014 the application was communicated to the Hungarian Government. At the same time, the Court proposed the pilot judgment procedure (Rule 61 of the Rules of Court) to the parties. The parties submitted comments in that respect.102 The Court cited in this case a similar Hungarian application and found that the issues of excessive length of civil proceedings and lack of effective domestic remedies in the Hungarian legal system are unresolved, despite the fact that there has been for quite some time clear case law giving the Government reason to take appropriate measures to resolve those issues.103 The Court’s Assessment noted that since Hungary’s accession to the Convention system and up to 1 May 2015, more than two hundred judgments have involved the finding of a violation by Hungary concerning the excessive length of civil proceedings. In 2014 alone, violations of the right to a hearing within a reasonable time in civil cases were found in 24 occasions. Moreover, the Government has concluded friendly settlements and submitted unilateral declarations in numerous cases concerning the length of civil proceedings; these applications were subsequently struck out of the list of cases (in Para. 34). The Court notes that so far Hungary has failed to put into effect any measures actually improving the situation, despite the Court’s substantial and consistent case law on the matter. The systemic character of the problems identified in the present case is further evidenced by the fact that on 1 May 2015, approximately four hundred cases submitted against Hungary and concerning the same issue are pending before the Court’s various judicial formations, and the number of such applications is constantly increasing. (in Paras. 35-36.). In Gazsó v. Hungary case the ECtHR considered that Hungary must introduce without delay, and at the latest within one year from the 101 ‘All cases’ are including those already pending before the Court awaiting the pilot judgment. The PilotJudgment Procedure Information note issued by the Registrar www.echr.coe.int/Documents/Pilot_judgment_procedure_ENG.pdf [18-07-2015] p. 1. 102 Case of Gazsó v. Hungary, Judgment Strasbourg 16 July 2015 (Appl. No. 48322/12)/ Relying on Art. 6 § 1 (right to a fair hearing within a reasonable time) and Art. 13 (right to an effective remedy), Mr Gazsó alleged that the length of the proceedings concerning his reemployment had been excessive and that he had had no effective remedy available to him to accelerate the proceedings. The application was lodged with the European Court of Human Rights on 24 July 2012. http://hudoc.echr.coe.int/eng#{‘respondent’:[‘HUN’],’documentcollectionid2’:[‘GRANDCHAMBER’,’CHAMBER’]} [19-07-2015]. See, among many other authorities: Frydlender v. France [GC], No. 30979/96, § 43, ECHR 2000-VII, Ruotolo v. Italy, 27 February 1992, § 17, Series A No. 230-D; Mangualde Pinto v. France, No.43491/98, § 27, 9 April 2002). 103 See: among many other authorities, Kútfalvi v. Hungary, No. 4853/02, §§ 17-19, 5 October 2004).

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date on which this judgment becomes final, a remedy or a combination of remedies in the national legal system in order to bring it into line with the Court’s conclusions in the present judgment and to comply with the requirements of Article 46 of the Convention (in Para. 39).104 As well as, the above mentioned case illustrated, the pilot-judgment oblige the respondent State to eliminate the root causes of the violation of the ECHR and its protocols for the future and to redress the prejudice sustained by other victims. Furthermore, these procedures help States Parties to fulfil their role in the ECHR human rights system and take part in the effective enforcement of Court judgments. The pilot procedure provides an opportunity for adjourning the examination of all other related cases for a certain period of time that could hold out the relevant national authorities to take the necessary steps.105 Notwithstanding, ‘not every pilot judgment will lead to adjournment of cases….’ as of the Registry noted106 The pilot-judgment procedure has become an important part of the Convention system, however is not customary international law; it has not been the subject of ‘extensive State practice, precedent and doctrine’ and any exercise of codification would not aim to result in agreed rules that are binding as a matter of law.107 The human rights mechanism of the CoE was completed in 1999 with the Commissioner for Human Rights of the Council of Europe as an independent body responsible for promoting education, awareness and respect for human rights in member states was set up.108 The Commissioner should identify possible shortcomings in the law and practice concerning human rights, facilitate the activities of national ombudsperson institutions and other human rights structures and provide advice and information regarding the protection of human rights across the region. It is important to consider that not only the protection

104 The Court observed that, although the dispute concerning Mr Gazsó’s re-employment had not been complex and the parties had not caused any particular delay in the proceedings, the authorities had not exercised the requisite diligence in bringing the case to an end. The Court had already frequently found violations of Art. 6 § 1 in cases concerning length of civil proceedings in Hungary and nothing in the Government’s submissions could lead the Court to adopt a different conclusion in Mr Gazsó’s case. There had consequently been a violation of Art. 6 § 1. See: among many other authorities, Sürmeli v. Germany [GC], No. 75529/01, §§ 97101, ECHR 2006-VII), McFarlane v. Ireland [GC], No. 31333/06, § 108, 10 September 2010. 105 The Court may at any time resume its examination of any case that has been adjourned if this is what the interests of justice require, for example where the particular circumstances of the applicant make it unfair or unreasonable for them to have to wait much longer for a remedy. The Pilot-Judgment Procedure Information note issued by the Registrar www.echr.coe.int/Documents/Pilot_judgment_procedure_ENG.pdf [18-07-2015]. 106 The Pilot-Judgment Procedure Information note issued by the Registrar www.echr.coe.int/Documents/Pilot_judgment_procedure_ENG.pdf [18-07-2015] p. 1. 107 Responding to Systemic Human Rights Violations: Pilot judgments of the European Court of Human Rights and their impact at national level Strasbourg, 14 June 2010 ‘Codification of the Pilot Judgment Procedure’ Presentation by David Milner, Council of Europe 1. 108 Nils Muižnieks was elected Commissioner for Human Rights on 24 January 2012 by the Parliamentary Assembly and took up his position on 1 April 2012. He is the third Commissioner, succeeding Thomas Hammarberg (2006-2012) and Alvaro Gil-Robles (1999-2006). www.coe.int/en/web/commissioner/ [22-062015].

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and promotion of political and civil rights play an important role in the CoE, but the social and economic rights as well. Economic and social rights are specified in a separate European Social Charter, which was adopted in 1961 (Turin) and revised in 1996 (Strasbourg).109 This Charter guarantees social and economic human rights and the European Committee of Social Rights rules on the conformity of the situation in States with the European Social Charter, the 1988 Additional Protocol and the Revised European Social Charter.110

1.6

The Development of the International Human Rights at Regional Level – European Union

The European Union (formerly: European Communities (EEC), European Community (EC) was originally created as an international organisation with an essentially economic scope of action, in accordance with Article 3 of the Rome Treaty.111 The founding treaties constructed an economic union while simultaneously preserving national sovereignty over social and political matters, therefore, there was no perceived need for rules concerning respect for fundamental rights. Basically the European Union’s human rights actions could fall into three main groups; external relation, internal arena (procedure Article 7 and EU Charter of Fundamental Rights) and the case law of the European Court of Justice. In particular, the requirement of the respect for human rights was kept in mind in foreign relations, rather of a general nature based on regional or bilateral treaties, agreements or conventions or strategic partnerships dealing systematically with the issue of human rights.112 For the time being, the EU also pursues human rights dialogues with over forty 109 European Social Charter of 1961 (CETS No. 35), Additional Protocol of 1988 extending the social and economic rights of the 1961 Charter (CETS No. 128), Amending Protocol of 1991 reforming the supervisory mechanism (CETS No. 142), Additional Protocol of 1995 providing for a system of collective complaints (CETS No. 158) and Revised European Social Charter of 1996 (CETS No. 163). States Parties regularly submit a report indicating how they implement the provisions of the Charter. Each report concerns some of the accepted provisions of the Charter. These provisions are divided into the following four thematic groups: I: Employment, training and equal opportunities, II: Health, social security and social protection, III: Labour rights and IV: Children, families, migrants. 110 Under an Additional Protocol to the Charter, which came into force in 1998, national trade unions and employers’ organisations as well as certain European trade unions and employers’ organisations, and certain international NGOs are entitled to lodge complaints of violations of the Charter with the Committee. In addition, national NGOs may lodge complaints if the State concerned makes a declaration to this effect. 111 Throughout its history, the European Union (EU) has been gradually expanding. The EU is currently made up of 28 countries. The EU was created by intergovernmental treaties between the Member States. These treaties defined a number of institutions, and defined their competence. See: R H. Folsom: European Union law in a nutshell, St. Paul, MN: West Academic Publishing, 2014. 112 These include in particular: relations with candidate countries, the Cotonou Agreement with the ACP States, relations between the EU and Latin America, the Barcelona process (Mediterranean countries) and the neighbourhood policy (countries of the Caucasus in particular), political dialogue with Asian countries in the context of ASEAN and ASEM, relations with the Western Balkans countries and bilateral relations in the framework of association and cooperation agreements.

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countries and organisations, including Russia, China and the African Union. In the area of development cooperation, a human rights based approach is used to ensure that the EU strengthens its efforts to assist partner countries in implementing their international human rights obligations. The European Security Strategy, adopted in 2003 stated clearly that spreading good governance, supporting social and political reform, dealing with corruption and abuse of power, establishing the rule of law and protecting human rights are the best means of strengthening the international order. Article 21 of the Treaty on European Union has reaffirmed the EU’s determination to promote human rights and democracy through all its external actions.113 In 2012, to underline the EU’s determination to promote human rights and democracy throughout the world, the Council of the EU adopted a new strategy: ‘Human Rights and Democracy: EU Strategic Framework and EU Action Plan’ in which EU explained its vision of the protection of human rights worldwide.114 This strategy stressed the EU’s active participation and contribution in the UN General Assembly, in the UN Human Rights Council and in the ILO against human rights violations. The independence and effectiveness of the UN Office of the High Commissioner for Human Rights, as well as the independence of the treaty monitoring bodies and UN Special Procedures are essential for the EU. The EU underlines the leading role of the UNHRC in addressing urgent cases of human rights

113 1. The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations. 2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:(a) safeguard its values, fundamental interests, security, independence and integrity;(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or man-made disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance. www.lisbon-treaty.org/wcm/the-lisbon-treaty/treatyon-european-union-and-comments/ [22-06-2015]. 114 No. prev. doc.: 11417/12. http://data.consilium.europa.eu/doc/document/ST-11855-2012-INIT/en/pdf [22-06-2015].

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violations and contribute vigorously to the effective functioning of the Council, in cooperation with countries from all regions to this end. The EU calls on all members of the Human Rights Council to uphold the highest standards of human rights and to live up to their pledges made before election. The EU attaches great importance to UPR, both EU and its Member States are committed to raise UPR recommendations which have been accepted. The EU continues its engagement with the Council of Europe and the OSCE and establishes partnership with other regional organisations such as the African Union, ASEAN, SAARC, the Organisation of American States, the Arab League, the Organisation of Islamic Cooperation and the Pacific Islands Forum with a view to encouraging the consolidation of regional human rights mechanisms. Notwithstanding, the EU owing to the variety of structures, formats, frequency and methods employed, and the confidential nature of these exchanges, there is no real mechanism for monitoring and reviewing such dialogues.115

1.7

The EU Member States and the ‘Systemic Threats to the Rule of Law’

The EU’s credibility in its external relations depends on its own internal arena, this is why the EU try to establish increasing consistency between its internal and external policies in relation to human rights. The Amsterdam Treaty amended the Nice Treaty by bringing the protection of fundamental rights within the jurisdiction of the ECJ. The Lisbon Treaty reinforced the procedure (so-called ‘nuclear option’ ) in case a serious and persistent breach may occur by a Member State of the values referred to in Article 2 (dignity, freedom, liberty, democracy, and equality, rule of law, human rights and rights of minorities). If the determination under Article 2 has been made, the Council of the EU may decide to suspend certain rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.116 It is worth considering for the time being that this procedure has never been used. Mention should also be made of the initiative of the EU Commissioner for justice, fundamental rights and citizenship. In 2013, Viviane Reding has described as 115 See: European Parliament resolution of 12 March 2015 on the Annual Report on Human Rights and Democracy in the World 2013 and the European Union’s policy on the matter (2014/2216(INI)). www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0076+0+DOC+XML +V0//EN [29-06-2015]. 116 Consolidated of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Treaty of Lisbon (2007). www.eudemocrats.org/fileadmin/user_upload/Documents/D-Reader_friendly_latest%20version.pdf [13-06-2015].

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a new ‘pre-Article 7 procedure’ to strengthen the rule of law suggesting an early warning tool whose primary aim is to enable the EU Commission to enter into a structured dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law.117 The potential modification of the Article 7 procedure has been a running theme in the EU, but this would mean the amendment of the Lisbon Treaty, and it would be possible only with the unanimous will of the EU Member States.

1.8

EU Charter of the Fundamental Rights

The absence of an explicit, written catalogue of fundamental rights, binding for the European Communities has been the subject of political debate for a long time. An important initiative was that the European Community could accede to the ECHR of the CoE, thereby an already existing regional instrument could be aimed at protecting human rights, whose correct application by Member States would be supervised by the ECtHR. This initiative has failed due to rule of the Court of Justice (Opinion 2/94), according to which the Community lacked the competence to accede to the Convention.118 In light of the afore117 In a well-noted speech on 4 September 2013, Viviane Reding, former EU Justice Commissioner, drew an interesting parallel between Europe’s economic and financial crisis and what she viewed as an increasing number of ‘rule of law crises’ revealing problems of a systemic nature. Three concrete examples were mentioned in her speech: (i) The French government’s attempt in summer 2010 to secretly implement a collective deportation policy aimed at EU citizens of Romani ethnicity despite contrary assurances given to the Commission that Roma people were not being singled out; (ii) The Hungarian government’s attempt in 2011 to undermine the independence of the judiciary by implementing an early mandatory retirement policy; and (iii) The Romanian government’s failure to comply with key judgments of the national constitutional court in 2012. Speech/12/596; V. Reding, ‘The EU and the Rule of Law – What Next?’, 4 September 2013, Speech/13/677. Only systemic threats or violations of the rule of law may trigger the activation of this new mechanism, not minor or individual breaches; (ii) Unlike the current monitoring tool specifically developed for Romania and Bulgaria, this new procedure would apply equally to all Member States, regardless of the date of entry into the EU, size, etc. (iii) While the Commission will continue to remain the guardian of EU values, third party and/or external expertise may be sought when necessary. The EU Fundamental Rights Agency, the Council of Europe (in particular, the Venice Commission) and judicial networks such as the Network of the Presidents of the Supreme Judicial Courts of the EU could therefore be asked to provide expert knowledge, notably during the assessment phase. See: V. Reding, ‘A new Rule of Law initiative’, Press Conference, European Parliament, Strasbourg, 11 March 2014. 118 On 26 April 1995, the Council of the European Union requested the opinion of the EJC on the question of whether the accession of the European Community (as owner of the legal personality) to the ECHR would be compatible with the Treaty Establishing the European Community? On 7 November 1995, the ECJ heard the oral arguments of the governments of the Member States. On 28 March 1996, the ECJ held, that the Council’s request for an opinion was admissible. However the ECJ assumed that ‘Respect for human rights is therefore a condition of the lawfulness of Community acts. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. 35 Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for the Member States, would be of constitutional significance and would therefore

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mentioned opinion the Community turned towards another option and over the last decades, attempts have been made to elaborate an independent European Union document of human rights. In June 1999 the Cologne European Council passed a resolution about the preparation of an EU Charter of the Fundamental Rights (hereafter ‘EU Charter’), then the extraordinary meeting of the European Council in Tampere in October 1999 decided on setting up the preparatory body of the EU Charter.119 The EU Charter was drafted by the European Convention and solemnly proclaimed on 7 December 2000 in Nice by the European Parliament, the Council of Ministers and the European Commission. The main purpose of the EU Charter was to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a charter. The EU Charter responds to recent calls, such as information technology or genetic engineering by enshrining rights e.g. the protection of personal data or rights in connection with bioethics and transparent administration. The main sources of inspiration for the EU Charter were; the ECHR and the constitutional traditions common to the EU member states, as general principles of Community law, the European Social Charter (CoE) and the Community Charter of the Fundamental Social Rights of Workers. The Charter makes a clear distinction between rights and principles, and combines in a single text the civil, political, economic, social and societal rights which had previously been laid down in a variety on international, European and national sources. Originally, the EU Charter was not legally binding, but in 12 December 2007 it was amended and the Treaty provides that the EU shall ‘recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union […], which shall have the same legal value as the Treaties.’ The EU Charter therefore constitutes primary EU law, integral part of the EU law, setting out the fundamental rights which every Union citizen can benefit from. However, the EU Charter only applies within the scope of EU be such as to go beyond the scope of Art. 235. It could be brought about only by way of Treaty amendment. 36 It must therefore be held that, as Community law now stands, the Community has no competence to accede to the Convention.’ Opinion Pursuant to Art. 228 of the EC Treaty Opinion of the Court. ECR I17590; [1996] 2 CMLR 235 (EJC). http://eur-lex.europa.eu/resource.html?uri=cellar:3645916a-61ba-4ad584e1-57767433f326.0002.02/DOC_1&format=PDF [13-07-2015]. 119 Cologne European Council 3-4 June 1999. Presidency conclusions and annexes, IV. Further Development of the European Union, EU Charter of Fundamental Rights, Paras. 44-45. http://aei.pitt.edu/ 43336/1/Cologne_1999.pdf [16-07-2015]. Presidency Conclusions, Tampere European Council, 15 and 16 October 1999. Annex: Composition Method of Work and Practical Arrangements for the Body to Elaborate a Draft EU Charter of Fundamental Rights, as set out in the Cologne Conclusions. www.europarl.europa. eu/summits/tam_en.htm [16-07-2015]. The Charter was drafted by the European ‘Convention’ – composed of representatives of the governments of the EU Member States, members of national parliaments, the European Parliament, and the European Commission, and with observers from the ECJ and from the CoE. The Charter was solemnly proclaimed on 7 December 2000 in Nice by the European Parliament, the Council of Ministers and the European Commission. A modified Charter formed part of the defunct European Constitution (2004). After that treaty’s failure, its replacement, the Lisbon Treaty (2007), also gave force to the Charter albeit by referencing it as an independent document rather than by incorporating it into the Treaty itself. Published in Official Journal of the European Union, 2007/C 303/01.

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law. The material scope of application of the EU Charter is defined expressly in Article 51, which states that its provisions are addressed only to the EU institutions and bodies and, when they act to implement EU law, to the Member States. The EU Charter does not bind states unless they are acting to implement EU law and it does not extend the powers or competences of the Union, it does not increase the powers of the Union to the detriment of those by the Member States. Articles 52 and 53 of the EU Charter stipulate that fundamental rights must be interpreted in harmony with the constitutional traditions common to the Member States, as well as with the ECHR, and with full account taken of national laws and practices. Article 53 clearly states that the EU Charter cannot restrict or adversely affect the level of protection of fundamental rights already provided by Union law, international law including the ECHR and the Member States’ constitutions. The EU Charter is equally applicable to all the Member States of the European Union. It is important to consider that the EU Charter is supplemented by a protocol with a number of derogations for the United Kingdom and Poland. Although a Protocol (No. 30) has been adopted to clarify its application to the United Kingdom and Poland, it does not limit or rule out its impact on the legal orders of these two Member States, as expressly recognised by the Court of Justice in N.S., Case C-411/10.120 The ECJ assumed that EU law does not permit a conclusive presumption that Member States observe the fundamental rights conferred on asylum seekers. The Court also stated that its answers did not require to be qualified in any respect so as to take account of Protocol (No. 30) on the application of the EU Charter to Poland and the United Kingdom.

1.9

Dilemmas of the EU Accession to the ECHR

For a long time, the European treaties did not incorporate the human rights, while, the Court of Justice of the European Communities (later the Court of Justice of the European Union, EJC)121 which primary function was to interpret Communities level legislation and ensure that treaties were applied across all branches of the Communities, has contributed to the protection of human rights on a case by case basis. The ECJ which is not a specialised 120 Judgment in Joined Cases C-411/10, N.S. v. Secretary of State for the Home Department and C-493/10 M.E. and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, 2011. www.refworld.org/docid/4ef1ed702.html [24-07-2015]. 121 The function of the ECJ is stated in Art. 220 Treaty of Rome; the court must ‘ensure that in the interpretation and application of the Treaty the law is observed.’ Provides the judicial safeguards necessary to ensure that the law is observed in the interpretation and application of the Treaties and all of the activities of the Union. The ECJ Interprets the common regulatory framework and settles disputes on the application of Community law. It can settle disputes between Member States, between EU institutions and Member States, between different EU institutions and between EU institutions and companies or individuals. One of the very important tasks of the Court is to submit advance notification of interpretation of Community law which it does pursuant to Art. 234.

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body for human rights, has developed its own case law on the role of fundamental rights within the European legal order. The autonomy of EU law, and its specific, sui generis nature, has been a running theme throughout its legal history. EU Accession to the ECHR must therefore not disturb EU competences nor the interpretive monopoly of the CJEU in the interpretation of EU law, and Protocol 8 of the Lisbon Treaty was drafted with this in mind, specifically stating that the accession agreement must ‘make provision for preserving the specific characteristics of the Union and Union law.’ Even though, the ECJ is not a human rights court, the ECJ has greatly contributed to the development of and respect for fundamental rights at European level. Through the decisions of the ECJ, human rights have gradually been placed at the forefront of the agenda of the European Community. According to well-established case law of the ECJ, no fundamental rights form an integral part of the general principles of EU law.122 The ECJ has drawn inspiration from the constitutional traditions common to the EU Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. As early as 1969, it recognised that fundamental human rights were ‘enshrined in the general principles of Community law’ and, as such, protected by the Court itself. The ECJ stated that fundamental rights were to be part of the Community legal framework; Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.123 Its subsequent reaffirmation of the same principle the EJC ensured a level of protection of fundamental rights substantially similar to that required by the national constitution of the Member States.124 Without question, in recent decades the EJC elaborated a catalogue 122 See: judgments in Internationale Handelsgesellschaft, 11/70, EU:C:1970:114, Para. 4, and Nold v. Commission, 4/73, EU:C:1974:51, Para. 13 and Case 26/62 van Gend en Loos (NV Algemene Transporten,[1963] 1 97 Expeditie Onderneming) v. Nederlandse Administratie der Belastingen, Case 29/69 Stauder v. City of Ulm [1969] ECR 419, Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, Case 294/83 Les Verts v. Parliament [1986] ECR 1339, Case C-338/95 Wiener [1997] ECR I-6495, Case C-173/99 BECTU v. Secretary of State for Trade and Industry [2001] ECR I-4881. 123 Judgment of 12 November 1969 in Case 29/69 Erich Stauder v. City of Ulm, [1969] ECR 419 at p. 419. By an order of 18 June 1969 received by the Court Registry, on 26 June 1969 the Verwaltungsgericht Stuttgart has referred to the Court for a preliminary ruling under Art. 177 of the EEC Treaty the question whether the requirement in Art. 4 of Dec. No. 69/71 EEC of the Commission of the European Communities that the sale of butter at reduced prices to beneficiaries under certain social welfare schemes shall be subject to the condition that the name of beneficiaries shall be divulged to retailers can be considered compatible with the general principles of Community law in force. 124 Judgement of 22 October 1986 in Case Solange II Re Wuensche Handelsgesellschaft, BVerfG [1987] 3 CMLR 225, 265. ‘Solange II’ is the common name for the German Federal Constitutional Court’s decision in

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of human rights drawn from the general principles of Community law and from the common constitutional traditions of the Member States. In 2004 in Omega v. Spielhallen case the specific question referred to the ECJ was whether a common legal conception in all Member States was a precondition for one of those States being enabled to restrict the basic freedom. The ECJ considered that ‘there can be no doubt that the objective of protecting human dignity is compatible with Community law.’ The ECJ established that human dignity was one of the general principles of law recognised by the Community as in need of protection, and that the measure taken in this context fulfilled the conditions for justifying the service restriction.125 The Court of Justice examines not only the compatibility of EU legislation with fundamental rights, but also the compatibility of measures taken at national level by the Member States to apply or comply with EU law. It is important to consider that although the EJC applies the principles of the ECHR and cites decisions of the ECtHR, the EJC technically is not bound by such decisions.126 For a long time, it had been hypothesized that the EU as an international organization should have acceded to the ECHR, in order to optimize its human rights protection and to avoid double standards at European level (It may be noted that to date only states have been members of the ECHR). Accordingly, the main reason for EU accession to the ECHR would be to potentially alleviate the situation in which individuals find themselves when faced by possible breaches of the ECHR by EU institutions. Article 6(2) TEU provides that the Union will accede to the ECHR, although it states that ‘such accession shall not affect the Union’s competences as defined in the Treaties’. The accession will not extend the Union’s power and tasks; application of the ECHR will be limited to those areas which come within the competence of the EU. However, the ECJ has consistently held that an international agreement cannot affect the allocation of powers fixed by the Treaties and, consequently, the autonomy of the EU legal system.127 The ECJ observed that while after Wünsche Handelsgesellschaf (BvR 2, 197/83; 1987 3 CMLR 225) decided on 22 October 1986). The decision contended that West German courts did not need to review the legislation of the European Community, as long as (‘solange’) the EC treaties guaranteed the same fundamental rights as the German Constitution. This was a partial reversal on the stance taken in the ‘Solange I’ case, which gave Germany the authority to question all Community law against the framework of the constitution. ‘Solange II’ entrusted the ECJ to strike down any laws consistent with the fundamental rights of the EC, but retained the German courts’ authority to interpret new primary law of the Community. See: J. Kokott, Report on Germany, The European Court and National Courts: Doctrine & Jurisprudence: Legal Change in its Social Context, Edited by A.M. Slaughter, A. Stone Sweet & J. Weile, Bloomsbury Publishing, 1998. pp. 122-131. 125 Judgment of 14 October 2004 in Case 36/02, Omega Spielhallen- und Automatenaufstellungs GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, [2004] at Para. 34. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62002CJ0036:EN:PDF [13-07-2015]. See: T. Ackermann, ‘Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbHv. Oberbürgermeisterin der Bundesstadt Bonn’ Vol. 42 (2005) Common Market Law Review, Issue 4, pp. 1107-1120. 126 See: Kadi and Al Barakaat International Foundation v. Council and Commission, C-402/05 P and C-415/05 P, EU:C:2008:461, Para. 283. 127 See: Paras. 34 and 35 of EJC Opinion 2/94 (EU:C:1996:140), the Court of Justice considered that, as Community law stood at the time, the European Community had no competence to accede to the ECHR.

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accession, due to the interpretation of the ECtHR the ECHR would bind the EU including the ECJ, it would be unacceptable for the ECtHR to call into question the ECJ’s findings in relation to the scope of EU law. As it has already been noted above at the Council of Europe the most recent Additional Protocol No. 16 to the ECHR (2013) allows ECHR States Parties’ highest courts to seek advisory opinions from the ECtHR regarding the interpretation and/or application of rights in the ECHR. Although the EU will not accede to this Protocol No. 16, the ECJ nonetheless perceived it as a threat to the autonomy of EU law, because ECHR states’ highest courts might prefer to make a preliminary reference to ECtHR on the compatibility of EU law with ECHR rights, rather than to ECJ. As in March 1996 the ECJ considered ‘It must therefore be held that, as Community law now stands, the Community has no competence to accede to the Convention.’ After the opinion of 1996, it is not surprising that on 18 December 2014, the ECJ delivered its Opinion 2/13 on the compatibility with EU law in the draft agreement for EU accession to the ECHR128 stated as follows: The agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is not compatible with Article 6(2) TEU or with Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms.129 However, the legal situation has changed and the Lisbon Treaty gave the authorisation to the accession, moreover the Protocol No. 14 to the ECHR created appropriate conditions for a possible accession, the ECJ picked the draft agreement and the related documents to pieces. The ECJ’s reasoning is very thorough, detailed and thought provoking, however, it can justly be claimed that the Opinion 2/13 will be talked about for a long time. As several commentators have pointed out, a human-rights-based legal assessment of the unfavourable ECJ Opinion 2/13 which has blocked the path for the accession to the ECHR is quite negative.130 The scope of this paper unfortunately prevents an in-depth exploration of this 128 Opinion 2/13 of the Court (Full Court) 18 December 2014. 129 The request for an Opinion submitted to the Court of Justice of the European Union by the European Commission is worded as follows: ‘Is the draft agreement providing for the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 (‘the ECHR’),] compatible with the Treaties?’ http://curia.europa.eu/juris/document/document.jsf?docid=160882&doclang=EN [12-07-2015]. 130 Among other: Martin Scheinin, Sionaidh Douglas-Scott, Leonard Besselnik, Steve Peers, Stian Øby Johansen and Walter Milchl. opinion 2/13, [2014] ECJ 2475 Opinion of AG Kokott. See more: P. Gragl, A Giant Leap for European Human Rights? The Final Agreement on the European Union’s Accession to the European Convention on Human Rights, Common Market Law Review, 2011, p. 32. S. Lambrecht: The Sting is in the tail: CJEU Opinion 2/13 to draft agreement on the accession of the EU to the European Convention on

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very interesting topic. Since even if the ECJ rejected the draft accession agreement, under the Treaties, it will remain a legal obligation for the EU to sooner or later accede to the ECHR.

1.10

Conclusions

During the twentieth century, significant efforts were made to address issues of protection and promotion of the human rights through international law. The United Nations gradually built up a range of mechanisms that theoretically are capable of developing and protecting human rights. The UN made efforts to codify human rights in a universally recognized regime of treaties, institutions, and norms. Especially a spectacular development started after 1993, which was crowned by the creation of the UN Human Rights Council. The UN human rights mechanisms is well-built in theory, but in practice it is very slow and not effective. Reasons for this are mainly political. The first concern should be formulating about the choice of the members of the UNHRC, as numerous countries are member of the Council, although their human rights records are rather blameworthy. The UPR procedure’s ultimate aim is to improve the human rights situation in all countries and address human rights violations wherever they occur are capable of monitoring on the human rights situation in all UN Member States, The State has the primary responsibility to implement the recommendations contained in the final outcome. The UPR ensures that all countries are accountable for progress or failure in implementing these recommendations, but we know they are not co-operating countries. The mechanism provides the appropriate framework for continuous improvement of the human rights situation, but to be effective a strong political will would be needed. Since 2007, the Human Rights Council adopted a number of decision on the different conflicts (the Israeli-Palestinian conflict) and on the human rights situations in countries such as Syria, Libya, Iran, Burma, Guinea, North Korea, Côte d’Ivoire, Kyrgyzstan and Sri Lanka, however, these decision have very rarely been endorsed by the UN Security Council. In recent years, the Security Council has adopted several Chapter VII resolutions (‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’) on issues concerning humanitarian assistance, thus considering humanitarian crises and mass violations of human rights as a threat to international peace and security, but the enforcement of these decisions have been more than problematic.

Human Rights, in European Human Rights Law Review, 2015, p. 187. A. Duff, EU Accession to the ECHR: What to do next, in Verfblog 2015, p. 1. www.verfassungsblog.de/eu-accession-to-the-echr-what-to-donext/#.VbqK9fntlHw [12-07-2015]. L. Vanbellingen: The EU Accession to the European Convention on Human Rights What’s at Stake for the EU Institutions? http://lib.ugent.be/fulltxt/RUG01/002/163/362/RUG01002163362_2014_0001_AC.pdf [12-07-2015].

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In the end of August 2014 UN High Commissioner for Human Rights Navy Pillay expressed her deep concern about the Syrian situation, stating that ‘I firmly believe that greater responsiveness by this council would have saved hundreds of thousands of lives.’ She accused the members of the Security Council of putting their national interests ahead of international concerns, saying that ‘Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and gave breaches of – and long-term threats to – international peace and security.’ The former Secretary-General Kofi Annan also said that the diplomatic and political attempts to end the violence in Syria had repeatedly been thwarted by bickering, power play and competing interests. The recent UN Secretary-General, Ban Ki-moon, also called for greater unanimity within the Security Council: There is no more important challenge before us than improving our ability to reach a stronger and earlier consensus, […] It is time for a new era of collaboration, cooperation and action from the Security Council.131 This statements show the need of the reform of the UN Security Council and the necessity to do much more to prevent conflicts. As for preventive action, the international community should create unequivocal norms for intervention against ongoing atrocities. The principle of the R2P provoke a useful debate over humanitarian intervention in terms of state sovereignty, which could lead to the formulation of internationally binding legal norms. At European level the human rights situation seems much better than at the universal level, nonetheless there are indications that human rights cannot entirely be enforced in Europe either. The jurisprudence of the ECtHR and the ECJ is encouraging in terms of the development of the infringement of the human rights protected in the ECHR and in the EU Charter. However the opt-out from the EU Charter, the impossible application of Article 7 process, the problems around of the EU accession to the ECHR also illustrates that there are still difficulties in terms of improving human rights mechanisms. It should be pointed out that no system works perfectly therefore efforts should be made to improve the efficiency of existing mechanisms, and if it is necessary, develop the new ones. To this end, first of all we need a clear political will. The civil society, the NGOs and other stakeholders could play a significant role in influencing the decision-makers. The legal scholars also have the responsibility, they have to constantly monitor the evolution of human rights and raise their voice in case of violations of human rights.

131 With more than 191,000 dead in Syria, U.N. rights chief slams global ‘paralysis’. http://edition.cnn.com/2014/ 08/22/world/meast/syria-conflict/ [27-07-2015].

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The European Court of Human Rights and Social Rights – Emerging Trends in Jurisprudence?

Christina Binder and Thomas Schobesberger* The approach of the European Court of Human Rights (ECtHR) to socio-economic rights has long been characterised by its caution. This comes as no surprise since the European Convention on Human Rights is a ‘classic’ civil and political rights treaty, which is essentially framed in negative terms. Still, there seem to be new trends in the Court’s social rights jurisprudence. In fields such as housing, health and social security, the European Court takes a more and more affirmative stand. Increasingly, a core of social rights thus seems to be protected in the Court’s interpretation of the European Convention. This contribution focuses on these emerging trends in the ECtHR’s social rights jurisprudence. It identifies general lines/criteria in the Court’s case law, outlines the challenges encountered and shows ways forward.

2.1

Introduction

The case law of the ECtHR on social rights is a particularly captivating topic. Despite the much emphasized indivisibility of human rights, economic and social rights are still not given the same attention as civil and political rights. At universal level, both ‘generations of rights’ are enshrined in two separate Covenants – the International Covenant on Economic, Social and Cultural Rights (CESCR)1 and the International Covenant on Civil and Political Rights (CCPR)2 – with differently framed

*

1 2

Dr. Christina Binder is Professor of International Law at the University of Vienna. Thomas Schobesberger is Research Assistant in International Law at the University of Vienna. This article is the English version of ‘El Tribunal Europea de Derechos Humanos y Derechos Sociales – ¿ Nuevas tendencias en la jurisprudencia?’ in F.I. Ugartemendia Eceizabarrena/A. Saiz Arnaiz/M. Morales Antoniazzi (eds.), La garantía jurisdiccional de los Derechos Humanos. Un estudio comparado de los sistemas regionales de tutela: europeo, interamericano y africano (IVAP 2015), 99-119. International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966. For status of ratification, check https://treaties.un.org/. International Covenant on Civil and Political Rights, adopted 16 December 1966. For status of ratification, check https://treaties.un.org/.

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state obligations in the respective Articles 2. Article 2 CCPR provides for a clear cut obligation of result, requiring a state to ‘respect’ and ‘ensure’ the rights in the CCPR.3 Article 2 CESCR, conversely, is characterised by the principle of progressive realisation. It establishes an obligation of conduct and only obliges a state to take steps to achieve ‘to the maximum of its available resources’ the rights enshrined in the CESCR.4 Also the monitoring of states’ compliance with their obligations is different. While an Optional Protocol (OP) providing for individual communications was adopted at the same time with the CCPR in 1966 and entered into force 10 years later, one had to wait until 2008 and 2013 respectively to witness a similar development in the case of the CESCR. Likewise, states’ acceptance of the Optional Protocols differs greatly: while 115 states have so far signed up to the OP to the CCPR, the OP to the CESCR to date only has 20 ratifications.5,6 The same holds true for the regional level of Europe. Both generations of rights – civil and political and economic, social and cultural rights – are enshrined in two different instruments: the (revised) European Social Charter (ESC)7 and the European Convention on Human Rights (ECHR, European Convention). For evident reasons, the ESC has long been called the ‘little sister’ of the ECHR. The rights and state obligations in the (revised) ESC are far less stringent than those laid down in the ECHR. State parties to the (revised) ESC may proceed to an ‘à la carte ratification’ and – save for five out of seven core articles – selectively ratify which rights they prefer to consider as binding (opting-in system, Art. 20 ESC).8 Also the monitoring of state obligations is different: individual and inter-state complaints procedures in the framework of the ECHR versus a system mainly based on state reporting in the case of the (revised) ESC.9 What is more, the European Committee 3 4

5 6

7 8 9

Art. 2 CCPR: '1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in this present Covenant ….’ Art. 2 CESCR: ‘1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in this present Covenant by all appropriate means, including particularly the adoption of legislative measures ….’ United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=IV-3-a&chapter=4&lang=en (retrieved 10 July 2015). For a comprehensive and nuanced account set out in the CESCR see B. Saul, D. Kinley, and J. Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014); see also P. Alston, and G. Quinn, ‘The nature and scope of states parties’ obligations under the International Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly (1987) 156-229. Council of Europe Publishing, The European Social Charter (2012); and Council of Europe Publishing, European Social Charter – Collected Texts (4th ed, 2003). 43 states have so far ratified the original or revised ESC. For the status of signatures and ratifications check the website www.coe.int/T/DGHL/Monitoring/SocialCharter/ (last accessed 10 July 2015). For an overview over the procedures available through the economic, social and cultural rights, see K. Lukas, ‘The European Committee of Social Rights – The European Monitor in the Social Sphere’, 16 Austrian Review of International and European Law (2011) 83-95. See especially Chapter V: ‘The Interaction of the

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of Social Rights is only competent to adopt non-binding decisions subject to approval by the Committee of Ministers of the Council of Europe (CoE) whereas in the case of the ECHR, there is a fully-fledged Court competent to hand down binding judgments.10 Traditional reasons behind this difference are the distinction between ‘negative’ and ‘positive’ rights. Civil and political rights require the state only to abstain from action, i.e. not to torture or not to interfere with the freedom of expression (‘negative rights’). Economic, social and cultural rights, conversely, are more resource-intensive with positive state obligations requiring, for instance, the provision of housing or the establishment of hospitals and educational institutions and thus depend more on the financial means of states.11 In view of these considerations, economic, social and cultural rights have for long been considered as not being possible subjects of judicial enforcement. This traditional/classic distinction between civil and political rights as well as economic, social and cultural rights has rightly been challenged.12 For example, even the most archetypal ‘negative/civil’ rights, such as the prohibition of torture or the right to a fair trial, require positive state action, such as the training of the police and the establishment of a functioning court system. What is more, obvious ‘social dimensions’ are inherent in various civil rights, including the right to private and family life (Art. 8 ECHR) which covers aspects of the rights to housing or health; the prohibition of inhumane and degrading treatment (Art. 3 ECHR); or – the overarching – right to life (Art. 2 ECHR).13 Against that background it seems of particular interest to examine to what extent economic and social rights are protected in the case law of the ECtHR. This contribution will focus on some of the most central social rights, viz health- and housing-related rights. First, it will deal with challenges to the protection of social rights in the framework of the ECHR (Part 2.2). In Part 2.3, it will be shown that there are nonetheless ‘social rights

10 11

12

13

European Committee of Social Rights with the European court of Human Rights.’ See also Part II of The European Social Charter of G. De Búrca and B. de Witte, Social rights in Europe (2005). For an overview and assessment of international and domestic judgments on social rights see M. Langford, (ed.) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (2008). Interestingly, unlike the CESCR, the African Charter on Human and Peoples’ Rights does not subject socioeconomic rights to the doctrine of ‘progressive realization’, i.e. the dependence of social and economic rights on available resources of the state (Art. 2 CESCR). However, the African Commission of Human and Peoples' Rights, aware that scarce resources and the ‘problem of poverty’ are quite a factor in African economies, in the Gambian Mental Health case held that available resources are the delimitation of the state’s obligations while they retain the core obligation to take concrete, targeted and non-discriminatory steps (African Commission of Human Rights, Communication 241/01, Purohit and another v. The Gambia (2003) AHRLR 96 Para. 84). See also F. Viljoen, ‘The African Regional Human Rights System’, in C. Krause and M. Scheinin (eds.), International Protection of Human Rights: A Textbook (2009). See also D.M. Chirwa, ‘African Regional Human Rights System: The Promise of Recent Jurisprudence on Social Rights’, in M. Langford, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (2008). See, for example, M. Nowak, ‘Introduction to Human Rights Theory’, in M. Nowak, K. M. Januszewski, T. Hofstätter (eds.), All Human Rights For All – Vienna Manual on Human Rights (2011) 269-279; and M. Nowak, Introduction to the International Human Rights Regime (2003) 23-27. K. Drzewicki (ed.), Social Rights as Human Rights: A European Challenge (1994).

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dimensions’ inherent in the provisions of the ECHR. These are also recognised in the case law of the ECtHR. In doing so, the Court is sometimes torn between the judicial protection/enforcement of individual rights and the broader societal implications when this protection touches upon a state’s economic and social policies in view of limited state budgets. This leads to a position of judicial self-restraint on the part of the Court which grants a large margin of appreciation to states. Still, in certain fields the ECtHR overcomes its position of self-restraint as will be shown in Part 2.4. Those include instances where the state bears the direct or indirect responsibility of the individual’s situation of economic/social destitution or situations where the person is placed in the direct responsibility or custody of the state, such as prisoners. A certain level of protection may likewise be gained via the principle of non-discrimination and procedural guarantees. Eventually, it will be shown that the Court seems to cautiously move towards an increased protection of social rights.

2.2

The Protection of Social Rights in the Framework of the ECHR

Several factors pose challenges to the protection of economic and social rights in the case law of the ECtHR. These include the conception of the ECHR as ‘typical’ civil and political rights treaty, institutional limitations of the ECtHR and the Court’s traditional approach to the protection of social rights.

2.2.1

The ECHR as ‘Typical’ Civil and Political Rights Treaty

The ECHR is a ‘typical’ civil and political rights treaty. It protects ‘rights and freedoms’ (Art. 1). State obligations are framed in terms of a duty to abstain from action, i.e. as negative obligations.14 For example, Article 8 of the European Convention states that, ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ It thus provides protection for one’s existing home but does not contain a reference as to a necessary provision of housing (or the necessary establishment of social housing). Another example is Article 2 of Protocol 1 to the ECHR, which establishes a right to education, providing that ‘No person shall be denied the right to education.’ Also Article 2 of Protocol 1 is accordingly

14 For a seminal work on the rights enshrined in the ECHR and the protocols, see C. Grabenwarter, The European Convention on Human Rights – A Commentary (2014).

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framed as right of access to existing educational facilities but not as including a state’s duty to establish these educational facilities.15 The ECHR does not at all incorporate other social rights such as the right to health, social care, or social security. A pro-active role of the ECtHR as regards social rights – here, health-related and housing-related rights – finds thus its first limits in the text of the Convention itself.

2.2.2

Institutional Limitations of the ECtHR

In addition to the textual boundaries of the ECHR, there are certain institutional limitations of the ECtHR. One argument relates to the well-known debate on the justiciability of social rights. Certainly, this debate seems to have been somehow overcome with the adoption of the Optional Protocol to the CESCR and the increased judicial enforcement of social rights at the domestic level by national tribunals. It seems thus no longer disputable that also social rights can be subject to judicial enforcement. Somehow related is the question whether courts are necessarily best placed to decide matters with broader financial implications which touch upon a state’s economic or social policies.16 Rather, the argument goes, it should be parliaments, since they provide a platform for debate, represent different sectors of the population and also have the democratic mandate to decide matters of policy.17 What is more, the role of the European Court is by definition a subsidiary one. It is a means of last resort in terms of human rights protection. Especially in the field of social rights – which touch upon a state’s financial policies and impact on resource allocation within a society, domestic governments are usually better placed to decide and closer to the situation. This is also recognized by the ECtHR. In terms of Clements and Simmons: ‘The European Court nevertheless recognized that questions that concern the distribution of scarce resources are often better addressed by individual governments.’18

15 See, however, B. Rainey, E. Wicks, and C. Ovey, Jacobs, White and Ovey: The European Convention on Human Rights (2014) 521 on the positive obligations of states to accommodate parental wishes flowing from religious or philosophical wishes. See also C. Grabenwarter, above n. 14, 398. 16 See respectively A. Lester and C. O’Cinneide, ‘The effective protection of socio-economic rights’, in Y. Ghai and J. Cottrell (eds.), Economic, Social and Cultural Rights in Practice: The Role of Judges in Implementing Economic, Social and Cultural Rights (2004) 17-23. 17 See the Court’s unwillingness to decide upon obligations when it comes to housing: ‘Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision’, Jane Smith, below n. 25, Para. 106. 18 L. Clements and A. Simmons, ‘European Court of Human Rights: Sympathetic Unease’. In M. Langford, Social Rights Jurisprudence – Emerging Trends in International and Comparative Law (2008) 409, 409.

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In sum, there are obvious institutional limitations for the Court to decide matters with far-reaching social dimensions. In view of these considerations, it comes as no surprise that the ECtHR’s approach to social rights has long been – and still is – a cautious one.

2.2.3

The ECtHR’s Traditional/Classic Approach to Social Rights

The Court generally adopts a position of deference (or judicial self-restraint) and grants a broad margin of appreciation19 to domestic authorities. For example, the Court confirmed the state’s wide margin of appreciation in the field of the right to health and medical care in Pentiacova and 48 Others v. Moldova.20 The applicants had complained about the insufficient public funding of haemodialysis treatment. The Court first held that Article 8 ECHR indeed was relevant to complaints about public funding to facilitate the mobility and quality of life of disabled applicants (as it did in a number of other cases, e.g. in Sentges21). Still, the complaint was inadmissible due to the state’s wide margin of appreciation and the state’s necessary setting of priorities in view of limited state budgets. The Court thus left it to domestic authorities how to best decide upon the allocation of financial resources.22 This had been made even clearer in Sentges v. the Netherlands.23 A physically disabled man had asked to be provided with a robotic arm; the funding of which was denied by Dutch authorities. The ECtHR acknowledged the link between the applicant’s demand and his private life (Art. 8). However, again, the Court held that the complaint fell within the wide margin of appreciation of the state in the context of allocation of limited resources and considered the complaint inadmissible also in view of the fact that the applicant already enjoyed a certain level of public assistance. In the Court’s words:

19 On the Court’s practice of the margin of appreciation see D. Gomien, D. J. Harris, and L. Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (1996) 215-218. For substantive analysis and critique of the concept and how the Court resorts to it, see G. Letsas, ‘Two Concepts of the Margin of Appreciation’, 26 Oxford Journal of Legal Studies (2006) 705-732. For a comparative assessment, see G. Candia, ‘Comparing Diverse Approaches to the Margin of Appreciation: The Case of the European and the Inter-American Court of Human Rights’, Pontificia Universidad Católica de Chile Law School, Working Paper No. 1, available at SSRN (2014). 20 ECtHR, Pentiacova and 48 Others v. Moldova, Appl. No. 11462/03, admissibility decision dated 4 January 2005. 21 See below n. 23. 22 The Court is less tolerant concerning the state’s margin of appreciation when it comes to non-financial obligations. See, for example Para. 128 of Öneryildiz, below n. 38: ‘[W]hen faced with an issue such as [a methane explosion killing people and destroying property], the authorities cannot legitimately rely on their margin of appreciation, which in no way dispenses them from their duty to act in good time, in an appropriate and, above all, consistent manner.’ 23 ECtHR, Sentges v. the Netherlands, Appl. No. 27677/02, admissibility decision dated 8 July 2003.

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The European Court of Human Rights and Social Rights – Emerging Trends in Jurisprudence? Even assuming that in the present case such a special link indeed exists […], regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention […]. This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources.24

The ECtHR’s position of deference towards domestic authorities is also evidenced in the field of housing-related rights and more particularly in relation to forced evictions. In case of forced evictions, the Court focuses mainly on the existence of procedural safeguards but normally does not question the authorities’ substantive assessment. For instance, in Jane Smith v. UK25 – as well as, in similar terms, in other cases such as in Thomas and Jessica Coster v. UK26 or Chapman v. UK27 –, the Court found in case of Gypsy families who had not obtained permissions to station their caravans in the UK, that there was no violation of their right to private and family life (Art. 8 ECHR), nor of their right to property (Art. 1 of Protocol 1) or of the right to a fair trial (Art. 6 ECHR). The families had argued, inter alia, that the UK government’s decision violated their right to private and family life (Art. 8 ECHR), since to live in caravans would be part of their traditional lifestyle and the number of places to station caravans was statistically lower than the number of gypsies. Whereas the Court accepted the ‘lifestyle argument’, it found that the eviction measures were in accordance with the law, pursued a legitimate aim (protection of the rights of others and of the environment) and stated that the domestic authorities enjoyed a wide margin of appreciation in the determination of the necessity of the measures taken. In doing so, the Court held: It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. […] Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.28 The ECtHR thus declined the state’s/UK’s positive obligations under Article 8, the right to private and family life, and did not establish corresponding violations. 24 25 26 27 28

Ibid. ECtHR, Jane Smith v. the United Kingdom, Appl. No. 25154/94, judgment dated 18 January 2001. ECtHR, Coster v. The United Kingdom, Appl. No. 24876/94, judgment dated 18 January 2001. ECtHR, Chapman v. The United Kingdom, Appl. No. 27238/95, judgment dated 18 January 2001. See ECtHR, Jane Smith, above n. 25, Para. 106.

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It becomes clear from the above that the Court is careful with reading positive state obligations – ‘social rights dimensions’ – into the text of the ECHR. Rather, the Court generally stresses the wide margin of appreciation of states as regards the adoption of social policies and related questions and adopts a position of deference with respect to issues involving broader questions of resource allocation.29

2.3

Social Rights Dimensions in Selected Provisions of the ECHR

Numerous provisions in the ECHR necessarily enshrine a social dimension which is also recognized in the case law of the Court. This will be emphasized with particular focus on health-related and housing-related rights as implied in Article 8 (right to private and family life), Article 3 (prohibition of torture and inhumane and degrading treatment), Article 2 (right to life) and Article 1 of Protocol 1 (peaceful enjoyment of one’s properties). For instance, the ECtHR has recognized that Article 8 ECHR, the right to private and family life, also comprised a right to be protected against severe cases of environmental pollution and thus indirectly upheld a right to health. In López Ostra v. Spain,30 the Court found that the applicant’s effective enjoyment of her right to private and family life was infringed by the health problems and nuisance caused by a waste water plant operating in her vicinity. Spain had failed to balance the community’s interest of having a water treatment plant and the appellant’s enjoyment of her right to respect for home and to private and family life. The Court thus found a violation of Article 8. In Guerra and others v. Italy,31 the Court held that Italy’s failure to provide the local population with information about the pollution risk factor and how to proceed in the event of an accident at a nearby chemical factory amounted to a violation of Article 8 ECHR. In Tătar v. Romania,32 by withholding studies on environmental and health impacts, Romania was found to breach its positive obligations to assess risks and consequences of hazardous industrial processes and to keep the public informed. This amounted to a violation of Article 8. The ECtHR’s case law on Article 8 ECHR thus reflects obvious health dimensions of the right to private and family life and shows that the applicants’ health may be protected through reliance on the right to private and family life.

29 See J.-P. Costa, ‘European Court of Human Rights: Consistency of Its Case-Law and Positive Obligations’, 26 The Netherlands Quarterly of Human Rights (2008) 449. 30 ECtHR, López Ostra v. Spain, Appl. No. 16798/90, judgment of 9 December 1994. For an assessment, see also a. W. Heringa, ‘Private Life and the Protection of the Environment, Lopez Ostra v. Spain’, 2 Maastricht Journal of European & Comparative Law (1995) 196. Further aspects are covered in R. Desgagne, ‘Integrating Environmental Values into the European Convention on Human Rights’, 89 American Journal of International Law (1995) 263-294. 31 ECtHR, Guerra and Others v. Italy, Appl. No. 14967/89, judgment dated 19 February 1998. 32 ECtHR, Tătar v. Romania, Appl. No. 67021/01, judgment dated 27 January 2009.

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In severe cases, even Article 3 ECHR, the prohibition of torture and of inhumane and degrading treatment and punishment – the classic example of a ‘negative’ right – may have social rights dimensions. For instance, inadequate/poor detention conditions in prisons which also had an impact on the detainees’ health were seen as incompatible with prisoners’ human dignity and thus considered as violations of Article 3 (Ananyev and Others v. Russia,33 Iacov Stanciu v. Romania34 and Torreggiani and Others v. Italy35).36 Health-related issues of prisoners were thus likewise addressed through Article 3 ECHR. In most extreme cases, involving the death of persons, also the right to life (Art. 2 ECHR) offered protection. For instance, in Budayeva and Others v. Russia,37 the failure of the Russian authorities to implement land-use planning and emergency relief policies in the light of the foreseeable risk of a mudslide that led to loss of life was considered as a violation of the substantive and procedural aspects of Article 2. Another example for the Court’s recognition of a state’s failure to protect the right to life is Öneryildiz v. Turkey.38 In Öneryildiz the municipal authorities of Istanbul had failed to prevent a looming methane explosion that happened in a rubbish tip, or at least to warn the inhabitants who were living near the tip about the dangers. The Court held, accordingly, that the Turkish authorities had not taken the necessary preventive measures to protect the inhabitants39 and found a violation of Article 2 ECHR. Housing-related rights were primarily read into the right to property (Art. 1 of Protocol 1) which was interpreted in broad terms, in a way as to protect also the property/home of persons who had not purchased the property but were living there illegally but with the acceptance of the state. In Öneryildiz v. Turkey,40 for instance, the Court found that the applicant’s right to property was breached because of the destruction of his house by a methane explosion on a rubbish tip irrespective of the fact that Öneryildiz and his relatives had settled in the area without permission. The Court held that ‘possession’ in the meaning of Article 1 of Protocol 1 also covered the ‘proprietary interest in his dwelling’ which was sufficient ‘to constitute a substantive

33 ECtHR, Ananyev and Others v. Russia, Appl. Nos. 42525/07 and 60800/08, judgment dated 10 January 2012. 34 ECtHR, Iacov Stanciu v. Romania, Appl. No. 35972/05, judgment dated 24 July 2012. 35 ECtHR, Torreggiani and Others v. Italy, Appl. Nos. 43517/09, 35315/10, 37818/10, 46882/09, 55400/09, 57875/09 and 61535/09, judgment dated 8 January 2013. 36 See Section 2.4.1 below for a discussion of the relevant case law. 37 ECtHR, Budayeva and Others v. Russia, Appl. Nos. 15339/02, 11673/02, 15343/02, 20058/02 and 21166/02, judgment dated 20 March 2008. 38 ECtHR, Öneryildiz v. Turkey, Appl. No. 48939/99, judgment dated 30 November 2004. See below for the housing-related aspects of the case. 39 That the Turkish authorities had set up the rubbish tip and authorised its operation, which gave rise to the dangers in the first place, and subsequently neglected the danger, were considered aggravating circumstances by the Court. Finally, the inadequate investigation into the criminal responsibility of the persons in negligence of their duties also was considered part of the breach of Art. 2. 40 Öneryildiz, above n. 38.

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interest and hence a “possession” in the meaning of the rule laid down in the first sentence of Article 1 of Protocol No. 1’, independent of the fact whether the applicant actually owned the property.41 When considering whether Turkey had met its obligations under Article 1 of Protocol 1 following the accident, the Court held that the compensation awarded could not be regarded proper, that the government had not formally accepted any responsibility for the tragedy and that the sum awarded to the applicant had still not been paid. There was thus a violation of Article 1 of Protocol 1. Öneryildiz thus makes clear that the ECtHR may be willing to interpret ‘possession’ in a way as to even encompass illegal settlements (or the ‘proprietary interest’ connected with them). From another perspective, in Öneryildiz, the Court read housing-related dimensions into the scope of Article 1 of Protocol 1.42 In short, health- and housing-related aspects are within the scope of different provisions of the European Convention, including Articles 2, 3, 8; and of Article 1 of Protocol 1.43 This is also recognized in the case law of the Court. In certain cases, even wider social dimensions are read into the different provisions of the ECHR.

2.4

2.4.1

Emerging Trends in Social Rights Jurisprudence? The ECtHR’s Case Law on Health and Housing Related Rights

Introduction

The ECtHR’s case law in relation to health and housing related rights evidences the obvious tension between the Court’s role as a guarantor of individual rights and the broader societal implications – e.g. on financial/economic policies of states – its judgments may have. It thus comes as little surprise that the Court limits its protection of social rights to carefully confined situations. The ECtHR relies on additional ‘vehicles’ to delimit/circumscribe its social rights jurisprudence and to ease the tension between individual human rights protection and broader societal implications. The following areas/factors can be identified as

41 Ibid., Para. 129. Before, the ECtHR had established that ‘In the Court’s words in Para. 124: ‘The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right […].’ (Ibid., Para. 124). 42 On further development of the states’ obligation concerning housing, see M. Sarigiannidis and I. Pervou, ‘Adequate housing: Seeking Justiciability through the Right to Property’, 1.1. International Journal of Human Rights and Constitutional Studies (2013) 27-40. 43 Note that social security payments, too, are comprised within Art. 1 Protocol 1. See Paras. 40-42 of Burdov, below n. 46.

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conducive for the Court’s finding of such social rights dimensions and for establishing violations of the ECHR. First, the Court will be disposed of finding a violation when the gross socio-economic deficits may, directly or indirectly, be attributed to the state; i.e. when they were caused by state action. Also, when persons are under the direct responsibility of a state/in the custody of the state such as prisoners, increased social dimensions are found. Likewise the principle of non-discrimination is drawn upon; social benefits have to be granted on a non-arbitrary basis. Additional means to circumscribe state action as regards social rights are procedural obligations of domestic authorities, including the duty to inform the population or the application of fair trial standards in the adjudication of social security benefits. Generally, in cases of specific vulnerability, the Court might protect even an inner core of social rights (i.e. mostly in case of vulnerable groups). In the case law of both health- and housing-related rights, the above mentioned factors contribute to reading an increased social dimension into the provision of the ECHR.

2.4.2

Health-Related Rights, Including Social Security Benefits 44

As stated, the ECHR does not explicitly provide for health-related rights. The Court derived the protection of these rights mainly from the right to private and family life (Art. 8 ECHR) and – in the most severe cases – from Article 2 ECHR, the right to life or from Article 3 ECHR, the prohibition of torture and inhumane or degrading treatment or punishment. 2.4.2.1 Responsibility of the State for the Situation of Socio-Economic Deprivation States enjoy generally a wide margin of appreciation as regards the features of welfare systems and the provision of medical care.45 However, when the state has direct responsibility for an issue, free medical cover must be provided. In Burdov v. Russia,46 the nonpayment of a health allowance on account of Chernobyl radiations because of lack of funding was considered a violation of Article 1 of Protocol 1 by Russia. (The Court consid44 See also B. C. A. Toebes, The Right to Health as a Human Right in International Law (1999); B. C. A. Toebes, ‘The right to health’, in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, (2nd ed, 2001) 169-190. and V. A. Leary, ‘The right to health in international human rights law’, 1 Health and human rights (1994) 24-56; further information can be found in the World Health Organization, ‘25 questions and answers on health and human rights’ (2002); A. Chapman, S. Russell (eds.), Core obligations: Building a Framework for Economic, Social and Cultural Rights (2002); A. Hendriks, ‘The right to health in national and international jurisprudence’, 5.4. European journal of health law (1998) 389-408; E. E. Yamin and S. Gloppen (eds.), Litigating Health Rights: Can Courts Bring More Justice to Health? (2011). 45 See Section 2.2 on the Court’s traditional approach and the concept of margin of appreciation. 46 ECtHR, Burdov v. Russia, Appl. No. 59498/00, judgment dated 7 May 2002.

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47 48 49 50 51

52 53 54 55

Ibid., Paras. 40-42. ECtHR, Oyal v. Turkey, Appl. No. 4864/05, judgment dated 23 March 2010. Ananyev and Others v. Russia, above n. 33. The Court put it poetically, saying that the prisoners had to have ‘their meals and answer the calls of nature in […] cramped conditions.’ (Ibid., Para. 166). The Court stated: ‘The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured […].’ (Ibid., Para. 141). Stanciu, above n. 34. Ibid., Para. 187. Torreggiani v. Italy, above n. 35. ECtHR, Mouisel v. France, Appl. No. 67263/01, judgment dated 14 November 2002.

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3 required states to protect the physical integrity of persons deprived of their liberty. They had thus to be given adequate medical treatment. In comparable terms, in McGlinchey and others v. UK,56 the Court established a violation of Article 3 when a female prisoner was not admitted to hospital expediently in case of vomiting due to heroin withdrawal symptoms and was severely dehydrated. Likewise, in Khudobin v. Russia,57 the lack of qualified and timely medical assistance to a HIV-positive suffering from epilepsy was considered a violation of Article 3 ECHR. Finally, also in Vladimir Vasilyev v. Russia,58 the failure to provide a prisoner with adequate orthopaedic footwear was considered a violation of Article 3. In all these cases a state’s positive obligations as regards the provision of medical care/with respect to the health of prisoners were read into the text of the ECHR since the persons were in the direct custody of the state. 2.4.2.3 Prohibition of Discrimination Positive obligations can also stem from the prohibition of discrimination as regards social security benefits. States have generally a wide margin of appreciation as regards the establishment of social security schemes.59 Still, once established, they must be non-discriminatory. For instance, in Gaygusuz v. Austria,60 the Court found that the authorities’ refusal to grant emergency assistance to an unemployed man who had exhausted the entitlement to unemployment benefits on the sole ground that he did not have Austrian nationality was a discrimination not based on any ‘objective or reasonable justification’61 and therefore a violation of Article 1 of Protocol 1 in conjunction with Article 14 ECHR. 2.4.2.4 Positive State Obligations Due to Other Factors Also where the state’s direct responsibility is not engaged, states may, under certain conditions nevertheless have positive obligations as regards the provision of medical care, mostly under Articles 2 and 8 ECHR. In Van Kück v. Germany,62 the German authorities’ refusal to order reimbursement of top-up costs of a transsexual’s gender re-assignment treatment to a health insurance company without taking further expertise overstepped the margin of appreciation afforded to them. The ECtHR consequently held that this violated Articles 6 and 8 ECHR. In Passannante v. Italy,63 a complaint about a five months waiting period merely to book a specialist’s visit in an Italian public hospital was considered inadmissible, as mani56 57 58 59 60 61 62 63

ECtHR, McGlinchey and Others v. The United Kingdom, Appl. No. 50390/99, judgment dated 29 April 2003. ECtHR, Khudobin v. Russia, Appl. No. 59696/00, judgment dated 26 October 2006. ECtHR, Vladimir Vasilyev v. Russia, Appl. No. 28370/05, judgment dated 10 January 2012. On the margin of appreciation, see Pentiacova, above n. 20, and the articles cited in n. 19. ECtHR, Gaygusuz v. Austria, Appl. No. 17371/90, judgment dated 16 September 1996. Ibid., Para. 50. ECtHR, Van Kück v. Germany, Appl. No. 35968/97, judgment dated 12 June 2003. ECtHR, Guiseppina Passannante v. Italy, Appl. No. 32647/96, admissibility decision dated 12 June 2003.

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festly ill-founded. Still, the ECtHR established that where a state scheme for the provision of health care based upon compulsory contributions existed, any excessive delay in providing a medical service to which the patient was entitled might raise an issue under Article 8 if the delay was likely to have a serious impact on the applicant’s health. States are also obliged to adopt appropriate measures for the protection of patients’ life and to have an effective and independent judicial system so that the cause of death of patients can be determined and the responsible(s) be held accountable (see Calvelli and Ciglio v. Italy64). In Byrzykowski v. Poland,65 the Court held that the lack of effective and speedy investigation into the death of the applicant’s wife and the damage to his son’s health, following delivery by caesarean section, constituted a violation of Article 2 ECHR. The above cases show that different factors may induce the ECtHR to read health related dimensions into the ECHR. 2.4.2.5 Fair Trial Standards Also fair trial standards limit a state’s discretion concerning the allocation of social security benefits. In fact, the ECtHR applied fair trial standards to assess the states’ handling of social security-related complaints. In Salesi v. Italy,66 the Court found that the excessive length of a proceeding aimed at seeking payment of welfare allowance constituted a violation of Article 6 ECHR and awarded compensation. (See also Feldbrugge v. Netherlands,67 in which the Court held that to restrict access to an appeal body can constitute a violation of Art. 6 ECHR.) In Kerojärvi v. Finland,68 the failure to disclose relevant documents to the applicant in a proceeding seeking compensation in respect of war injuries was considered a violation of Article 6 ECHR. Overall, positive state obligations in the field of health-related rights were established on the basis of various grounds, including a state’s direct responsibility for the situation of socio-economic deprivation, like in Burdov69 and Oyal;70 or the fact that a person was placed in the direct responsibility/custody of the state such as in prisons, like in Khudobin.71 A state’s margin of discretion as regards health-related rights is likewise limited by the principle of non-discrimination and fair trial standards. The Court thus ‘mediates’ the tension between the protection of individual rights and questions of resource allocation within society by confining it to certain groups of cases. Similar tendencies can be detected in the case of housing-related rights. 64 65 66 67 68 69 70 71

ECtHR, Calvelli and Ciglio v. Italy, Appl. No. 32967/96, judgment dated 12 June 2003. ECtHR, Byrzykowski v. Poland, Appl. No. 11562/05, judgment dated 27 June 2006. ECtHR, Salesi v. Italy, Appl. No. 13023/87, judgment dated 26 February 1993. ECtHR, Feldbrugge v. The Netherlands, Appl. No. 8562/79, judgment dated 29 May 1986. ECtHR, Kerojärvi v. Finland, Appl. No. 17506/90, judgment dated 19 July 1995. See above n. 46. See above n. 48. See above n. 57.

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2.4.3

Housing-Related Rights 72

Also in the case of housing-related rights, the tension between the protection of individual rights and broader questions of resource allocation within a society are evident. Again, the Court will protect housing rights in clearly confined situations and thus engage in a careful balancing act. 2.4.3.1 Responsibility of the State for the Destruction of Property The Court recognized housing-related rights when the applicants’ homes were directly destroyed through state action. In Selçuk and Asker v. Turkey,73 the Court established that the alleged burning of houses by security forces in South Eastern Turkey constituted a violation of Articles 3, 8, 13 ECHR and of Article 1 of Protocol 1. More particularly, when establishing a violation of Article 3, the Court considered the personal circumstances of owners, their emotional connection to their houses and their loss of property which had forced them to leave their native village. On this basis, Article 8 and Article 1 of Protocol 1 were found breached in consideration of the ‘particularly grave and unjustified interferences with the applicants’ rights to respect for their private and family lives and homes, and to the peaceful enjoyment of their possessions.’74 Also Article 13 ECHR was found to be violated since the authorities in charge had not undertaken any investigation into the incident. (See also the similar case Dulaş v. Turkey.75) In Khamzayev and others v. Russia76 and Kerimova and others v. Russia,77 Russian military air raids on a town in Chechnya in the fight against supposed terrorists killed civilians and destroyed residential buildings. The Court established violations of Article 8 ECHR and of Article 1 of Protocol 1 in relation to several applicants. In doing so, the Court criticized, inter alia, that the relevant Russian laws ‘[did] not define with sufficient clarity the scope of those powers and the manner of their exercise so as to afford an individual adequate protection against arbitrariness […]’, which was why the ‘legal instrument in question, formulated in vague and general terms, cannot serve as a sufficient legal basis for such a drastic interference as the destruction of an individual’s housing and property.’ Consequently, the ECtHR found that

72 S. Leckie, ‘The right to housing’, in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (2nd ed, 2001) 149-168; S. Leckie (ed.), Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons (2003); J. Hohmann, The Right to Housing: Law, Concepts, Possibilities (2013). 73 ECtHR, Selçuk and Asker v. Turkey, Appl. Nos. 23184/94 and 23185/94, judgment dated 24 April 1998. 74 Ibid., Para. 86. 75 ECtHR, Dulaş v. Turkey, Appl. No. 25801/94, judgment dated 30 January 2001. 76 ECtHR, Khamzayev and Others v. Russia, Appl. No. 1503/02, judgment dated 3 May 2011. 77 ECtHR, Kerimova and Others v. Russia, Appl. Nos. 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05, judgment dated 3 May 2011.

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in the absence of an individualized decision or order which clearly indicated the grounds and conditions for inflicting damage on the [applicants’] property and […] home, and which could have been appealed against in a court, the interference with applicants’ rights under Article 1 of Protocol 1 and under Article 8 of the Convention was not ‘lawful’, within the meaning of the Convention and established according violations.78 In this context, also the Hădăreni case (Moldovan and others v. Romania No 2)79 is noteworthy. The destruction of Roma village houses by a mob of villagers and police officers which the state had failed to prevent was no direct violation of Article 8 ECHR because Romania was not yet party to the Convention at the time of the destruction. Still, the subsequent poor living conditions of the Roma inhabitants that resulted from the incident (many of them had to move in with relatives in overcrowded conditions or had to stay in unworthy accommodation such as ‘cellars, hen-houses, stables, etc’80 were considered a violation of Article 8. The ECtHR found, more particularly, that since police officers had instigated the mob and not protected the property, the subsequent situation of the people affected was attributable to the state. This was aggravated by the state’s failure to effectively prosecute those involved in the destruction of the houses. What is more, subsequent living conditions were bad enough as to amount to a breach of Article 3 ECHR. In the ECtHR’s words, It furthermore considers that the applicants’ living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants’ health and well-being, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement.81 On this basis, Romania was found in violation of Article 3 ECHR. Overall, also housing-related rights are protected under the Convention when the state bears direct responsibility for the situation.

78 Ibid., Paras. 217-219. 79 ECtHR, Moldovan and Others v. Romania (No. 2), Appl. Nos. 41138/98 and 64320/01, judgment dated 12 July 2005. 80 Ibid., Para. 103. 81 Ibid., Para. 110.

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2.4.3.2 Fair Procedures Also the requirement of fair procedures can provide certain protection as regards housingrelated rights. In case of forced evictions, the Court focused mainly on the existence of procedural safeguards to assess the domestic authorities’ interference with these rights. (Conversely, the Court usually did not question the authorities’ substantive assessment).82 In Saghinadze and others v. Georgia,83 the Court found that the forcible eviction of the applicants (Internally Displaced Persons from Abkhazia) from their home without judicial decision ordering the eviction, without the provision of a similar accommodation or adequate monetary compensation and in the absence of an effective subsequent judicial review constituted a violation of Article 1 of Protocol 1 and Article 8 ECHR. In Connors v. UK84 the eviction of gypsies by local authorities from a designated place where they had lived in a caravan for 13 years on the basis of a summary eviction procedure was found to be a violation of Article 8 ECHR for lack of sufficient procedural safeguards. Although the Court accepted the margin of appreciation of domestic authorities in relation to such complex topics as housing policies for the gypsy and traveller population in the case at issue, the Court found that schemes which allowed for summary evictions without subsequent judicial review of the individual case were not justifiable. Also in Buckland v. UK,85 the eviction from a caravan site following allegations of nuisance and anti-social behaviour was considered to have occurred in lack of adequate procedural guarantees: More particularly, the automatically issued court order that allowed the landlord to evict a tenant was found to be disproportional and therefore a violation of Article 8 ECHR.86 2.4.3.3 Towards the Protection of an Inner Core of Housing Related Rights? What is more, the ECtHR seems to move towards the necessary protection to provide shelter in case of particularly vulnerable individuals. In Yordanova v. Bulgaria,87 the Court held that the eviction of members of the Bulgarian Roma community from vacant land – where they had lived without proprietary interests but with the State’s acquiescence – constituted a violation of Article 8 ECHR in view of the particular vulnerability of the applicants. The Court held that, while there was no right to be provided with a home under Article 8, ‘[…] an obligation to secure shelter to particularly vulnerable individuals may

82 See respectively the cases discussed under Section 2.2.3, Jane Smith, Coster and Chapman v. UK where the Court did not find according violations. 83 ECtHR, Saghinadze and Others v. Georgia, Appl. No. 18768/05, judgment dated 27 May 2010. 84 ECtHR, Connors v. The United Kingdom, Appl. No. 66746/01, judgment dated 27 May 2004. 85 ECtHR, Buckland v. The United Kingdom, Appl. No. 40060/08, judgment dated 18 September 2012. 86 Note that in Buckland, due to the order’s automatic nature, the Court found that the interference with Art. 8 disproportional even though there was the opportunity to have an independent tribunal assess and even postpone the eviction procedure, which it in fact did. 87 ECtHR, Yordanova and Others v. Bulgaria, Appl. No. 25446/06, judgment dated 24 April 2012.

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2.5

Conclusion

When it comes to the protection of social rights, the ECtHR is in a difficult position. It has to strike a delicate balance between its mandate to protect individual rights and the broader resource implications and consequences for domestic economic policies such decisions 88 Ibid., Para. 130. 89 Ibid., Para. 133. Interestingly, the Court did not find such an obligation towards a vulnerable group in the case of Chapman v. UK (see above n. 27) and other cases of Roma people being evicted from the land they occupied. While the ECHR established a difference between those cases and Yordanova due authorities’ measures in lacking proportionality and happening beyond judicial safeguards in Yordanova, the Court also considered the state’s margin of appreciation to be less wide than in Chapman. It seems, therefore, that the Court had accepted some of the criticism it received for its over-use of the margin of appreciation doctrine, and transformed it into a more critical stance toward domestic authority action. See for an assessment A. Remiche, ‘Yordanova and others v. Bulgaria: The Influence of the Social Right to Housing on the Interpretation of the Civil Right to Respect for One’s Home’, 12 Human Rights Law Review (2012) 787-800. See also B. Selejan-Gutan, ‘Social and economic rights in the context of the economic crisis’, 02 Romanian Journal of Comparative Law (2013) 139-158. 90 ECtHR, O’Rourke v. United Kingdom, Appl. No. 39022/97, judgment dated 26 June 2001.

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may have. The Court attempted to strike this balance by generally granting a wide margin of appreciation to states. Still, in clearly confined situations it showed that it was willing to take a more sure-footed stand and to read also social dimensions into the European Convention. In such cases, positively, the indivisibility and interdependency of civil and political and of economic, social and cultural rights is also evidenced in the case law of the ECHR.

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The Comparative Approach of the European Court of Human Rights – Shared Criticism with the United States Supreme Court

Lucrezia Palandri*

3.1

Introduction

The recent worldwide trend of ‘judicial comparativism’1 can be defined as the increasing citation of foreign precedents by national and international judges, especially in deciding cases involving human rights claims. Such an attitude has always been considered an inherent character of the European Court of Human Rights (ECtHR) system of protection.2 The basic assumption of the paper is that, although the European Court’s comparative approach does not seem controversial at all throughout the Court’s case law, over the past few years the most significant disputes in legal scholarship have started to emphasise several aspects of criticism. To the extent that recourse to comparison may be more properly described as an ‘approach’ rather than a ‘method’; it seems, in fact, far from being both methodologically settled and conceptually grounded, still having to fill practical and theoretical lacunas. Such comparativism is not an isolated practice used exclusively by the ECtHR. As suggested in the opening sentence of the paper, ‘the phenomenon of borrowing and transplantation from the international to national, from the national to international, from national jurisdiction to national jurisdiction is now commonplace.’3

*

1 2 3

Ph.D. in Comparative Law at the University of Florence, Italy. An earlier version of this paper was presented at the Third Hungarian-Italian Comparative Law Workshop on ‘Comparative Law and European Law’, held at Pázmány Péter Catholic University, Faculty of Law and Political Sciences, Budapest, Hungary, in October 2014. C. McCrudden, ‘Judicial Comparativism and Human Rights’, Oxford Legal Studies, Research Paper No. 29/2007. Cf., C. Rozakis, ‘The European Judge as Comparatist’, in B. Markesinis, J. Fedtke, ‘Judicial Recourse to Foreign Law: A New Source of Inspiration?’, London, Routledge, 2006. C. McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’, Oxford Journal of Legal Studies, Vol. 20, No. 4, 2000, p. 501.

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Many national courts, too, are engaged in a similar endeavour. The comparative approach of the Strasbourg Court falls neatly in line with the growing global phenomenon variously defined also as ‘transjudicial communication’ or ‘judicial dialogue’,4 ‘cross-pollination’5 or ‘cross-fertilization’,6 and again ‘dialogical interpretation’,7 ‘global or transnational community of judges’,8 or ‘constitutional migration of ideas.’9 Comparative constitutional law scholarship all over the world has greatly debated about such topic, which has been mostly developed in the United States, especially in the opinions of the Supreme Court Justices. Strasbourg judges confront the similar kinds of problems that their counterparts on domestic supreme and constitutional courts do; and they use similar techniques and methodologies to address these problems. Theoretical and practical issues which have been raised by European commentators are quite similar to the major criticism surrounding comparative references in a national context, especially the United States one. Therefore, a joint inquiry between the European Court of Human Rights and the United States Supreme Court may be meaningful for a number of reasons. A combined analysis may be relevant in furthering our understanding of comparative interpretation, in the first place contributing to the broader debate about the nature of legal interpretation. Moreover, a comparative study may shed light and give new perspectives on a number of criticism, among others, the legitimacy of reliance on foreign law and the validity of the consensus argument. First, the paper, from the perspective of comparative constitutional law, will advocate that European Court of Human Rights deserves to be compared to a national highest court as the United States Supreme Court. Second, the paper will focus on a critical description of the comparative approach of the European Court. Last, the shared criticism between the two experiences will be outlined. By juxtaposing two different ways to deal with the same problems, the inquiry intends to contribute to better appraise the question, gain alternative perspectives, and formulate new insights and possible solutions to common challenges.

4 5 6 7 8 9

A.M. Slaughter, ‘A tipology of transjudicial communication’, in 29 U. Richmond Law Review, 1994; Id., ‘40th Anniversary Perspective: Judicial Globalization’, in 40 Va. J. Int’l L., 2000. C. L’Heureux-Dubé, ‘The Importance of Dialogue: Globalization and the International Impact of the Renquist Court’, in 34 Tulsa L. J., 1998. S. Choudhry, ‘Globalization in Search of Justifcation: Towards a Theory of Comparative Constitutional Interpretation’, in 74 Indiana L. J., 1999. Ibid. A.M. Slaughter, ‘A Global Community of Courts’, in 44 Harv. Int’l L. J., 2003, p. 191. S. Choudhry, ‘The Migration of Constitutional Ideas’, University of Toronto, 2007.

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3.2

The Comparative Approach of the European Court of Human Rights – Shared Criticism with the United States Supreme Court European Convention and United States Systems as Two Comparable Entities

In the previous paragraph, it has been stated that the European Court of Human Rights deserves to be compared to a national high court as United States Supreme Court. The reason is that they have some features in common, even though the European Convention and the United States Bill of rights are different types of documents serving different purposes, and the European Court and the United States Supreme Court are different types of judicial organs having different mandates, operating in different legal, social and political contexts. The way the Convention’s provisions are structured is similar to the one of a national Constitution.10 International human rights instruments, just as national bill of rights, tend to formulate rights provisions in a vague and general language, leaving to the judiciary the power to interpret and adapt them to the ever-changing standards and opinions in society. Most of the provisions of the European Convention were drafted in an indeterminate and abstract language, far from being straightforward. It is interesting to note that during the travaux préparatoires to the Convention, proposals for a more precise formulation of provisions had advanced but, at the end, all the members of the preparatory committe agreed upon general formulation.11 As a consequence, Strasbourg judges have gained a new space in interpreting those norms and adapting them to the current circumstances, acquiring a role similar to the one of the judges in common law traditions. Most of all, similar to the United States tradition, considering that one of the most distinctive character of the Court’s case law is its caseby-case or tailor-made approach, namely a concrete approach resulting in a flexible and highly individualized jurisprudence. In the Sunday Times judgment, the Court recognized that the decisions have to be made ‘having regard to the facts and circumstances prevailing in the case before it.’12 However, although the primary purpose of the Convention system is to provide individual relief, the Court has not accepted the ultimate consequence of such an approach, which would be that no general conclusions may be drawn from the interpretations and criteria elaborated in its case law. Indeed, the Court admitted, already in 1978, that the aims of its jurisdiction ‘is not only to decide those cases brought before the Court, but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention.’13 A purely 10 See, G. Zagrebelsky; J.A. Brauch; A. Stone Sweet. 11 The official version of the travaux préparatoires are published in eight volumes from 1975-1985 by Martinus Nijhoff in The Hague. The Registry’s internal working documents provide a full text access at the following address: http://www.echr.coe.int/Documents/Library_TravPrep_Table_ENG.pdf (latest access on November 11, 2015). 12 Sunday Times v. United Kingdom, ECtHR (1979), Appl. No. 6538/74. 13 Ireland v. United Kingdom, ECtHR (1978), Series A, Vol. 24, Para. 154.

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individualized, case-by-case approach versus a more general, constitutional case law is one of the main elements that distinguish an international court from a national high court. Even if in practice no complete transition is envisaged from an individualized approach to a constitutional case law, it is also self-evident that a shift in the attitude of the European Court towards the search of a balance between the desire for individual relief and the need for general interpretation exists.14

3.3

A Critical Analysis of the Comparative Endeavour of the European Court of Human Rights The Nature and the Scope of the European Convention on Human Rights

The comparative approach of the ECtHR has been enthusiastically recognized and given for granted by many comparative lawyers: ‘the European Court serves as a laboratory for the circulation of legal models that comparativists have dreamt of for many years.’15 In contrast to the heated debate between American scholars, the ECtHR’s comparativism has almost unanimously been considered a sign of ‘cosmopolitanism’,16 and of the fact that judges do not lock themselves in an ivory tower, but have an open attitude toward the ‘inevitable globalization of law.’17 European judges commonly resort to comparison as well as judicial references to foreign law are generally accepted and undisputed among academics due to the very nature of the Convention system. Adopted under the aegis of the Council of Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)18 is the oldest and most comprehensive system protecting rights of individuals in the world. The oldest, as it was signed in 1950 and came into force in 1953. The most comprehensive, as it counts 47 member States. However, as a matter of fact, the Court started functioning only in 1959 and, still until the end of the 1960s, a modest number of submissions were received. The

14 J. Gerards, ‘Judicial Deliberations in the European Court of Human Rights’, in N. Huls, M. Adams, J. Bomhoff (Eds.), “The Legitimacy of Highest Courts’ Rulings”, The Hague, T.M.C. Asser Press, 2009. 15 V. Grementieri, “Comparative Law and Human Rights in Europe”, in A.M. Rabello (Ed.), “European Legal Traditions and Israel”, The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, Jerusalem, 1994, p. 375. 16 C. Rozakis, “European Judge as Comparatist”, above n. 2, p. 279. 17 See, M. Tushnet, “The Inevitable Globalization of Constitutional Law”, Virginia Journal of International Law, Vol. 50, Issue 1, 2009; see also, M. Shapiro, “The Globalization of Law”, 1 Ind. J. Global Legal Stud., 1993. 18 The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter, The European Convention on Human Rights), http://www.echr.coe.int/Documents/Convention_ENG.pdf (latest access November 11, 2015).

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number of 47 signatures has been reached only during the 1990s, after the fall of communism and the accession to the Council of Europe of new countries from Central and Eastern Europe, South-Eastern Europe, and the former Soviet Union.19 So, in an early stage, the Court had a slow start together with a weak competence. In 1950, the jurisdiction of the Court was not compulsory, and neither a right of petition for individuals was provided.20 Though, the Convention system has undergone fundamental, deep, structural changes, most notably through Protocol No. 11.21 Enacted in 1998, Protocol 11 set up a single permanent Court, in place of the existing two-tier system of a Court and a Commission,22 directly accessible by citizens, and with a compulsory jurisdiction for all member States. Since then, the main competence of the Court has become that of hearing cases brought by individuals against member States; more rarely, a member State files a complaint against another.23 Notwithstanding the slow start, the ECHR has eventually grown into one of the largest, most accomplished and exemplary international judicial authorities, developing the most extensive jurisprudence in the field of the protection of human rights. The Convention, thus, has created a multilevel system of human rights protection where protection afforded by the European Court is a supplemental tool, in addition to the national judiciary systems and always depending on them. Article 35 ECHR stresses the subsidiary nature of the supervisory mechanism established by the Convention and the fundamental role national authorities must play in guaranteeing and protecting human rights at the national level.24 The subsidiary role of the Court to the national legal systems provides a justification for and strenghtens the legitimacy of reference to member States.

19 For a profile of each member States, see, http://www.coe.int/en/web/portal/country-profiles (latest access November 11, 2015). 20 As it appears from the travaux préparatoires, even the establishment of a regional court has been heatedly debated. 21 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, conventions.coe.int/Treaty/en/Treaties/Html/155.htm (latest access on November 11, 2015). Signed on 11 May 1994 and come into force on 1 November 1998. See, R. Bernhardt, ‘Reform of the Control Machinery under the European Convention on Human Rights: Protocol No. 11’, 89 American Journal of International Law, 1995, pp. 145-154. 22 In the original system, individuals had access to the Commission, which produced non-binding reports. As from October 1, 1994, Protocol No. 9 enabled individual applicants to also bring their cases before the Court, subject to the ratification by the respondent State and a screening panel of the Court accepting the case for consideration. 23 The combination of the entry into force of Protocol 11 and the Court’s expanded geographic jurisdiction have made the number of potential claimants soar to more than eight hundred million. To contrast such trend, Protocols 14 and 14bis, which come into force respectively on October 1, 2009 and June 1, 2010, has been enacted. 24 Art. 35 ECHR Admissibility criteria. ‘1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.’

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The aim of such a system of rights protection can be easily drawn from the wording of the Preamble of the Convention referring to ‘further realization of human rights’ and ‘being resolved […] to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.’25 In order to achieve such goals, the Court has taken on the power and duty to apply and interpret the Convention rights provisions in a dynamic and progressive way, designed to reflect changing standards in each contracting State.26 The Court, in fact, is an overarching body that has to operate in conjunction with national legal orders that have signed and ratified the Convention, gathering indications about the way a particular legal matter is normally dealt with ideally in each member State.27 The Court uses a simple, comprehensive comparative method for determining the state of the art in each national system. The nature and scope of Convention rights are identified, clarified, and expanded through the Court’s judgments, over time, in light of changing circumstances at the European level. A natural inclination of the Court towards comparison is easily explained. Furthermore, the open-ended nature itself of norms protecting human rights requires them to be applied only passing through a dynamic and evolutive process of interpretation.28 Human rights norms are abstract in nature and acquire a concrete meaning in the particular context in which they are invoked.

25 Preamble of the European Convention on Human Rights: ‘[…] Considering that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which the aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms; Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend; Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration; […]’ (emphasis added). Rights to be protected by the Convention have been selected from the Universal Declaration of Human Rights, which came into existence only two years earlier, in 1948. 26 The reference is to the method of evolutive interpretation, which will be deepen in the paragraphs below. 27 The reference is to the search of consensus method, but also to the margin of appreciation doctrine: they are, in fact, inversely proportional. If there is no consensus among member States, the ECHR, through the margin of appreciation doctrine, leaves up to each member State to choose the measures to implement the Convention on its territory. A well-known example of this kind of judicial deference or self-restraint is the Grand Chamber judgment in Lautsi and Others v. Italy of 18 March 2011. The Grand Chamber stated that the decision whether crucifixes should be present in classrooms was a matter falling within the margin of appreciation of the State party concerned. In general, the ECtHR respects the margin of appreciation ‘where a case raises sensitive moral or ethical issues on which no consensus has been reached between the member States’ (Speech given by Prof. Dr. Andreas Voßkuhle, President of the German Federal Constitutional Court, on the occasion of the opening of the judicial year, 31 January 2014, ‘Pyramid or Mobile? – Human Rights Protection by the European Constitutional Courts’, http://echr.coe.int/Documents/Annual_Report_ 2014_ENG.pdf, latest access November 11, 2015). 28 Note the difference between application and interpretation.

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As the Convention frequently uses general and vague formulations that necessitate ‘‘fleshing out’ through interpretation’,29 Strasbourg judges have to become active lawmakers, performing ‘an oracular function.’30 This function is inevitably not carried out in a vacuum: comparative references represent a constant persuasive source of inspiration in the decision-making process of the Court. Therefore, ‘comparative law is no longer simply an amusing puzzle’,31 rather serves the practical purposes enunciated in the Preamble of the Convention, and can or should affect the final judgment of the Court. Adopting the opposite view and analysing the influence of the ECtHR’s jurisprudence on the national level, it can be said that Convention rights have impact beyond any individual case only to the extent that national officials take into account the Court’s precedents in their own decision-making. Generally, in fact, national authorities may decide to ignore the Court’s interpretation of the Convention, even when on point, and even where Convention rights have been incorporated into the national system.32 A decisive factor seems the frequency of reliance on comparison: the more comparative references the Court makes, the more the Court’s decisions gain legitimacy and possibilities to be implemented by domestic authorities. The most recent protocol to have been opened for signature, Protocol No. 16,33 if ratified, will extend the Court’s competence to give advisory opinions. Its aim is to ‘further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention.’34 This is the reason why Dean Spielmann, President of the Court, has referred to it as the ‘Protocol of dialogue’,35 promoting the desirable transition ‘from pyramid to network.’36 Such instrument will enable highest domestic courts, in the context of cases that are pending before them, to refer requests to the Court for advisory opinions on questions of 29 E. Örücü, ‘Whither Comparativism in Human Rights Cases?’, in E. Örücü (ed.), “Judicial Comparativism in Human Rights Cases”, London, United Kingdom National Committee of Comparative Law, 2003, p. 239. 30 A. Stone Sweet, ‘On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court’, Yale Law School Faculty Scholarship Series, Paper 71, 2009, p. 5. 31 K. Dzehtsiarou, ‘Comparative Law in the Reasoning of the European Court of Human Rights’, 10 University College Dublin Law Review, 2010, pp. 109-140. 32 A. Stone Sweet, ‘On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court’, Yale Law School Faculty Scholarship Series, Paper 71, 2009, p. 4. 33 Protocol No. 16, opened for signature on 2 October 2013, http://www.echr.coe.int/Documents/Protocol_16_ENG.pdf (latest access on November 11, 2015). The Protocol will come into force after 10 ratifications. So far, only 11 member States have signed and 5 ratifications have followed (see, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=214&CM=8&DF=01/08/2014&CL=ENG, latest access on November 11, 2015). 34 Protocol No. 16, Preamble. 35 Annual Report 2014 of the European Court of Human Rights, Council of Europe, Speech given by Mr Dean Spielmann, President of the European Court of Human Rights, on the occasion of the opening of the judicial year, 31 January 2014. 36 F. Ost, M. Van de Kerchove, ‘From Pyramid to Network? For a Dialectal Theory of Law’, Brussels, Facultés Universitaires Saint Louis, 2002.

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principle concerning the interpretation or application of the rights and freedoms defined by the Convention. As an additional means of judicial dialogue, European Court’s advisory opinion will provide reasoning but will not be binding. However, if domestic highest courts do choose to rule in accordance with the Strasbourg opinion, their authority will be greatly strengthened. Cases may thus be resolved at the national level rather than being brought before the ECtHR, even though that option will remain open to the parties after the final domestic decision.37

3.4

3.4.1

Defining Comparative Interpretation

In the Context of the European Convention on Human Rights

The text of the European Convention on Human Rights does not mention comparison as a method of judicial interpretation. In fact, there are only a few international treaties or constitutional documents that explicitly allow for comparative arguments to be taken into consideration; a famous example being the South African Constitution.38 Most courts, like the Strasbourg Court, do not operate on the basis of a document that explicitly provides for taking foreign experiences into account. As a matter of fact, the Convention does not mention any method of interpretation, giving no guidance on how the Court should interpret its provisions. However, since the Convention is a multilateral international treaty, its interpretation should be governed by the general rules of interpretation as identified in the Vienna Convention on the Law of Treaties of 1969 (VCLT).39 In particular, Article 31 holds that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (Art. 31.1 VCLT). In its second and third clauses, the Article establishes what should be 37 Annual Report 2014 of the European Court of Human Rights, Council of Europe, Speech given by Mr Dean Spielmann, President of the European Court of Human Rights, on the occasion of the opening of the judicial year, 31 January 2014, p. 32. 38 Art. 39(c) of the Republic of South Africa Constitution allows (or requires, according to some scholars) the Constitutional Court to take international and other foreign experiences into account when interpreting the Constitution. Art. 39 Interpretation of Bill of Rights.’ (1) When interpreting the Bill of Rights, a court, tribunal or forum – (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’ (emphasis added). 39 The Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969, https://treaties. un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf (latest access on November 11, 2015).

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considered to constitute the ‘context’ (Art. 31.2 VCLT), and what shall be taken into account apart from the context (see in particular, Art. 31.3(c) VCLT).40 Then, Article 32 adds the possibility to recourse to supplementary means of intepretation.41 The Vienna Convention, according to Article 5, applies to ‘any treaty adopted within an international organization without prejudice to any relevant rules of the organization.’42 Such provision implies that next to the application of the general interpretation principles, the Court is entitled to develop its own methods and principles of interpretation. The legal basis for comparison is, in fact, two-folded. On the one hand, comparative method can be justified as means of interpretation in light of the international interpretative principles of the Vienna Convention. On the other hand, and for the most part, comparative method is one of the numerous interpretative guiding lines developed by the Court within the context of the European Convention itself. The Strasbourg judges have affirmed several interpretative methods or principles: among others, the evolutive interpretation, the autonomous interpretation, the margin of appreciation doctrine.43 To the purposes of the paper, only a few of these methods will be investigated and only as far as concerns their relationship with the comparative approach.

40 Article 31 VCLT, General rule of interpretation. 1. ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.’ (emphasis added). 41 Article 32 VCLT, Supplementary means of interpretation. ‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.’ (emphasis added). 42 Art. 5, The Vienna Convention on the Law of Treaties. 43 To give another example, in the Soering case, the judges elaborated the principles of practical and effective right and of teological interpretation. Soering v. United Kingdom, ECHR (1989) Series A, No. 171, Para. 87: ‘In interpreting the Convention, regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms […] Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective […] In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “‘the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society.’ (emphasis added).

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3.4.2

According to the European Court of Human Rights Case Law

The European Court of Human Rights hardly ever expressly employs the terms ‘comparative method’, ‘comparative reasoning’, ‘comparative arguments’, or ‘comparative interpretation.’ The Court does extensively discuss its use of comparison only on rare occasions, such as in the Grand Chamber judgment Demir and Baykara v. Turkey44 in 2008. The Demir Court unanimously articulated its understanding of the comparative method as follows: The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialized international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.45 Such formulation referring to a notion of emerging consensus is what probably comes closest to a definition of the comparative method in the entire case law of the Court. According to the Court, comparative method encompasses the use of all non-Convention material: both elements of international law and the practice of contracting States. Furthermore, the unanimity of the Demir decision shows once again that the application of the comparative method is far from being contested within the Court, even if the references are made to external, foreign sources (laws of third countries, or other international 44 Demir and Baykara v. Turkey, ECHR (2008), Appl. No. 34503/97. The Demir and Baykara case concerns a Turkish union for civil servants that had concluded a collective agreement with a local government, which was the employer. The local government, however, failed to meet its obligations under the collective agreement. The union went to court to try to enforce the collective agreement. The Court of Cassation determined that civil servants did not have a right to form a union and as a result they did not have the power to conclude legally binding collective agreements. The union complained in Strasbourg about a violation of their rights of freedom of association under Art. 11 ECHR. In its judgment the Court heavily relied on some provisions of the European Social Charter, which had not been ratified by Turkey. Before the Grand Chamber, Turkey objected to this practice of interpreting the Convention on the basis of instruments that the respondent government had not ratified: the Court could not ‘by means of an interpretation of the Convention, […] create for contracting States new obligations that were not provided for in the Convention.’ Before deciding on the merits, the Grand Chamber dealt with the methodological aspects of the case. The ECtHR did not extensively mention ‘comparative interpretation’, but it referred to the method as ‘interpretation in light of international texts and instruments.’ The Court concluded that in order to find the ‘consensus’, it was not necessary that the respondent State had ratified all the relevant instruments. ‘A continuous evolution in norms and principles applied in international law’ or a common ground in the member States of the Council of Europe appears to provide a sufficient basis for the Court to give a novel interpretation to one of the terms contained in the Convention. 45 Demir and Baykara v. Turkey, ECHR (2008), Appl. No. 34503/97, Para. 85. (emphasis added).

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treaties, that are outside the framework of the treaty in question) rather than to internal sources (the Convention or laws of member States, which are considered material for internal comparison). Such kind of doctrinal distinction between external and internal comparison is completely ignored by the pratice of the Court.46 As already pointed out, comparison in general is a well-accepted form of reasoning throughout the whole Court’s jurisprudence.

3.5

Comparative Interpretation as Search for Consensus

In a number of cases, comparative analysis is used by the European Court of Human Rights to determine the presence or absence of a common trend regarding a particular legal issue. It can even be argued that the comparative method in the context of the ECHR is almost the equivalent of a search for consensus, or common ground, or common denominator method. The Convention system must strive to seek a consensus among member States, considering and respecting national identities and traditions, at the same time without ever turning its back on its own guiding principles. ‘This is the dilemma constantly facing our Court’,47 stated Dean Spielmann, President of the Court, during the opening of the judicial year in 2014. Such an important relation has to be stressed. Using comparative interpretation to establish present-day circumstances48 means that the ECtHR mostly looks for a Europewide consensus to establish present-day conditions of a certain right. In other words, the laws of the contracting States will be compared in order to check whether a consensus on a certain legal issue can be found at the European level. If one examines the way the ECtHR has employed the search for consensus method in its case law, many questions arise. Are there any criteria for establishing a consensus? Are there any standards of inquiry for selecting the member States to be considered? Or are all the contracting States always considered? Accordingly, could the use of the consensus approach lead to a lower degree of protection after the accession of several new contracting 46 The ECtHR does not seem to conceive that a distinction between internal and external comparison could be relevant. While indications for such an approach can already be found in earlier judgments, the 2008 case Demir and Baykara clearly implied that this distinction does not matter. The Court was presented with the question whether the fact that a respondent State had not ratified a certain instrument mattered for comparative arguments. The Court answers that question in the negative, thus treating internal and external material in exactly the same way. 47 Annual Report 2014 of the European Court of Human Rights, Council of Europe, Speech given by Mr Dean Spielmann, President of the European Court of Human Rights, on the occasion of the opening of the judicial year, 31 January 2014. 48 Cf. Sunday Times v. United Kingdom judgment, above n. 12, and Tyrer v. United Kingdom judgment, below n. 55.

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States? Is consensus established on the basis of a simple majority or is a real unanimity needed? How does the comparison itself take place in such context? All these questions remain unanswered today. Searching for consensus seems more gathering ‘hunches about European commonality and patterns of legal, social, and moral development.’ ‘The Court’s haphazard and overly casual assertions of similarities or divergences in national laws constitute a serious weakness that undermines the legitimacy of the Court.’49 The European Court of Human Rights’ case law is not the only breeding ground for criticism on consensus. It may not come as a surprise that the use of consensus argument gives rise to conflict in any context where such a nebulous concept is used for the interpretation or application of human rights. The United States Supreme Court is one of these contexts.50 Unlike the European Court of Human Rights, a very important consideration in order to evaluate the use of consensus in the United States Supreme Court is the direct enforceability of its judgments. Accordingly, references to comparative law in the Supreme Court of United States’ reasonings are not guided by a quest for legitimacy to secure enforcement. The need for more authoritative power is an argument in support of reference to consensus by the European Court of Human Rights,51 whereas this need is much less present in the United States Supreme Court, as its judgments are directly enforceable. Rather, for the American Court, constitutional comparativism is a tool for well-informed decision-making.52 In such context, the search for consensus serves other purposes: facilitating acceptability of the outcomes, and enhancing the judges’ high esteem. Therefore, it can be argued that the criticism regarding definition and delineation of the consensus concept and methodology is much more pertinent for the European Court of Human Rights than for the United States Supreme Court.

49 P. Carozza, ‘Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights’, Scholarly Works, Paper 208, 1998, p. 1225. 50 The Roper case, for instance, has been greatly debated because it is based on an uncertain measure of what constitutes ‘the evidence of national consensus against the death penalty for juveniles’, Roper v. Simmons, 543 U.S. 551 (2005), p. 567. 51 On the contrary, when there is no clear consensus among member States, the level of acceptance of the European Court’s decision is increased by leaving to the States the margin of appreciation, thus demonstrating respect for the diversity of each national tradition. 52 K. Dzehtsiarou, V. Lukashevich, ‘Informed decision-making: the comparative endeavours of the Strasbourg Court’, 30 Netherlands Quarterly of Human Rights, 2012, pp. 272-298.

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3.6

The Comparative Approach of the European Court of Human Rights – Shared Criticism with the United States Supreme Court Comparative Interpretation and Evolutive Interpretation

In order to understand the role of comparative references in the European Court of Human Rights decisions, the role that comparative interpretation plays in relation to other methods and principles in the interpretative framework of the ECtHR should be discussed. Leaving aside the autonomous interpretation53 and the margin of appreciation doctrine,54 this section will focus on evolutive interpretation, which, for the purposes of the article, has the most significant relation with the comparative method. The evolutive interpretation, or the living instrument doctrine, is one of the best known principles of the Strasbourg case law. It expresses the idea that the Convention evolves through the intepretation of the Court in the light of ever-changing circumstances. In 1978, the Tyrer v. United Kingdom55 judgment clearly established that ‘the Convention is a living instrument which […] must be interpreted in the light of present-day conditions.’ In this way, ‘this piece of legal reasoning inaugurated the Court’s extensive use of evolutive interpretation.’56 Despite the fact that the Court is generally not inclined to justify its decisions from a theoretical point of view, critics of judicial activism claim that the Tyrer Court has been reluctant to elaborate a rationale of the living instrument doctrine.57 The facts of the controversy. On the Isle of Man, a self-governing British crown dependency, Tyrer, then aged fifteen, was subject by a policeman to the judicial corporal punishment of the bare-skin birching, prescribed by law and regularly practiced on the island. The Court uses comparative interpretation to establish present-day circumstances: birching had been abolished in the rest of United Kingdom and has never been imposed in the vast majority of the Convention States. Therefore, ‘the Court cannot but be influenced

53 The Court establishes that the European Convention is an ‘autonomous’ normative system. In other words, although the Convention draws its vocabulary from ordinary usage and from the constitutional traditions of the member States, the Court will give those words a meaning specific to the Convention, drawn from sources internal to the conventional system, such as the Court’s precedents or the object and purpose of the treaty. 54 The Court has developed the so-called ‘margin of appreciation’ doctrine, which can be defined as ‘the room for manoeuvre the judicial institutions at Strasbourg are prepared to accord national authorities in fulfilling their Convention obligations’ (S.C. Greer, ‘The Margin of Appreciation: Interpretation and Discretion Under the European Convention on Human Rights’, Vol. 88, Council of Europe, 2000, p. 5). The margin of appreciation doctrine has no basis in the Convention, but was created and developed by the Strasbourg Court. The Brighton Declaration of 20 April 2012, however, heralds the inclusion of the margin of appreciation in the Preamble to the Convention. In Brighton, the Council of Europe has presented Protocol No. 15 to the Convention, which incorporates into the Preamble to the Convention a reference to the principle of subsidiarity and the doctrine of the margin of appreciation (Art. 1 of Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms). 55 Tyrer v. United Kingdom, April 25, 1978, Series A, No. 26. 56 G. Letsas, ‘A Theory of Interpretation of the European Court of Human Rights’, Oxford University Press, 2007, p. 76. 57 A. Mowbray, ‘The Creativity of the European Court of Human Rights’, 5 Human Rights L. Rev., 2005, pp. 60-61.

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by the developments and commonly accepted standards in the penal policy of the member States.’58 Notwithstanding, according to the defense, the corporal punishment could not be considered degrading for juveniles as ‘it did not outrage public opinion in the Isle of Man’,59 the Court held Tyrer’s birching to constitute degrading treatment violating Article 3 ECHR. The close relation between comparative interpretation and evolutive interpretation cannot be discarded: comparative interpretation is the best tool to use to provide the evidence that is needed to substantiate an evolutive interpretation. In 2009, in Scoppola v. Italy (No. 2)60 concerning the right to a fair trial (Art. 6 ECHR), the Court makes its first attempt to illustrate the rationale for the evolutive interpretation. Since the Convention is first and foremost a system for the protection of human rights, the Court must […] have regard to the changing conditions in the respondent State and in the Contracting States in general and respond, for example, to any emerging consensus as to the standards to be achieved […]. It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.61

3.7

Process of Comparison in the European Court of Human Rights

Within the European Court of Human Rights, comparative research has usually taken place in a rather informal manner, depending on the personal knowledge and willingness of the judges themselves. In recent years, instead, a research unit dedicated to comparative studies has been established. The Court now has a Research Division, a department within the Court’s Registry,62 which is designed to undertake comparative analysis following the request of the Judge Rapporteur.63 Lawyers from the department send requests to national lawyers working within the Registry commissioning a report on the way a particular legal issue is dealt with by their national legislation. Then, each national report is signed by the judge of the Court elected in respect of the country concerned. Afterwards, the national 58 59 60 61 62

Tyrer v. United Kingdom, above n. 55, Para. 31. Ibid. Scoppola v. Italy (No. 2), ECtHR (2009), Appl. No. 10249/03. Scoppola v. Italy (No. 2), above n. 60, Para. 104. (emphasis added). For the functions and organization of the Registry, see, http://www.echr.coe.int/pages/home.aspx?p=court/ howitworks&c= (latest access on November 11, 2015). 63 According to Rule 49 of the Rules of Court, a Judge Rapporteur is the judge who examines the application and is appointed by the President of the section to which the case has been assigned. For the Rules of Court, see, http://www.echr.coe.int/Documents/Rules_Court_ENG.pdf (latest access on November 11, 2015).

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reports are compiled by the Research Division in a composite report which is then sent to the Judge Rapporteur. Even if the Strasbourg Court is potentially in a more advantageous position than a domestic high court, like the United States Supreme Court, being provided of a more scientific approach, there are still some limitations. First, the reports are confidential and not accessible to the general public, and often they are not even cited in the judicial reasonings so that the decision results not informed. Second, it is not entirely clear whether this research unit is sufficiently equipped to undertake thorough and exhaustive comparative studies; in particular, it has to be noted that systematic studies are mostly conducted in respect to cases to be decided by the Grand Chamber, which only constitute a small proportion of all the cases decided by the Court.64 Third, the lawyers and the judges of the Court cannot specialise in all of the particular legal areas under review. Alternative sources of information can mitigate the possible limitations of the research conducted by the Court. The role of the parties and the third parties, like NGOs,65 universities,66 non-respondant governments,67 should not be forgotten. The Court’s practice of considering third parties’ submissions and other sources of information should be welcomed as they collectively can provide a multifaceted description of a given legal issue. ‘In any decision-making process, the greater the amount of information and views considered, the greater the chance for a good outcome.’68 Last, due to the heavy workload of the Court,69 it is extremely burdensome for the lawyers to engage in lenghty and detailed research on a particular legal topic.70

64 The initiation of proceedings before the Grand Chamber takes two different forms: referral and relinquishment. After a Chamber judgment has been delivered, the parties may request referral of the case to the Grand Chamber and such requests are accepted on an exceptional basis. Cases are also sent to the Grand Chamber when relinquished by a Chamber, although this is also exceptional. At its last meeting (Monday 16 February 2015), the Grand Chamber panel of five judges decided to refer two cases and to reject requests to refer 19 other cases. See, Grand Chamber’s Panel Decisions, ECHR 057 (2015) 17.02.2015, http://hudoc.echr. coe.int/webservices/content/pdf/003-5016676-6159979 (latest access November 11, 2015). At its previous meeting (Monday 14 April 2014), the Grand Chamber panel of five judges decided to refer four cases and to reject requests to refer 14 other cases. See, Grand Chamber’s Panel Decisions, ECHR 105 (2014) 16.04.2014, http://hudoc.echr.coe.int/webservices/content/pdf/003-4735701-5755259 (latest access November 11, 2015). 65 KU v. Finland, ECtHR [2009], Appl. No. 2872/02, Paras. 33-34. 66 Z and others v. UK, ECtHR [2001], Appl. No. 29392/95, Para. 7. 67 Lautsi v. Italy, ECtHR [2011], Appl. No. 30814/06, Paras. 47-49. 68 G.C. Umbricht, ‘An ‘Amicus Curiae Brief’” on Amicus Curiae Briefs at the WTO’, Journal of International Economic Law, Vol. 4, No. 4, 2001, pp. 773-794, p. 774. 69 The total number of pending applications was 69,900 in 2014; 99,900 in 2013; 128,100 in 2012; 151,600 in 2011. Even if it is steadily diminuishing, the number of cases remains enormous. 70 In 2014 the Division prepared a total of 56 reports: 22 on the Court’s case-law, 15 on international law and 19 on comparative law. See, Annual Report 2014 of the Council of Europe, above n. 35, p. 72.

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3.8

Justifying the Recourse to Comparative Interpretation

Manifold justifications can be adduced in favour of the use of comparative arguments in judicial reasoning; and they have long been discussed in a general fashion in the constitutional debate of the past two decades.71 Probably, more than one of the purposes discussed in a theoretical manner can be found important for the ECtHR. The next section will identify the purposes considered particularly relevant in the context of the Court or elaborated by the Court itself.

3.8.1

A ECHR-Oriented Means of Justification: the Common European Tradition

The forementioned Preamble of the Convention describes the treaty as an agreement among ‘the Governments of European Countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law.’72 The norms of the Convention were drawn originally from such common European tradition, creating a system of rules which, in turn, become part of and nourish the same common heritage. The idea of a common European tradition provides some justification for the European Court to make comparative references, although it seems to give a theoretical foundation only for the internal component of comparative interpretation. The reference to European countries and their common heritage cannot really be seen as a basis for invoking references from outside the context of the European Convention. On the other hand, the text of the Convention does not seem to provide any other basis for relying on the external component of comparative interpretation. The question remains whether the ECtHR, instead, provides in its reasoning a rationale for the external component of comparative interpretation.

3.8.2

Another ECtHR-Oriented Means of Justification: Promoting Effective Implementation

A second, very different type of justification focuses less on the historical traditions, and more on the current social, legal, political situation in the member States: the effective implementation and perceived legitimacy of the Court’s judgments depend only on acceptance at the national level.

71 See, e.g., B. Markesinis, J. Fedtke, ‘Judicial Recourse to Foreign Law: A New Source of Inspiration?’, Routledge, 2006. 72 ECHR, Preamble, above n. 25.

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A European judgment can be ignored by domestic authorities. It is a sound hypothesis that seeking to ground decisions, especially the more controversial ones, in the practice of the member States can help enhance the trust in the Court’s decisions. Furthermore, by apparently displacing the source of developing norms from the personal opinions of judges on the Court to the consensus shared among the European States, the comparative exercise protects the Court from charges of overreaching judicial activism.

3.8.3

A Means of Conferring Objectivity and Authority

Comparative arguments may be also used to indicate that other judges in similar cases have considered a similar solution; in so doing, the attempt would be to objectify the chosen solution in a specific case. A slightly different way of viewing such purpose would argue that sometimes foreign citations can add authority or prestige to a particular decision. Especially in the past, when American constitutionalism was the model for the rest of the world, different courts, in particular of the so-called emerging democracies, have included in their decisions references to the United States Supreme Court’s case law as a way to enhance the force of their arguments.73

3.8.4

A Means of Keeping Up with Evolving Standards

A fourth reason of resorting to comparative interpretation is keeping up with evolving national and international standards. Such purpose motivated the comparative openness of some well-known Eighth Amendment cases decided before the United States Supreme Court. In Roper v. Simmons,74 for instance, the Justices had to address the question whether it was constitutional to

73 See, C. L’Heureux-Dubé, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court’, 34 Tulsa L. J., 1998, p. 18: ‘As the bonds of colonialism loosened, the prominence of American jurisprudence grew throughout the world. This is particularly true in the field of constitutionalism and human rights. The very concept of judicial review of legislation in accordance with guaranteed rights originated in the US Supreme Court, in the classic case of Marbury v. Madison.’ 74 Roper v. Simmons, 543 U.S. 551 (2005). ‘Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling for the task of interpreting the Eight Amendment remains our responsibility. [reference is also made to the United Nations on the Rights of the Child] […] only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. In sum it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty […] The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.’. (emphasis added).

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impose the death penalty on a juvenile offender who was at the time of committing the crime older than fifteen, but younger than eighteen. The reference to the ‘opinion of the world community’ in the reasoning of the Roper Court has been deeply contested as it has been accused to be used as principal justification of the decision, and even more so since the alleged world opinion is not so clear-cut as could be on other questions, such as whether or not birching is to be considered inhuman and degrading treatment.75 In the European context, a similar search for consensus seems to be less controversial. On the contrary, the existence of a consensus among contracting States might increase the acceptance of an interpretation provided by the ECtHR. It helps to build a bridge between the national and international level by engaging the member States in the decision-making process. But, in the absence of a European consensus, it occurs that also the ECtHR appeals to a ‘continuing international trend’,76 for instance in favour of the social acceptance and legal recognition of transsexuals as in the Goodwin v. United Kingdom case.

3.8.5

A Means of Evolutive Interpretation

A final justification provided for looking at comparative material from both the contracting and non-contracting States is based on the link between evolutive and comparative interpretation. The principle of evolutive interpretation is invoked to justify the use of comparative arguments. The idea that evolutive interpretation helps the ECtHR to keep pace with developments within the Council of Europe can be supported as a justification for the use of member States’ material. This explanation is, however, far less convincing when developments at the international level or developments in non-contracting States, such as the United States of America, are mentioned. A separate justification that explains the relevance of looking at these non-Convention materials would be desirable. Similar considerations may be put forward for the United States context. References to foreign law makes sense when a constitution is being regarded as a living document, which should be interpreted according to a broad set of sources. In sum, the European Court of Human Rights has relied on comparative arguments for a variety of reasons. However, these justifications are usually somewhat succinctly mentioned and it should be questioned whether they suffice to legitimize the use of comparative method by the Court. These concerns are by no means limited to the European context, and are likely to be more pronounced outside of it. In fact, although part of these justifications have some merit in explaining the ECtHR’s reliance on comparison, they seems to 75 Cf., Tyrer v. United Kingdom, above n. 55. 76 Goodwin v. United Kingdom, ECtHR (2005), Para. 85.

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fail to address some of the basic questions raised by the use of comparative references more generally.

3.9

Shared Criticism between the European Court of Human Rights and the United States Supreme Court

All along the article, there have already been given some hints on the ‘shared criticism’ mentioned in the title. Concluding, it would be useful to sum them up. The major debate surrouding the intepretation of human rights provisions using comparative approach involves two interconnected questions: 1. a methodological one: the how question. How can judges identify and reflect the changing conditions of societies when interpreting rights provisions? 2. a conceptual one: the why question. Should they do so at all? This twofold debate has featured prominently in the case law and literature surrounding both the European Convention on Human Rights and the Bill of Rights of the United States Constitution.

3.9.1

The ‘How’ Question

There are serious methodological concerns regarding comparative interpretation. The problem is that no consistent application of this method has been developed, which leads to any sorts of criticism. The major problem is related to the process of selecting the relevant sources. The question is how judges can select foreign sources without being accused of ‘looking over the heads of the crowd and picking out his friends.’77 This phenomenon has also been described as the risk of ‘cherry-picking’, which refers to the fact that, without any guidance on where to look, judges can simply pick the references that support their own opinion and use these references as a justification for a result already decided. Certainly, it is impossible for judges to analyse every relevant national judgment or piece of legislation, not only because of a mere lack of time, but also due to lack of accessibility. Therefore, a certain amount of selectivity will always be present in any use of com-

77 The quotation, with respect to legislative history, is from P.M. Wald, ‘Some Observations on the Use of Legislative History in the 1981 Supreme Court Term’, 68 Iowa L. Rev., 1983, p. 214: ‘It sometimes seems that citing legislative history is still, as my late colleague [Judge] Harold Leventhal once observed, akin to ‘looking over a crowd and picking out your friends.’ Extended to comparative constitutional law by Justice Stephen Breyer in a debate with Antonin Scalia over whether the United States Supreme Court should look to foreign law in making its decision, the same point applies.

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parative interpretation as well as a certain amount of subjectivity will always be present in any judicial decision-making process. The question is, however, how to avoid accusations of deliberate cherry-picking, that can ultimately affect the legitimacy of the method itself, bringing the debate straight to the conceptual issue.78 The problem of deliberate cherry-picking has been noted as one of the major concerns about this method in the European national and supranational courts as well as in the United States Supreme Court. A different issue is related to the risk of misunderstanding or misinterpreting foreign materials. Even leaving the language obstacles aside, it is difficult to correctly comprehend legal concepts elaborated in a foreign system. And a correct understanding does not only require knowledge of the foreign legal system, but also an understanding of the particular social, cultural and political context of that legal system. If such an obstacle can be overcome within the ECtHR due to the establishment of the Research Division, it remains a major problem for the American Justices. However, the common issue that arises is whether the court in question has sufficient resources to undertake a thorough examination of the comparative materials.79 One further category of methodological criticism is directed at the specific way comparative interpretation is used in order to find a consensus. As mentioned above, this criticism has mainly been expressed in the context of the European Court of Human Rights. A peculiar ECtHR problem is that the search for a consensus in practice does not entail that there should be absolute agreement among all the consulted sources, nor that all member States have to adhere to the same practice. As a result, member States who belong to a numerical minority could be forced to adhere to an interpretation that is based on the practice in other member States that together form some kind of majority. If only a limited number of member States can constitute a ‘consensus’, this could be problematic for reasons of state sovereignty and legitimacy that have been referred to above. The major common concerns are that it is unclear how a consensus will be established, which countries will be taken into consideration, what is being compared, what is necessary to constitute a consensus, and what are the consequences of finding a consensus. A lack of transparency on how judges employ this form of comparative reasoning may result once again in an accusation of cherry-picking.

3.9.2

The ‘Why’ Question

In national context, many scholars and judges argue that invoking foreign materials constitutes a threat to the sovereignty of the legal system to which the court employing these 78 See, G. Zagrebelsky. 79 See above, the criticism related to the Research Division of the ECtHR.

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references belongs. Critics appear to be mainly concerned about the lack of democratic legitimacy of these foreign materials, which ‘have no democratic provenance, no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials.’80 For the ECtHR, a different version of such criticism has emerged. If the European judges invoke references to international and foreign materials and use them as a basis for a far-reaching or controversial interpretation, they run the risk that member States will complain about introducing obligations that they never agreed to. The second and major objection put forward by opponents of the use of comparative arguments concerns the role of the judge and judicial activism. The main concern with evolutive and comparative interpretation, again in both the national and international context, is that the judge should not overstep its role. In the United States, there is a wide debate also in relation to the theories of constitutional interpretation underlying the choice of the interpretative method: the well-known living constitution versus originalism dispute. Since its very early days, the European Court has been criticised for having installed a ‘gouvernement des juges.’81 This criticism reached higher peeks during the past few years and culminated in the Brighton Declaration.82 The Brighton Declaration embodies a call for judicial restraint from the Court and consequently more deference to the contracting States’ sovereignty; to that effect, the Committee of Ministers was invited to include the margin of appreciation in the Preamble of the Convention. As already said, this inclusion does not impose an obligation for the Court to apply the doctrine, but only creates a general principle of interpretation. In conclusion, any comparative endeavour should necessarily comply with the high standards of methodological rigour, consistency, and expertise. In order for the comparative analysis to achieve its intended effect, it must not only demonstrate awareness of the different foreign realities but also be supported by an adequate analytical apparatus. Furthermore, to quote Alford, ‘if at all, ‘constitutional comparativism’ at least needs an underlying theory.’83 These remarks apply to both the European Court of Human Rights and United States Supreme Court, as well as to any court referring to foreign law.

80 N. Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Stephen Breyer’, 3 Int’l J. Const. L., 2005. 81 Such an expression has been used for the first time by Eduard Lambert in ‘Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis’ in 1921. 82 High Level Conference on the Future of the European Court of Human Rights, 19-20 April 2012, http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf (latest access on November 11, 2015). 83 R. Alford, ‘In search of a theory for constitutional comparativism’, 52 UCLA Law Review, 2005.

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The combined analysis of the European and United States comparative approach, two different courts sharing similar problems, should have set a new scene for the resolution of old problems. The article has started to lay the foundations: the elaboration of possible solutions to such criticism is open to debate and left to deepen in future research.

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Gábor Kecskés* ‘the Optional Protocol represents a veritable milestone in the history of universal human rights, making a strong and unequivocal statement about the equal value and importance of all human rights and the need for strengthened legal protection of economic, social and cultural rights. It will move us closer to the unified vision of human rights of the Universal Declaration.’ United Nations High Commissioner for Human Rights, Navi Pillay, in address to the United Nations General Assembly, 10 December 2008

4.1

Introduction

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights entered into force on 5 May 2013. The previous laconic wording referred to a normal and accustomed as well as promising development within the field of human rights law. However, the special and unique enforcement and promotion mechanism of these rights in general deserve to be evolved in detail due to the uncertain and problematic ways of their justiciability. A popular, almost commonplace conjecture says that the second generation of human rights1 cannot be enforced in the same way as those of the first generation, namely civil and political rights. This article will describe the circumstances of the entry into force of the Protocol, then survey the prospects and obstacles of the justiciability of socio-economic rights through the practice of the Committee on Economic, Social and Cultural Rights (hereinafter: Committee). It must hereby be clarified that economic, social and cultural rights as a corpus of human rights are equivalent to the debated term ‘second generation of human rights’ or ‘second-generation human rights’ including ‘socio-economic

* 1

Research fellow, Hungarian Academy of Sciences Centre for Social Sciences, Institute for Legal Studies; senior lecturer, Széchenyi István University (Hungary), PhD. (Széchenyi István University, Hungary). On the generations of human rights, see, K. Vašak, ‘Human Rights: A Thirty-Year Struggle: the Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’, UNESCO Courier, Vol. 30, No. 11, 1977, pp. 316-325 and E. Engle, ‘Universal Human Rights: A Generational History’, Annual Survey of International and Comparative Law, Vol. 12, Issue 1, 2006, pp. 219-268.

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rights’. These phrases will be used either as socio-economic rights or economic, social and cultural rights. Following from its subject matter, the tone and approach of this study is both descriptive and critical, as it takes into account the inherent content of these rights, including elements considered to be adverse to the direct adjudication of economic, social and cultural rights. However, the article seeks to emphasize the research question on the hindrances of justiciability of such rights stemming from their financial character and the positive contribution on the side of the states. The research aims to review the comprehensive assessment on the pro- and contra-justiciability arguments by highlighting (and on the other hand, it is worth noting to avoid the empty and inexpressive predictions on the pending or future complaints) those factors and factual circumstances which can easily hinder the enforcement of the socio-economic rights. The entry into force of the Optional Protocol and subsequently the first pending three complaints (as of July 2015) may give a chance to conclude the first but not final observations on the justiciability of these rights in practice before the competent monitoring human rights body.

4.2

The History of the International Instrument in Question

The individual complaint mechanism was actually familiar to the international community before the 2013 Protocol as the protection system of the civil and political rights included the 1966 Optional Protocol to the International Covenant on Civil and Political Rights (entered into force in 1976).2 However, while the justiciability of civil and political rights in comparison with economic, social and cultural rights is obvious and well articulated (due to the simple fact that ideally the former requires negative, restraint-based, laissezfaire obligation from states), the desire for an analogous system to protect the economic, social and cultural rights have been pending for decades. The Vienna Declaration and Programme of Action (adopted by the 1993 World Conference on Human Rights, ‘encouraged the Commission on Human Rights to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights.’3 The first major milestone was the decision of the then newly established body, the Human Rights Council, to set up an Open-ended Working Group in 20064 to prepare the draft version of a treaty dealing with the complaint mechanism related to socio-economic rights. After a nearly two-year codification process, the Optional Protocol to the Interna2

3 4

Regarding the role of this method, see generally, A.R. Harrington, ‘Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties’, Duke Journal of Comparative & International Law, Vol. 22, 2012, pp. 153-182. See, Res. 8/2 of the Human Rights Council. A/HRC/RES/8/2, 18 June 2008. See, Res. 1/3 of the Human Rights Council (Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights). A/HRC/RES/1/3, 29 June 2006.

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tional Covenant on Economic, Social and Cultural Rights was adopted by the United Nations General Assembly during its 63rd plenary session on 10 December 2008. Resolution A/RES/63/117, which was fittingly passed on Human Rights Day, i.e. the 60th anniversary of the adoption of the Universal Declaration of Human Rights, opened for signature almost a year later on 24 September 20095 and entered into force on 5 May 2013 after being ratified by the tenth signatory Uruguay.6 In accordance with its Article 17, the Optional Protocol shall be open for signature by any state that has signed, ratified or acceded to the International Covenant on Economic, Social and Cultural Rights. As of 10 October 2014, 45 states have signed the Protocol and 20 states have ratified it.7 Hungary (as a Contracting Party to the International Covenant) has neither ratified nor signed the Optional Protocol (as of October 2014). The major achievement of the Optional Protocol has been a paradigm shift towards the acceptance and recognition of the enforcement of socio-economic rights through individual complaints. Before 5 May 2013, there had been significant skepticism about the possibility of applying complaints against the violation of socio-economic rights, these being political commitments and entitlements (entailing self-imposed and firm financial as well as institutional capacities of states) rather than negative and protective obligations of states towards the individual, upon which freedom rights are based. Since May 2013, it has been theoretically and practically possible for individuals to submit complaints against states for the breach of their rights granted by the International Covenant on Economic, Social and Cultural Rights (chiefly the ‘substantive parts’, i.e. Arts. 6-15). Thus, this major achievement is, in itself, a notable step towards the complaint mechanism of social, economic and cultural rights against states before international treaty-based bodies. This is the reason why the entry into force of the Protocol is hereby labelled as a paradigm shift. Furthermore, the introduction of such mechanism could give a huge impetus via its modellike procedure to the domestic justiciability and enforcement of the given rights. The following chapters shall review the characteristics and enforceability of socioeconomic rights, the likely effect of the individual complaint mechanism on such rights and the potential of this protection system, which is new yet not unprecedented: see the 1966 Optional Protocol to the International Covenant on Civil and Political Rights. 5

6

7

On the striving towards the Protocol prior to 2009, cf., C. de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights-The Missing Piece of the International Bill of Human Rights’, Human Rights Quarterly, Vol. 32, 2010, pp. 144-178. and A. Vandenbogaerde & W. Vandenhole, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process’, Human Rights Law Review, Vol. 10, No. 2, pp. 207-237. See, Art. 18 of the Optional Protocol on the entry into force. The first ten ratifying states are the following: Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, Spain and Uruguay. Afterwards, 10 states (Belgium, Cape Verde, Costa Rica, Italy, Finland, France, Gabon, Luxembourg, Montenegro and Niger) ratified it (until July 2015). https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en.

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4.3

Economic, Social and Cultural Rights Enforceable by Judicial and Quasi-Judicial Means?

In order to evaluate the effect of the Optional Protocol, the characteristics and unique vagueness of the economic, social and cultural rights shall first be reviewed.8 The weakness of the justiciability of such rights will be traced back to the inherent characteristics of socioeconomic rights. After analyzing the nature of these rights, this chapter will deal with the factors supporting and impeding the enforcement of economic, social and cultural rights. The present article must hereby admit the statement of Donoho irrespective of the fact that since then (2006) the Optional Protocol entered into force with a small number of State Parties: [T]he enforcement remains the weakest component of the international human rights system. Designed around the implausible premise of voluntary state compliance, existing international institutions outside of Europe currently lack the capacity to meaningfully enforce human rights in a world characterized by conflict and diversity.9

4.3.1

The Nature of the Economic, Social and Cultural of Human Rights

In order to analyze the nature and character of socio-economic rights,10 this in-depth survey will include i) a catalogue of these rights; ii) their particular aims and legal characters; iii) the positive contribution of states and iv) the relationship between socio-economic and civil and political human rights. The task can partly be fulfilled on the basis of the 1966 International Covenant on Economic, Social and Cultural Rights11 and the numerous instruments linked to this system (such as the general comments adopted by the Committee on Economic, Social and Cultural Rights). However, the covenant is still silent about many crucial issues that are unavoidable if one is to give adequate answers to the emerging discrepancies concerning the entirety of such rights. Accurate knowledge of the nature of 8

From the early literature on such rights, cf., E.W. Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’, Netherlands Yearbook of International Law, Vol. 9, 1978, pp. 69-105. Later, a landmark publication on such rights: A. Eide & C. Krause & A. Rosas (Eds.), Economic, Social and Cultural Rights, Martinus Nijhoff Publications, Dordrecht, 2001, pp. 3-28. 9 Cf., D. Donoho, ‘Human Rights Enforcement in the Twenty-First Century’, Georgia Journal of International and Comparative Law, Vol. 35, No. 1, 2006, p. 52. 10 On these rights from the viewpoint of a novel volume of articles, see generally, E. Riedel & G. Giacca & C. Golay (Eds.), Economic, Social, and Cultural Rights in International Law. Contemporary Issues and Challenges, Oxford University Press, Oxford, 2014, p. 560. 11 Regarding the 1966 Covenant through the lenses of its almost half century functioning, cf., B. Saul & D. Kinley & J. Mowbray (Eds.), The International Covenant on Economic, Social and Cultural Rights. Commentary, Cases, and Materials, Oxford University Press, Oxford, 2014, p. 1360.

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these rights is of primary importance, since the assessment of individual complaints will be based upon the same argument as the assessment of the nature and protection of socioeconomic rights. A Catalogue of Economic, Social and Cultural Rights As a starting point, a list of enforceable rights or rights that may form the basis of complaints shall be comprehensively enumerated. The catalogue of economic, social and cultural rights is utterly heterogeneous and the codified and hereinafter listed rights include other inherent, derived rights. (Concerning their wider content, the general comments of the Committee provide relevant instruments, thus this list is only meant to provide examples.) – This study intends to persist and assume the exclusive list of socio-economic rights according to the 1966 ‘second’ Covenant (which is based upon the similar list of rights set forth in the Universal Declaration of Human Rights)12 due to the mere fact that this is the basis on which individual complaints shall be presented in the case of violations, their content verified and segmented by the Committee in official general comments. These rights are the following (such enumerated rights allow the 2008 Optional Protocol be applied and complaints be lodged):13 – right to work and its derivatives or satellite rights (Arts. 6 and 7);14 – right of trade unions (Art. 8);15 – right of everyone to social security, including social insurance (Art. 9);16 – right of everyone to an adequate standard of living for oneself and his/her family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Art. 11);17 – right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Art. 12);18

12 See, Arts. 22-28 of the Universal Declaration of Human Rights. 13 The present catalogue can be found in the Covenant; however, different, effective as well as more precised catalogues appear within the text of certain regional treaties, such as the European Social Charter (Arts. 119) and the San Salvador Protocol to the American Convention on Human Rights (Arts. 6-18). 14 See, General Comment No. 18: Art. 6 of the International Covenant on Economic, Social and Cultural Rights. E/C.12/GC/18, 6 February 2006. 15 However, trade union rights are considered to be civil and political rights. 16 See, General Comment No. 19: The right to social security. E/C.12/GC/19, 4 February 2008. 17 See, General Comment No. 7: The right to adequate housing (20 May 1997); General Comment No. 12: The right to adequate food. E/C.12/1999/5, 12 May 1999. On the justiciability of such derivative rights, see, M.J. Dennis & D.P. Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’, American Journal of International Law, Vol. 98, No. 3, 2004, pp. 462-515. 18 See, General Comment No. 5: Persons with disabilities (1 January 1995); General Comment No. 6: The economic, social and cultural rights of older persons (7 October 1996); General Comment No. 14: The right to the highest attainable standard of health. E/C.12/2000/4, 11 August 2000; General Comment No. 15: The right to water. E/C.12/2002/11, 20 January 2003.

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Gábor Kecskés – right to education (Art. 13);19 – right of everyone: (a) to take part in cultural life; (b) to enjoy the benefits of scientific progress and its applications; (c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (Art. 15).20 The majority of the above-mentioned rights is either abstract and vague or seem to be political objectives and demands in legal disguise (including the general comments aiming to unfold the meaning of such abstract goals). Thus, the threshold for accepting individual complaints shall be framed and limited, because it goes without further explanation that the unemployed cannot make complaints against their states referring to the alleged violation of the right to work (Art. 6). The exact meaning and scope of economic, social and cultural rights cannot, consequently, be translated into exact and specific rights of individuals and the obligations of the state as ‘supplier and provider.’ This obstacle is the main weakness of adjudication within the field under analysis. The Legal Character of Such Rights – Goals of the State, Entitlements or Rights The vague content of socio-economic rights causes the competent bodies (primarily the Committee) to reinterpret their legal basis and content time and again. The wording of these rights in the 1966 Covenant reminds us of purely political objectives, goals of states – desires of the supreme sovereign, as it were. Programme-designing and policy-standardizing phrasing methods are apparent in the articles on the protected rights. The character of State obligations within the field of socio-economic rights is invoked by Article 2 of the Covenant, as the State ‘undertakes to take steps […] to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.’ The unique legal character of such rights is primarily determined by two phases of the previous citation, namely the limit for the State ‘to the maximum of its available resources’ and the ‘progressive realization’ of the rights set forth in the Covenant.21 This study intends to emphasize that three potential interpretation domains can be mentioned relating to this issue: i) firstly, which rights are only goals of the State (without the opportunity to be legally enforced or the violation

19 See, General Comment No. 13: The right to education. E/C.12/1999/10, 8 December 1999; General Comment No. 11: Plans of action for primary education. E/C.12/1999/4, 10 May 1999. 20 See, General Comment No. 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author. E/C.12/GC/17, 12 January 2006; General Comment No. 21: Right of everyone to take part in cultural life. E/C.12/GC/21, 21 December 2009. 21 On the progressive realization in the light of monitoring requirements from the pre-Optional Protocol era, see, A.R. Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly, Vol. 18, No. 1, 1996, pp. 29-36.

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redressed), ii) secondly, which are rather entitlements (as a benefaction afforded by the state) without the positive duty with a sanction to ensure them towards individuals; iii) thirdly which socio-economic rights are real rights, whose scope is unambiguous, with states obliged to fulfil them and whose breaches are compensated for. The latter would be the most desired rights in international human rights law. The author is of the opinion that economic, social and cultural rights are predominantly (though not exclusively) a mixture of the three types. However, it must be stated that the Optional Protocol transformed an essentially two-tier system – aim and entitlement – into a three-tier system (aim-entitlement-right) by providing a real phase for justiciability and enforcement for individuals. Such programme-like rights are very heterogeneous; therefore specifications vary significantly from right to right. For instance, the right to work or education are rather firm goals of states, while the right of everyone to social security and adequate standard of living are essentially entitlement-based ‘donations’ of the sovereign. Positive Financial Contribution – Obligation to Recognize and Progressively Implement The role of states in guaranteeing such rights is interlinked with the preceding two paragraphs. Furthermore, in the 1960s, when the permanent economic development seemed to be eternal, there was a definite basis for step by step implementation. Since the late 1970s […] because of the effects of globalisation more and more questions have been raised about the ability of the state to secure social rights properly.22 Unlike the civil and political rights – that require a rather negative and self-restrained attitude from states –, social, economic and cultural rights cannot be guaranteed without positive, intense, mainly financial state intervention. This issue raises the three key questions of recognition/identification, progressive implementation and enforcement/fulfilment of such rights.23 The Covenant and the Optional Protocol demand the respect and recognition of such rights, which are considered to be the simplest tasks by states but the rights respected and recognized at this phase turn out to be merely ‘paper rights’ for the individual. By ratification, the Contracting Parties identify the above-listed rights and then implement them into their legal system. However, the first step of recognition is a prerequisite of the further agenda in ordaining these rights in practice and it is considered to be the lowest level State obligation aiming to achieve immediate application and implementation within 22 See, G. Kardos, ‘Universal Justification for Social Rights’, Miskolc Journal of International Law, Vol. 6, No. 1, 2009, p. 21. 23 This clear distinction had firstly been elaborated by Asbjørn Eide in an official document. See, The Right to Adequate Food as a Human Right, Report prepared by Asbjørn Eide, Final Report, E/CN.4/Sub.2/1987/23, 7 July 1987.

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its domestic political and legal system. The next two steps (progressive implementation and enforcement/fulfilment) are of crucial importance in showing the way to transforming the identified rights into enforceable state obligations. The methods and levels of state intervention are highly diversified, heterogeneous and uncertain. In its General Comment No. 3 on The Nature of States Parties’ Obligations,24 the Committee recognized in 1990 that ‘in many instances legislation is highly desirable and in some cases may even be indispensable.’25 Moreover, the Committee has argued (Para. 4) that legislation is not sufficient: the adoption of administrative, economic, financial, educational and social measures, the establishment of action programs, the creation of appropriate bodies and the establishment of (judicial and quasi-judicial) procedures may equally be necessary. Regarding the core elements of the financial-based ‘all available resources’ phrase, the General Comment No. 3, Para. 10 underlines the State obligation to demonstrate ‘that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.’ Undoubtedly, a similar abstract word usage shall be unfolded in detail, which was more or less pinpointed in two non-binding documents. The non-binding 1987 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter: Limburg Principles) laid down that the achievement of economic, social and cultural rights may be realized in a variety of political settings, and there is no single road to their full realization (Para. 6); however, States parties must at all times act in good faith to fulfil the obligations (Para. 7), and at the national level State Parties shall use all appropriate means, including legislative, administrative, judicial, economic, social and educational measures, consistent with the nature of the rights in order to fulfil their obligations under the Covenant, though legislative measures alone are not sufficient (Paras. 17-18). After 10 years, the 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (hereinafter: Maastricht Guidelines) goes beyond with its ‘reasonable calculation’ formula, when setting out that: the obligations to respect, protect and fulfil each contain elements of obligation of conduct and obligation of result. The obligation of conduct requires action reasonably calculated to realize the enjoyment of a particular right. […] The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard.26 24 See, General Comment No. 3: The nature of States parties’ obligations (1 January 1991). 25 Moreover, in the fields such as ‘health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in Arts. 6 to 9, legislation may also be an indispensable element for many purposes.’ See, General Comment No. 3, Para. 3. 26 See, Maastricht Guidelines, Para. 7.

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The vague terms of minimum core obligations27 and universal minimum standards enhance the approximate meaning of these financial and positive obligations, as the violations of the Covenant occur when a state fails to satisfy what the Committee has referred to as ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights.’ (Maastricht Guidelines, Paras. 8-9).28 In sum, an apt remark clearly shows the controversial role of the positive state contribution: ‘if the second […] generations of rights are to be implemented, they require an interventionist government – exactly the type of government that first-generation rights sought to protect against, even avoid.’29 Are Economic, Social and Cultural Rights the Prerequisites of Civil and Political Rights? Neither the prerequisite approach nor the clear separation theory prevails convincingly concerning the relationship of the civil-political and socio-economic rights. The common root, the Universal Declaration on Human Rights contains both under one, though not binding instrument and proposes a collective pool of rights without any hierarchy. The citing of human needs as a precondition for civil and political rights (e.g. without the protection of an adequate standard of living, no one can enjoy the right of assembly or vote, etc.) seems to be trivial and goes beyond the limits of evaluating a ranking for human rights. The mother right is the right to human dignity and it is worth mentioning that the conditions of existential minimum of dignity derived from the economic, social and cultural rights. The characteristics of human rights are based upon the history, state attitudes (both relevant and dominant) as well as the nature of obligation of such non-simultaneously established rights rather than on the importance of human rights. This interrelatedness is clearly shown by the 1968 Teheran Conference on Human Rights, where the well-known declaration had been put forward, as ‘in our day political rights without social rights, justice under law without social justice, and political democracy without economic democracy no longer have any true meaning.’30 Even more, at the end of the Cold War period (throughout which the recognition of civil-political and socio-economic rights had been deeply determined by the political affiliation of states in the West31 and East), the 1993 World Conference on Human Rights held in Vienna reaffirmed the main notion on the

27 Cf., K. Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’, Yale Journal of International Law, Vol. 33, 2008, pp. 126-164. 28 On these minimum core obligations, the General Comments adopted by the Committee on certain rights add valuable sources. 29 See, Engle, ibid., 264. 30 See, The Final Act of the International Conference on Human Rights, Teheran, 1968. UN Doc. A/Cont 32. 31 On the prolonged human rights agenda as well as the interlinking preferences invoked by the West, see generally, D.J. Whelan & J. Donnelly, ‘The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight’, Human Rights Quarterly, Vol. 29, No. 4, 2007, pp. 908-949.

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connection between human rights that civil, political, economic, social and cultural rights ‘are universal, indivisible, interdependent and closely interrelated.’32 Nowadays, even after the entry into force of the Optional Protocol, the prerequisite theory of socio-economic rights shall be left out of consideration due to the simple lack of any ranking within human rights law and the irrelevance of comparison. These rights are separately stated in core treaties, have equivalent but separate enforcement mechanisms at global, regional and national level; furthermore, they include different types of sources, aspects of human life, state obligations and sanctions with heterogeneous interests differing in each state. Undoubtedly, human rights overwhelmingly embrace state obligations in favour of the human being, and the essential needs and aims of the people does not require any misleading and misconstrued reduction and purposeless fragmentation within the domain of human rights. In summary, the legitimacy of existing international instruments of human rights cannot be undermined by reference to the uniqueness of enforcing socioeconomic human rights; however, the effectiveness of complaint mechanisms and the obligations of states advancing such rights are the substantive issue to analyze.

4.3.2

Pro-Justiciability Arguments – Elements Strengthening the Enforcement of Economic, Social and Cultural Rights

This sub-chapter deals with those elements of individual complaint mechanisms that are considered to be in favour of the effective protection of economic, social and cultural rights.33 No one can deny that the entry into force of the Protocol is a milestone achievement by way of introducing a new instrument that allows the launch of claims and complaints by the individual against the state. One of the major criticisms has been the lack of such measures in contrast with the protections of the freedom rights. Since May 2013, the ultimate beneficiaries of such rights (namely individuals) can now take advantage of the same enforcement mechanism within the civil and political rights system. This landmark development gives the Committee on Economic, Social and Cultural Rights substantial

32 The idea of interconnectedness had already been accepted and introduced by the Art. 22 of the Universal Declaration of Human Rights, upon which ‘[e]veryone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ 33 However, a citation by Henkin must be emphasized and taken into consideration on the issue of the then lack of complaint procedure: ‘absence of remedies may weaken the real enjoyment of rights but does not derogate them from their quality as rights.’ Cf., L. Henkin, International Human Rights and Rights in the United States, in J.R. Pennock & J.W. Chapman (Eds.), Human Rights (NOMOS XXIII) Yearbook of the American Society for Political and Legal Philosophy, New York, University Press, 1981, p. 270.

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competences to deliver recommendations and propose government responses to fulfil rights of the individual under the Covenant that have been violated. The minimum core obligations and the inherent content of the certain rights had been set forth and specified within the text of the general comments, providing a benchmark and a non-binding but relevant interpretation of capital importance on the necessary threshold (beneath this minimum quality and quantity the protection of rights cannot be achieved), implicit meaning and state obligations of certain rights.34 On the meaning of the violations regarding socio-economic rights, the 1997 Maastricht Guidelines put down a clarification i) on the obligations to respect, protect and fulfil (Para. 6), ii) the obligations of conduct and of result (Para. 7), iii) the margin of discretion (Para. 8), iv) the minimum core obligations (Para. 9) and the v) availability of resources (Para. 10). These crucial but non-binding elements would strengthen to reveal the essence of these rights, upon which the enforcement by judicial or quasi-judicial ways can be achieved without hindrances. The roots of the vulnerability and criticism of socio-economic rights and the individual complaint mechanism are similar, in that they are differing reactions to the same characteristics. This why it is so important to refine and clarify the content of socio-economic rights and to specify the implementation methods to be followed by states. The individual complaint mechanism is the ideal way of fulfilling this essential requirement serves as an incentive to induce the state to progressive implementation of its obligations.35 Undoubtedly, the treaty-based bodies of the specific human rights instruments are the most eligible fora to unfold the exact meaning and enforcement measures of such rights at the international level. The Committee’s practices on individual complaints can evidently clarify the role of states as a guide in advancing and strengthening economic, social and cultural rights.36 The universal interpretation of the Covenant by the Committee can considerably assist state activities by observing and developing such rights in a globally unified way. In sum, the individual or group complaint may subsequently clarify the exact meaning of these rights in the living practice on the level of state implementation. Until now, a

34 Cf., Limburg Principles, Paras. 25-28. ‘25. States parties are obligated, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all. 26. Its available resources’ refers to both the resources within a State and those available from the international community through international co-operation and assistance. 27. In determining whether adequate measures have been taken for the realization of the rights recognized in the Covenant attention shall be paid to equitable and effective use of and access to the available resources. 28. In the use of the available resources due priority shall be given to the realization of rights recognized in the Covenant, mindful of the need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services.’ 35 In order to clarify it, universally accepted indicators are needed, see, e.g. from the scholar literature, J.V. Welling, ‘International Indicators and Economic, Social, and Cultural Rights’, Human Rights Quarterly, Vol. 30, No. 4, 2008, pp. 933-958. 36 See, General Comment No. 10: The role of national human rights institutions in the protection of economic, social, and cultural rights. E/C.12/1998/25, 10 December 1998.

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similar modelling method has not appeared. It must be stated that the lack of this Optional Protocol was rather due to the lack of political intentions for years; hence, this hiatus was not primarily and explicitly linked to the non-justiciability of socio-economic rights in general. The pro-justiciability arguments shall allude to the existing practice of states and regional bodies. As a matter of fact, there are several current fora that have the competence to receive individual complaints within the field of socio-economic rights (such as the Inter-American Commission of Human Rights, the Inter-American Court of Human Rights, the European Court of Human Rights as well as the European Committee of Social Rights).37 In summary, it must be emphasized as an advantage that the Optional Protocol, on the one hand, provides a complaint forum for the individual, while on the other hand, decisions taken by the Committee and the outcomes of the complaint mechanism will serve as precedents to benefit the governments and domestic bodies in charge of human rights (including both directly ‘responsible’ governments and others subsequently seeking to avoid similar violations). Such a two-fold goal will pave a path to the progressive development of economic, social and cultural rights.

4.3.3

Contra-Justiciability Arguments – Elements Allegedly Weakening the Enforcement of Economic, Social and Cultural Rights

This part of the article reviews the inherent circumstances and capabilities that impede the effectiveness of individual complaints and discusses the hindrances to the wide-scale protection and promotion of socio-economic rights. Beyond the uncertain nature of socioeconomic rights as well as the multi-level and debatable state practice of progressive implementation, this sub-chapter focuses on the impact of financial and other external crises that strongly determine the stance of states towards the application and ‘granting’ of economic, social and cultural rights. At first sight, these weakening factors appear very evident and persuasive, yet differences with the enforcement of civil and political rights seem negligible in many when considering the frequently obvious commonalities. Therefore, many weakening enforcement arguments can be answered by a rebuttal based upon the same peculiarities of individual complaints as within the field of civil and political rights.

37 E.g, M.F. Tinta, ‘Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’, Human Rights Quarterly, Vol. 29, No. 2, 2007, pp. 431-459.

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The Vagueness of the Taxative List of These Rights and of the State Obligations (if Any) Generally, the relevant literature and common opinion tend to accept the commonplace argument that economic, social and cultural rights are very different in nature and in enforcement from the freedom rights; simultaneously the numerous scopes of state obligations are quite obvious. Though accepting this real anomaly, however, in the light of the complaint procedure certain economic, social and cultural rights are not less abstract and vague than a few civil and political rights. Without a doubt, the taxative list of the Covenant and the general comments adopted to the single rights or entitlements provide a clear rebuttal for the vagueness criticism, while such weakness is undoubtedly proven. The required state allocations provided by the sovereign to foster these rights assume the promotional role of the state, since socio-economic rights do not vest the individuals with substantive rights via clarified state obligations ensured with immediate effect. The Covenant, upon Article 2, expects from the states to take steps, individually and through international assistance and co-operation to the maximum of the available resources38 in order to achieve progressively the full realization of the rights by all appropriate means. Thus, progressive realization lays down a recognition that ‘full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time’; however, ‘the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content.’39 The Limburg Principles sets out (Para. 21) the obligation to achieve progressively the full realization of the rights as it imposes State Parties ‘to move as expeditiously as possible towards the realization of the rights.’ No matter of the further case law of complaint mechanism, such usage of state obligations in a treaty would not abrogate the vagueness of these rights and obligations. Exposure to Financial Crises, Recession and the Political Stances of the Government The progressive development of socio-economic rights is strongly exposed to the financial situation and the economic wealth and willingness of the state. Economic, social and cultural rights are relatively expensive rights due to their inherently requirement for institutionbuilding and their service-based nature. Therefore only a limited number of states can afford the best and broadest possible development of such ‘borderless’ rights. The phenomenon of boundless development opportunities of socio-economic rights is in sharp contrast with civil and political rights, where the notion of gradation is not as typical as the limitless opportunities for the promotion of leading economic and social rights (from 38 Considering the issue of maximum available resources, see, R.E. Robertson, ‘Measuring State Compliance with the Obligation to Devote the ‘Maximum Available Resources’ to Realizing Economic, Social, and Cultural Rights’, Human Rights Quarterly, Vol. 16, No. 4, 1994, pp. 693-714. 39 See, General Comment No. 3, Para. 9.

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the right to work to the right to social services and insurance in a very broad and costeffective way). As Arambulo aptly remarks: the opposition to an individual complaint procedure seems to be really informed by the fear – seldom explicitly mentioned – of imposing uncontrollable financial burdens upon the States, and is intrinsically linked with the international political conflict, first between East and West, now between North and South.40 Undoubtedly, the phrase of ‘maximum of its available resources’ set forth by the Covenant predominantly presupposes the implementation of such rights, however, these words indicate that the level of the countries’ economic development fundamentally allocates their assumed obligations. Hence, pursuant to the General Comment No. 3. Para. 11, the Committee emphasizes that even ‘where the available resources are demonstrably inadequate, the obligation remains for a State Party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.’ Moreover: [E]ven in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively lowcost targeted programmes.41 Since the adoption of the two separate treaties in 1966, the two covenants and therefore the lists of rights have been stigmatized by West-East preferences. Although the separation and division is not as sharp as it used to be, the political-ideological and fiscal inclinations of the ratifying governments are crucial decision-making factors in the participation of the Protocol. While at the time of ratification, most contracting parties had a solid leftleaning government, there is more to be analyzed than the single political position and ideological leaning of the ratifying power. In the midst of the global financial crisis (July 2009), the United Nations General Assembly adopted a resolution on the world financial and economic crisis and its impact on development, explicitly underlining the necessity of global cooperation among the governments in the form of prompt and responsive actions with due regard to the human and social aspects.42 However, the resolution neither contains concrete obligations, nor 40 Cf., K. Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects, Intersentia, Antwerpen 1999, p. 97. 41 See, General Comment No. 3, Para. 12. 42 See, UNGA Res. 63/303. Outcome of the Conference on the World Financial and Economic Crisis and Its Impact on Development, A/Res/63/303, Sixty-third Session, 95th plenary meeting, 13 July 2009.

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mentions the economic, social and cultural rights (it intentionally avoids the human rightsbased approach), but it lays upon the required actions of the governments in order to undertake actions aimed at mitigating the negative impacts of the crisis through e.g. safeguarding economic, development and social gains as well as strengthening the role of the United Nations development system. The resolution provides an extensive guideline-based (action plan) soft law basis for governments, while its wider context truly presupposes a certain existence of enforcement system of economic, social and cultural rights. In sum, the progressive development of rights as an abstract recognition can easily be considered a panacea from the government for the people intended to moderate them and ‘calm them down’ during a financial crisis, but the individual complaint mechanism may counter this advantage within the form of potential redress and financial compensation. Therefore the state is neither willing nor able to fulfil most economic, social and cultural rights, even as it fears the potential flood of class actions during a recession (e.g. the right to work of the unemployed). Considerably Different Implementation Approaches at National Level Uniform and universal interpretation is almost impossible for the Committee, as implementation and progressive development policies vary from state to state (on the contrary, the civil and political human rights have more or less uniform and rather identical content globally). Progressive development as a general aim and goal supported by the Protocol leaves sufficient room for differentiation in the application of such rights at the state level.43 States’ ways of respecting, recognizing and fulfilling socio-economic rights are quite diverse and fundamentally incomparable. Undoubtedly, the Committee on Economic, Social and Cultural Rights can deliver recommendations to the contracting parties; thus states shall be guided to correct and rectify violations of human rights. However, the weakness can easily be seen as Paragraph 4 of General Comment No. 3 stated that ‘States parties have generally been conscientious in detailing at least some of the legislative measures that they have taken in this regard’; however, these measures are by no means exhaustive of the obligations of State Parties. The promotional character of state obligations would not enhance the universal and uniform implementation and enforcement of the socio-economic rights, while [I]t is no longer taken for granted that the realization of economic, social and cultural rights depends significantly on action by the state, although, as a matter

43 See generally, C. Raj Kumar, ‘National Human Rights Institutions and Economic, Social, and Cultural Rights: Toward the Institutionalization and Developmentalization of Human Rights’, Human Rights Quarterly, Vol. 28, No. 3, 2006, pp. 755-779.

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of international law, the state remains ultimately responsible for guaranteeing the realization of these rights.44 The ability and willingness of the State Parties to fulfil their obligations set forth in the Covenant and the Optional Protocol basically determine the implementation, so thus, the meaning of the socio-economic rights in practice. Therefore, the Maastricht Guidelines traced back to 1997 referred to the inability and unwillingness of the states to comply with the Covenant,45 but since the entry into force of the Optional Protocol this obstacle may be lowered in the practice by elaborating the standards of the fulfilment and avoiding the potential ‘inconvenient’ complaints against the State Party. The Maastricht Guidelines contain further promotional measures being significant at the national level, such as the i) necessary monitoring functions of the national ombudsman institutions and other human rights commissions, ii) the direct incorporation or application of international instruments recognizing economic, social and cultural rights as well as iii) the adoption of new standards in contribution with the state and relevant international bodies.46 On the role of the national human rights institutions, the General Comment No. 10 had been adopted in 1998, setting out the general comment provides an indicative list on the types of activity on a national level.47 All the same, neither the non-binding guidelines, nor the non-binding (even not precedent-like) Committee recommendations will presumably mitigate the negative effects of this obstacle and abolish that fundamental inherent weakness. Few African and Asian Countries Have Ratified the Optional Protocol A great limitation and weakness of the Optional Protocol is that only a very small number of African countries (Cape Verde, Gabon and Niger) and Asian states (Mongolia alone) have ratified it.48 Pro rata, only 20% of the ratifying states are African and Asian states (four of twenty states). While these countries currently boast strong economic (and so far,

44 45 46 47

Cf., Maastricht Guidelines, Para. 2. See, Maastricht Guidelines, Para. 13. See, ibid., Paras. 25-26. and 30. Such as i) the promotion of educational and information programmes designed to enhance awareness and understanding of economic, social and cultural rights, ii) the scrutiny of existing laws and administrative acts to ensure the consistence with the Covenant, iii) providing technical advice, or undertaking surveys in relation to economic, social and cultural rights, iv) the identification of national level benchmarks, v) conducting research and inquiries, vi) monitoring compliance and vii) examining complaints alleging infringements of applicable economic, social and cultural rights standards within the state, as well. General Comment No. 10, Para. 3. 48 As of July 2015, no complaint against African and Asian states had been filed to the Committee.

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social and cultural) development, the level of enforcement is low and detailed redress mechanisms are either absent or are barely implemented.49 Furthermore, regional protection for such rights on these continents is clearly missing: the African human rights system does not allow individual or group complaints addressed directly to Contracting Parties in judicial or quasi-judicial level; while pledging economic, social and cultural rights at a nominally advanced level;50 while no Asian (pan-Asian) human rights system exists in the shape of treaties and a protection mechanism. This is the reason why such regions must be bound by the ratification of global and universal measures such as the Optional Protocol.51 In summary, the non-attendance of African and Asian countries (except for the above-mentioned four State Parties) makes the Optional Protocol globally deficient.52 In sum, approximately (as of July 2015) altogether 320 million individuals live on the territories of the State Parties from the estimated 7 billion world population (cca. 4.5% of the total population).

4.4

The Process Mechanism of the Optional Protocol

Originally, the 1966 Covenant on Economic, Social and Cultural Rights did not establish a treaty-based monitoring body (unlike the other 1966 Covenant that created the Human Rights Committee), instead the supervisory function from the outset has been assigned to one of the main political organs of the United Nations, namely the Economic and Social Council. However, a resolution of the Economic and Social Council set up the Committee on Economic, Social and Cultural Rights in 1985, introducing its first monitoring work in 1987. Since 5 May 2013, under the new monitoring mechanism the Committee may consider individual complaints against contracting parties that allege the violation of human rights listed in the Covenant. The complaints shall meet the processual precondition laid down in Articles 1-4 of the Protocol. 49 On the challenges relating to the Asian and African developing countries, see in general, W. van Ginneken & Intermational Labour Organization (ILO), Extending Social Security: Policies for Developing Countries. ESS Paper No. 13, International Labour Office, Geneva, 2003. www.ilo.int/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/kd00061.pdf. 50 According to Art. 22(1) of the African Charter on Human and Peoples’s Rights, ‘all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.’ 51 It is worth noting that an increasing number of regional monitoring bodies, namely the Inter-American Commission of Human Rights, the Inter-American Court of Human Rights, the European Court of Human Rights as well as the European Committee of Social Rights have competence to examine cases related to the alleged violation of economic, social and cultural rights via individual or group complaint. 52 On the judicial enforcement of socio-economic rights in the – mostly African and Asian – developing world, see, V. Gauri & D. Brinks (Eds.), Courting Social Justice. Judicial Enforcement of Social and Economic Rights in the Developing World, Cambridge University Press, Cambridge, 2008, p. 363.

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The treaty-based bodies recognize – beyond the less efficient reporting system – three complaint mechanisms, namely individual communications, state-to-state complaints and the inquiry procedure. During the ratification process, a State Party must indicate which of the above-mentioned procedure(s) of the Protocol the state is going to adhere to. Pursuant to Article 2 of the Optional Protocol, the individual complaint may be submitted by and on behalf of the individual or group whose right(s) or the group members’ right(s) set forth in the Covenant have allegedly been violated in a grave and systematic manner by the State Party to the Covenant and the Optional Protocol.53 Furthermore, inter-State communications can be submitted to the Committee, when a State Party claims that another State Party is not fulfilling its obligations under the Covenant. It is worth mentioning, that the exhaustion of effective domestic remedies is imperative for admitting claims upon the Optional Protocol, similarly to the general practices of human rights monitoring bodies within the international sphere (Art. 3, Para. 1). Firstly, the Committee shall make available its good offices to the individual/group and the State concerned for the sake of settling the matter in a friendly way (Art. 7). Secondly, during a detailed examination period performed by the Committee itself on the basis of the claims presented by or on behalf of individuals or groups of individuals, the Committee shall hold closed meetings and may consult appropriate bodies. The Committee shall consider the reasonableness54 of the necessary steps taken by the State in accordance with Articles 2-5 of the Covenant; and even more, shall bear in mind that the State may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant (Art. 8, Paras. 2-4). Thirdly, after an in-depth examination period, the followup phase focuses on the merit and non-binding settlement recommendations, and the Committee shall transmit its (also non-binding) views and advices towards the parties concerned. It must be noted that this phase requires an active states-based contribution, namely delivering written responses on the actions taken in accordance with the written recommendations of the Committee.55 The most novel phase of the Optional Protocol is the inquiry procedure, upon which in the case of alleged violation of the Covenant rights, the Committee ‘shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.’56 An inquiry may be conducted by one or more designated Committee members, whose task is to take into account the relevant observations and reliable information presented by the state on the given case.

53 The requirement of admissibility are set forth in Art. 3 and 4. 54 Cf., B. Griffey, ‘The “Reasonableness” Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’, Human Rights Law Review, Vol. 11, No. 2, 2011, pp. 275-327. 55 See, Art. 9, Paras. 2-3. 56 See, Art. 11, Para. 2.

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The outcome of this inquiry includes the transmission of the Committee containing nonbinding comments and recommendations, whereupon the state shall submit its own observations, followed by a potential summary delivered and published by the Committee.57 Additionally, the Committee may conduct a follow-up period (Art. 12) by means of inviting and challenging the state on the application and implementation of the remedies based upon the recommendation of the Committee. Meanwhile, the states are obliged to take all appropriate measures to ensure that claimants are not subjected to any form of illtreatment or intimidation as a consequence of communicating with the Committee pursuant to the complaint mechanism (Art. 13). Besides, the Optional Protocol set forth the requirement of international assistance and cooperation (including the setting up of a financial trust for the sake of promoting human rights and fostering the inquiry procedure); the summary of inquiries in the annual report of the Committee, as well as the dissemination and information regarding their matters, views and recommendations, hereby encouraging states how to avoid the non-desired negative precedent status via UN-level (Arts. 14-16). The most novel achievements of the Optional Protocol are on the one hand, i) the possibility for individuals to submit a claim against a contracting party on the basis of the Covenant; on the other hand, ii) the undertaken inquiry procedure may support the understanding of the inherent content of such rights and, particularly, state obligations. Furthermore, the Committee’s non-binding views and recommendations (and the responsive state observations, as well) may promote and enhance the long-term development and improvement of socio-economic rights and their enforcement via state level. Arambulo published the expressive statement on this issue, which reads as follows: ‘influencing national legislation and policy positively is the function most effectively served by an individual complaint procedure.’58 As of July 2015, three pending cases can be found in the docket of the Commission.59 One of them has already been admitted, and the other two complaints are currently in the admission phase. The Commission admitted the individual complaint No. 1/2013 against Spain in the subject of discrimination in access to non-contributory pension while in prison (in accordance with the Arts. 2 and 9 of the Covenant). In addition, the individual complaint No. 2/2014 against Spain on the denial of access to court to protect the author’s right to housing (invoking Art. 2(1) and 11(1) of the Covenant) and the individual complaint No. 3/2014 against Ecuador under Articles 2, 4, 10(3), 13 and 15 of the Covenant with regard to the discrimination of a minor foreigner in participating in football tournaments are still pending before the official admission. Nevertheless, the Commission has not published further information and details about the merits of the complaints. Thus,

57 Cf., Art. 11, Paras. 3-8. 58 See, Arambulo, ibid., p. 179. 59 www.ohchr.org/EN/HRBodies/CESCR/Pages/PendingCases.aspx.

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the Commission has to deal with the invoked rights on such various issues as the access to pension in prison, the denial of access to court concerning right to housing and the discrimination as a labour restriction in sport, therefore the interpretation of the Covenant in individual complaints procedure requires deep analysis and ‘courageous’ (expectedly complainant-friendly) stance conducted by the Commission on the financial contributions allocated by the State Party.

4.5

Conclusion and Perspectives

In order to achieve the desired outcome of i) strengthened legal protection for economic, social and cultural rights, which will move the international community closer to the unified vision of human rights of the Universal Declaration on Human Rights (declared by Navi Pillay) as well as ii) the reaffirmation of universality, indivisibility, interdependency and interrelatedness of civil, political, economic, social and cultural rights launched at the 1993 Vienna World Conference on Human Rights, the remarkably short time since 5 May 2013 and limited experience (actually missing as of the fall of 2014) requires caution in predicting the future and potential results of the functioning of the mechanism under analysis. It should be noted that its evolution, originating from the reporting system of the Economic and Social Council (the original 1966 monitoring system) to the individual complaint mechanism of the Committee (the 2008 monitoring system of the Optional Protocol) is also a positive and promising trend favouring the rights of the individual. The strengthening and weakening elements of justiciability are separately significant and demonstrative; however the comparison of the two pools of human rights (civilpolitical and economic-social-cultural) clarifies their common nature indivisibility. Since the entry into force of the Optional Protocol, the question whether the socio-economic rights are enforceable or not had been replaced by various further questions on the method of justiciability; however their legal basis is obvious at present. The paper hereby occupied the stance of comprehensive assessment on the pro and contra arguments on the justiciability of economic, social and cultural rights, proving that the present lack of practice of the Commission gives floor to review all these arguments. The main observations and conclusions are multiple, such as i) the entry into force of the Protocol firstly gives the chance to enforce such rights and fill them with substantial normative content within the form of interpretation by the Commission; ii) it could encourage the whole human rights structure to use this method and to compile the relevant background materials (such as complaint aid and follow-up measures by NGOs, etc.); iii) the acceptance of guides for states and individuals to access to the complaint procedure seems to be unavoidable in cooperation with the competent bodies (e.g. the Commission); iv) without a doubt, the practice of the Commission will predict the chance to narrow the

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differences between the developed and developing states on implementing these rights; v) in sum, the above-mentioned prospects could lead the economic, social and cultural rights closer to the idea of indivisibility with the civil and political rights in the post-(financial)crisis period. However, the development of such field cannot be envisaged without the increase of number of participating states of the Optional Protocol and number of complaints before the Commission. Time must pass in order to sum up the practice and (still missing) ‘case law’ of the Committee and state practices (if any) of progressive implementation of such rights under the aegis of the Covenant and the Optional Protocol. For a final and optimistic sentence, let us quote Navi Pillay again, who stated that thanks to this new procedure, ‘a jurisprudence will now be developed that will help define the scope of application of economic, social and cultural rights and outline adequate remedies for victims.’

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Article 27 of the ICCPR in Practice, with Special Regard to the Protection of the Roma Minority

Anikó Szalai* Article 27 of the International Covenant on Civil and Political Rights is the first and only universal, treaty-based protection for ethnic, religious or linguistic minorities. It stipulates that: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.1 Notwithstanding this simple phrasing many issues of interpretation lie behind. This study aims at shedding light on the subjects of this right; on what is protected by Article 27; on the difference between this right to practice one’s own religion and the freedom of religion prescribed by Article 18 of the ICCPR; and on whether Article 27 provides protection for a specific minority group, namely the Roma. This study is largely based upon the practice of the Human Rights Committee (CCPR), represented both through the reports of states and individual complaints. It is concluded that Article 27 in itself is insufficient for the protection of the Roma minority, but Article 27 taken together with all the other provisions of the ICCPR ensure the appropriate level of protection.

*

1

Anikó Szalai (PhD) is a senior lecturer of International Law at the University of Szeged, Hungary. This article is part of a bigger research. See A. Szalai, Protection of the Roma Minority under International and European Law, Eleven International Publishing, the Hague 2015. International Covenant on Civil and Political Rights, New York, 16 December 1966, UNTS Reg. No. 14668. As of May, 2015 the Covenant has 168 member states. However, three states have expressed reservations and declarations, relating to Art. 27: France, Turkey and the United States of America. See United Nations Treaty Collection. .

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5.1

Subject of the Right – Who Are Protected?

This provision protects ethnic, religious and linguistic minorities and prescribes both community- and individual-level protection for members of a minority. This right protects those who are members of a group which can be differentiated from the majority population of the state based on their ethnicity, religion or language.2 Thus differences based on sexual orientation (i.e. homosexuality, trans-gender, etc.), gender, age, income, profession, class etc. are not included in this category, and whenever this study uses the expression ‘minority’, it refers only to ethnic, religious and linguistic minorities. A problematic expression seems to be the beginning of the sentence: ‘In those states in which […] minorities exist.’ This suggests, that the definition whether a minority exists or not in the state depends upon the (subjective) decision of the state. The Human Rights Committee declared that [t]he existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.3 When a state party required the condition that a minority group should be able to demonstrate that it has lived in the territory of the state for at least a century in order to be recognized as a national or ethnic minority, CCPR expressed that it is in contravention of Article 27 and General Comment No. 23.4 The Committee also found it problematic when a state recognized some minorities, and not others. For example in the case of Croatia the Committee was concerned that the Roma community was not accorded legally recognized minority status and declared that the state should ensure that all members of ethnic, religious and linguistic minorities enjoy effective protection against discrimination and are able to enjoy all the rights guaranteed in Article 27.5 A minority group is even entitled to minority rights if, as in the words of the representative of Morocco – referring to the Jewish community –, ‘it lived in symbiosis with the rest of the society.’6 2

3 4

5 6

For a more detailed analysis on the definition of minority See, e.g. J. Pejic, Minority Rights in International Law’, Human Rights Quarterly, Vol. 19, No. 3, 1997, pp. 666-685; P. Kovács, International Law and Minority Protection: Rights of Minorities or Law of Minorities?, Budapest, Akadémiai Kiadó, 2000; F. Capotorti, ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’, UN Doc. E/CN.4/Sub.2/384c, 1979. Human Rights Committee, General Comment No. 23, on the Rights of Minorities, Art. 27 of the International Covenant on Civil and Political Rights, UN Doc. No. CCPR/C/21/Rev.1/Add.5., 26 April 1994. p. 3. This was and still is the situation in Hungary, prescribed both by the former and the present act on minorities (previous one adopted in 1993, the present one in 2011). Report of the Human Rights Committee, Vol. I, 2010-2011, UN Doc. No. A/65/40, p. 44. Report of the Human Rights Committee, Vol. I, 2000-2001, UN Doc. No. A/56/40, p. 69. Report of the Human Rights Committee, 1991-1992, UN Doc. No. A/47/40, p. 17.

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It is evident from General Comment No. 23 that this article is aimed at protecting all groups of ethnic, religious and linguistic minorities, thus including indigenous persons and communities. When the Human Rights Committee deals with a complaint, the national legislation about non-recognition of certain people as a minority does not prevent the Committee from considering the complaint as belonging to the minority concerned and for them to benefit from the protection of Article 27 of the Covenant.7 A state party may not restrict the rights under Article 27 to its citizens alone, but also to everyone visiting that country (e.g. migrant workers, visitors, non-permanent residents).8 The case law of the Human Rights Committee also clarified the issue of which part of the population is the majority and which is the minority in the concerned state, with respect to Article 27. The numbers and percentage of the different population groups, for example based on ethnicity, should be compared at a state level and not at a smaller unit of the state. Accordingly, the minorities referred to in Article 27 are minorities within the state, and not minorities within any province or region or town. A group may constitute a majority in a province but still be a minority in a state and thus be entitled to the benefits of Article 27.9

5.2

Subject Matter – What Is Protected?

Article 27 expresses three subject matters: culture, religion and language. While the profession and practice of religion is also guaranteed in ICCPR’s Article 18 (freedom of thought, conscience and religion), the other two (enjoying one’s own culture and using one’s own language) are novel. Since the same factual grounds can establish the violation of several rights of the Covenant, it is still possible to refer to both Article 18 and 27 in a complaint. The Human Rights Committee regularly relies upon the articles in an alternative way: if one is not substantiated, it does not mean, that the other would also be inadmissible. Article 27 is cited as an alternative right in a wide range of cases, such as family name,10 housing,11

7

Sandra Lovelace v. Canada, CCPR, Communication No. 24/1977, 30 July 1981, UN Doc. No. CCPR/C/13/D/24/1977. 8 Human Rights Committee, General Comment No. 23, on the Rights of Minorities, Art. 27 of the International Covenant on Civil and Political Rights, UN Doc. No. CCPR/C/21/Rev.1/Add.5, 26 April 1994, pp. 2-3. 9 John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada, Communications Nos. 359/1989 and 385/1989, Report of the CCPR, Vol. II, 1992-1993, UN Doc. No. A/48/40. pp. 91-103. 10 Bulgakov v. Ukraine, Communication No. 1803/2008, Report of the CCPR, Vol. II (Part One), 2012-2013, UN Doc. No. A/68/40, pp. 187-193; Raihman v. Latvia, Communication No. 1621/2007, Report of the CCPR, Vol. II (Part One), 2010-2011, UN Doc. No. A/66/40, pp. 352-361. 11 Naidenova et al. v. Bulgaria, Communication No. 2073/2011, Report of the CCPR, Vol. II (Part One), 20122013, UN Doc. No. A/68/40, pp. 442-455; Georgopoulos et al. v. Greece, Communication No. 1799/2008, Report of the CCPR, Vol. II, 2009-2010, UN Doc. No. A/65/40, pp. 377-389.

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Anikó Szalai freedom of religion,12 natural water usage,13 torture and inhumane treatment,14 hate speech,15 freedom of expression16 etc. It even happened in the practice of the Committee that when it could not establish a violation under Article 27 owing to the state’s reservation to that article, it stated that the same facts could invoke the breach of other rights guaranteed in the Covenant. In the Francis Hopu and Tepoaitu Bessert v. France17 case, the ethnic Polynesian complainants alleged that a French state-owned company intended to destroy their ancient burial ground by construction works in Tahiti (overseas French territory). Owing to the reservation maintained by France, the Committee was precluded from examining the issue under Article 27.18 Nevertheless, it declared that the state’s actions constituted arbitrary interference with the complainants’ family and privacy. Several members of the Committee expressed dissenting opinions to the decision, mainly emphasizing that either the reservation of France was not applicable to French overseas territories (and thus Art. 27 could have been examined), or that visiting a publicly owned burial site cannot be understood as being part of one’s right to privacy.19 According to the Human Rights Committee, states in their reports regularly confuse the right ensured in Article 27 with the right to self-determination or the duty to guarantee equality before the law and non-discrimination.20 While people are entitled to self-determination under the International Covenants, Article 27 of the ICCPR guarantees rights to the individual and the community. Article 27 does not require the guarantee of outer or inner self-determination (that is secession, or autonomy or self-government), it only

12 Prince v. South Africa, Communication No. 1474/2006, Report of the CCPR, Vol. II, 2007-2008, UN Doc. No. A/63/40, pp. 261-273. 13 Poma v. Peru, Communication No. 1457/2006, Report of the CCPR, Vol. II, 2008-2009, UN Doc. No. A/64/40, pp. 216-222. 14 Titiahonjo v. Cameroon, Communication No. 1186/2003, Report of the CCPR, Vol. II, 2007-2008, UN Doc. No. A/63/40, pp. 20-26. 15 Andersen v. Denmark, Communication No. 1868/2009, Report of the CCPR, Vol. II, 2009-2010, UN Doc. No. A/65/40, pp. 509-518; Vassilari et al. v. Greece, Communication No. 1570/2007, Report of the CCPR, Vol. II, 2008-2009, UN Doc. No. A/64/40, pp. 395-405. 16 Said Ahmad and Abdol Hamid v. Denmark, Communication No. 1487/2006, Report of the CCPR, Vol. II, 2007-2008, UN Doc. No. A/63/40, pp. 390-403. 17 Francis Hopu and Tepoaitu Bessert v. France, Communication No. 549/1993, Report of the CCPR, Vol. II, 1996-1997, UN Doc. No. A/52/40, pp. 70-80. 18 France completely excludes the application of Art. 27, stating that France has a unified nation, where everyone is French, and everyone is equal, thus none should have different rights than the others. See United Nations Treaty Collection. . 19 See the partly dissenting opinions of Elizabeth Evatt, Cecilia Medina Quiroga, Fausto Pocar, Martin Scheinin and Maxwell Yalden, and the dissenting opinion of David Kretzmer, Thomas Buergenthal, Nisuke Ando and Lord Colville. Francis Hopu and Tepoaitu Bessert v. France, Communication No. 549/1993, Report of the CCPR, Vol. II, 1996-1997, UN Doc. No. A/52/40, pp. 81-83. 20 Human Rights Committee, General Comment No. 23, on the Rights of Minorities, Art. 27 of the International Covenant on Civil and Political Rights, UN Doc. No. CCPR/C/21/Rev.1/Add.5, 26 April 1994. p. 1.

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prescribes the protection of culture, religion and language. Article 27 cannot be understood as a violation of the requirement of equality before the law or non-discrimination. Although the sentence is phrased in negative terms, positive measures of protection are required from the state.21 Such positive measures, among others, are the legislative, judicial and administrative acts which protect the identity of a minority and the enjoyment of the guaranteed rights. The state authorities are also required to protect the members of a minority from the detrimental actions of other persons within the state. Furthermore, positive legal measure of protection should be ensuring the effective participation of members of minority communities in the making of decisions which affect them.22 Article 27 guarantees rights distinct from and additional to all the other rights which individuals are entitled to enjoy under the Covenant. The protection of the minority rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned.23 While the category of religion and language is quite clear, culture has a wider and sometimes blurred meaning. The interpretation of these definitions can best be demonstrated through the case law of the Human Rights Committee.

5.2.1

Protection of Religion

In the last 20 years, the Human Rights Committee has dealt with numerous cases touching upon religious rights. The freedom to manifest one’s religion or beliefs is not absolute and may be subject to limitations which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. However, Article 27 guarantees an even wider margin: it only prohibits the full denial of the right. The main issue in the Prince v. South Africa24 case was, whether the restriction imposed on the practice of religion is acceptable under the human rights standards or not, and whether it leads to the denial of the right altogether. The complainant is a follower of the Rastafari religion, which originated in Jamaica and later in Ethiopia, as a black consciousness movement seeking to overthrow colonialism, oppression and domination. There are about 12,000 Rastafarians in South Africa. The use of cannabis sativa (marihuana or cannabis)

21 Id., p. 3. 22 Id.; Besides the explanation provided in General Comment No. 23, clarification of the required positive measures is also assisted by the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. See General Assembly Res. 47/135, 18 December 1992. 23 P. V. Ramaga, ‘The Bases of Minority Identity’, Human Rights Quarterly, Vol. 14, No. 3, 1992, pp. 409-428. 24 Prince v. South Africa, Communication No. 1474/2006, Report of the CCPR, Vol. II, 2007-2008, UN Doc. No. A/63/40, pp. 261-273.

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is central to the Rastafari religion. It is used at religious gatherings and in the privacy of one’s home. It is an offence in South Africa to possess or use cannabis. The complainant fulfilled all academic requirements for becoming an attorney, but before being allowed to practise, prospective attorneys must perform a period of community service. Owing to his criminal record of two convictions for possessing cannabis the claimant was asked whether he intended to use drugs in the future. Since he replied yes, he was denied the right to be registered for community service. He was thus placed in a position where he must choose between his faith and his legal career and he alleged that it meant the breach of Article 18 (freedom of religion) and 27 (right of minority to practice their own religion). The Committee recalled that the freedom to manifest one’s religion or beliefs is not absolute and may be subject to limitations, which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. According to the Committee, the regulation of the state not allowing the use of cannabis for religious aims was proportionate and necessary (thus no violation of Art. 18 occurred). On the issue of Article 27 the Committee expressed that the state’s legislation constituted interference with the complainant’s right, as a member of a religious minority, to practise his own religion, in community with the other members of his group. The Committee, however, recalled that not every interference could be regarded as a denial of rights within the meaning of Article 27. Certain limitations on the right to practise one’s religion through the use of drugs are compatible with the exercise of the right under Article 27 of the Covenant. The Committee regarded the general prohibition of possession and use of cannabis as a reasonable justification for the interference with the rights under this article (thus no violation of Art. 27 was found). In the Waldman v. Canada25 case the Committee demonstrated that the same facts can serve as the basis of the breach of several of the rights in the Covenant. The claimant was a Canadian citizen of Jewish faith. He enrolled his children in a private Jewish school, which had a high tuition fee. He claimed that discrimination occurred in the province of Ontario, since the only non-secular schools receiving full and direct public funding were the Roman Catholic schools. Other religious schools must find funding through private sources, including the charging of tuition fees. In addition, the claimant was required to pay local property taxes to fund a public school system he did not use. The complainant stated that Article 27 recognizes that separate school systems are crucial to the practice of religion, that these schools form an essential link in preserving community identity and the survival of minority religious groups and that positive action may be required to ensure that the rights of religious minorities are protected. Since Roman Catholics are the only religious minority to receive full and direct funding for religious education from the gov-

25 Waldman v. Canada, Communication No. 694/1996, Report of the CCPR, Vol. II, 1999-2000, UN Doc. No. A/55/40, pp. 86-101.

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ernment of Ontario, Article 27 has not been applied, as required by Article 2, without distinction on the basis of religion. In its decision the Committee considered that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the complainant’s religion, which are private by necessity, cannot be considered reasonable and objective. The Committee observed that the Covenant does not oblige state parties to fund schools which are established on a religious basis. However, if a state party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. The Committee declared that the same facts constitute violation of three articles of the Covenant (Arts. 18, 26 and 27). The following two cases demonstrate that even when the case seems to be explicitly about the right to practice a minority religion, the Human Rights Committee does not always rely upon Article 27. In the Immaculate Joseph, et al. v. Sri Lanka26 case Sister Immaculate Joseph, a Sri Lankan citizen and Roman Catholic nun served as Provincial Superior of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Sri Lanka (‘the Order’). She submitted a complaint on her own and the Order’s behalf, alleging that among other issues, their right to freedom of religion (Art. 18) and practice of their religious minority rights (Art. 27) had been violated. The Order, established in 1900, is engaged, among other things, in teaching, charity and community work, which it provides to the community at large, irrespective of race or religion. In July 2003, the Order filed an application for incorporation, but after several court proceedings, the Supreme Court declared that registration of the Order would be unconstitutional, since the Sri Lankan Constitution protects Buddhism. According to the Supreme Court the Order spreads Christianity, thus endangers Buddhism. In the decision the Committee recalled that permissible restrictions on the freedom of religion must be interpreted narrowly and with careful scrutiny of the reasons advanced by way of justification. The Committee expressed that proselytization is a part of the freedom of religion, thus the state violated that right of the complainants. After stating the breach of Article 18 the Committee found it needless to separately consider Article 27. In the A. R. and M. A. R. Coeriel v. the Netherlands27 case the complainants, two Dutch citizens, adopted the Hindu religion and they wanted to change both their first names and family names into Hindu names, while being nationals of and living in the Netherlands. The Dutch authorities allowed the change of their first names, but refused it with respect to their surnames. The state cited that certain principles had been formulated for the change 26 Immaculate Joseph, et al. v. Sri Lanka, Communication No. 1249/2004, Report of the CCPR, Vol. II, 20052006, UN Doc. No. A/61/40, pp. 347-356. 27 A. R. and M. A. R. Coeriel v. the Netherlands, Communication No. 453/1991, Report of the CCPR, Vol. II, 1994-1995, UN Doc. No. A/50/40, pp. 21-28.

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of names of persons belonging to cultural or religious minority groups. One of these principles stated that a surname should not be changed if the requested new name had cultural, religious or social connotations. Thus their request for the name-change was refused owing to it having religious connotations. The authors contended that their name change is essential for becoming a Hindu priest, and the rejection hinders that aim. According to the complaint this state action violates their right to religion as well as their right to enjoy their culture and religion as a minority. The Committee refused to deal with the issue under Article 18 or 27, since it found that the complaint was not well-substantiated with respect to these rights. Notwithstanding, it found violation of Article 17 for unreasonable and arbitrary interference with privacy. The following conclusions can be drawn with respect to the protection of religion under Article 27: the article is violated if the limitation imposed by the state on the practice of one’s own religion amounts to the denial of that right. When considering whether the limitation effectively denies that right, the Human Rights Committee takes into account its practice, which has evolved in relation to Article 18. The freedom to manifest one’s religion or beliefs is not absolute and may be subject to limitations, which are prescribed by law and are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. Not every interference could be regarded as a denial of rights within the meaning of Article 27; reasonable justifications can exist (such as the protection of health and society through the prohibition of the use of drugs). Permissible restrictions on the freedom of religion must be interpreted narrowly and with careful scrutiny of the reasons advanced by way of justification. If a state limits the practice of some religions, but not others, objective and reasonable criteria are needed in order to evade violation of Article 18 or 27. Although in General Comment No. 23 the Committee stated that positive measures of protection are required from the state,28 it expressed in its case law that the Covenant does not oblige state parties to fund activities on a religious basis. Adding that, if a state party chooses to provide public funding to religious activities, or for example religious schools, it should make this funding available without discrimination. This means that providing funding to one religious group and not for another must be based on reasonable and objective criteria.

5.2.2

Language Rights

As in the case of religious rights, the Committee examines whether the state’s interference with that right, through legislation, regulation or any other means, amounts to the de facto denial of the enjoyment of that right. 28 Human Rights Committee, General Comment No. 23, on the Rights of Minorities, Art. 27 of the International Covenant on Civil and Political Rights, UN Doc. No. CCPR/C/21/Rev.1/Add.5, 26 April 1994, p. 3.

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Article 27 protects the use of one’s own language in community with other members of the minority group, however, in reality this poses difficult questions, starting from the issues of the spelling of one’s own name, publishing a newspaper in a minority language, providing education in that language, or the right to have an interpreter in legal proceedings or to have the right to proceedings in one’s own language etc. Language is even more intertwined with culture than religion, thus in the following cases one might wonder if they could also be included in the category of enjoying minority culture. In the Mavlonov and Sa’di v. Uzbekistan29 case the subject matter concerned the denial of re-registration of a newspaper in a minority language (Tajik) by the Uzbek authorities and thus restricting the right to enjoy minority culture (Art. 27) as well as the freedom of expression (Art. 19). The newspaper published educational and youth-oriented articles between 1999 and 2001. In 2001 the newspaper was considered by the relevant authority to have published articles inciting inter-ethnic hostility and thus rejected the newspaper’s request to be registered again. Several court proceedings occurred, but they upheld the decision of the authorities. The Committee found a violation of the freedom of expression owing to, among others, the extensive bureaucratic impediments to be able to register a newspaper. The Committee made it clear that the question of whether Article 27 has been violated depends upon whether the challenged restriction has an impact so substantial that it does effectively deny the complainants the right to enjoy their cultural rights. The Committee considered that education in a minority language is a fundamental part of minority culture and thus in the present case the denial of a publication dealing with education meant the denial of the right to enjoy minority Tajik culture (i.e. the violation of Art. 27).30 However, examination of the case law of the Human Rights Committee over the last twenty years indicates that the Committee rather invokes the breach of other rights of the Covenant – if possible – than the language rights guaranteed in Article 27. The Bulgakov v. Ukraine31 case concerned a Ukrainian citizen of Russian origin, who complained that the Ukrainian state unilaterally, against his will, changed his name from the Russian spelling to the Ukrainian. The claimant maintained, with regard to Article 27 of the Covenant, that since the original name of a person is an essential element of his or her ethnic, cultural 29 Mavlonov and Sa’di v. Uzbekistan, Communication No. 1334/2004, Report of the CCPR, Vol. II, 2008-2009, UN Doc. No. A/64/40, pp. 96-105. 30 This also includes the right of the minority to quality education in its own language. The quality of education for members of the Roma community has been a hot topic recently in Europe. See S. Szemesi, ‘From Hajdúhadház to Strasbourg: Art. 14 of the European Convention on Human Rights in the jurisprudence of the European Court of Human Rights, with special regard to Roma educational cases’, Miskolc Journal of International Law, Vol. 5, 2008, No. 2, pp. 64-72; I. Ulasiuk, ‘To Segregate or not to Segregate? Educational Rights of the Roma Children in the Case Law of the European Court of Human Rights’, European University Institute Working Paper RSCAS 2014/29. 31 Bulgakov v. Ukraine, Communication No. 1803/2008, Report of the CCPR, Vol. II (Part One), 2012-2013, UN Doc. No. A/68/40, pp. 187-193.

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and linguistic identity, Ukrainian authorities violated his right to enjoy his own culture and use his own language. Since the Committee found a violation of Article 17 (arbitrary interference with one’s right to privacy), it decided not to examine separately the claims under Article 27. The Raihman v. Latvia32 case also demonstrates that the members of the Committee sometimes have a difficult time in deciding which article was breached, when the complainant relies upon several of them. Mr. Raihman, a Latvian national of Jewish and Russian origin complained that the Latvian state unilaterally and against his will changed his name in 1998. The former Russian spelling was changed to the Latvian spelling (‘Raihmans’). The claimant alleged that the name ‘Raihman’ is a Jewish surname, which has been used by several generations of his predecessors. He sought unsuccessfully to have his name officially recorded in accordance with its original Russian and Jewish origins, instead of its Latvian form. The claimant relied upon Articles 17, 26 and 27 of the Covenant. The Committee expressed the view that a person’s surname constitutes an important component of one’s identity, and that the protection against arbitrary or unlawful interference with one’s privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one’s own name. The Committee considered that the state party’s unilateral modification of the claimant’s name on official documents was not reasonable, and thus amounted to arbitrary interference with his privacy, in violation of Article 17 of the Covenant. As the Committee found a violation of Article 17 it decided not to examine separately the claims under Articles 26 and 27. In a dissenting individual opinion two members of the Committee stated that state parties to the Covenant may regulate activities that constitute an essential element in the culture of a minority, provided that the regulation does not amount to a de facto denial of this right. According to the dissenting members, based upon the circumstances of the case, the Committee should have stated that the imposition of a declinable termination on the name and surname of the claimant did not adversely affect his right, in community with the other members of the Jewish and Russian speaking minorities of Latvia, to enjoy his own culture, to profess and practice the Jewish religion, or to use the Russian language.33 In other cases with similar subject matter34 relating to the spelling of one’s name, states regularly cite that public authorities would be justified in using the script of the official language or languages of the state to record the names of persons belonging to national minorities in their phonetic form. They allege that Article 27 only guarantees the use of the minority language among the members of the minority, and the claimant is not pre32 Raihman v. Latvia, Communication No. 1621/2007, Report of the CCPR, Vol. II (Part One), 2010-2011, UN Doc. No. A/66/40, pp. 352-361. 33 Id., p. 363. 34 E.g. Klečkovski v. Lithuania, Communication No. 1285/2004, Report of the CCPR, Vol. II, 2006-2007, UN Doc. No. A/62/40, pp. 498-504.

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cluded from using his language in community with other members of the minority group. The complainants usually emphasize that a personal name, including the way it is spelt, constitutes an essential element in the culture of any ethnic, religious or linguistic community. It can be concluded that language rights can closely be interlinked with cultural rights.35 The John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada36 case sheds light on two important issues of Article 27. One is related to the definition of minority, namely, how it can be defined which group of people represents the minority population. The other aspect concerns the connection between the language rights of Article 27 and the right to freedom of expression under Article 19. In the Province of Quebec, Canada, local law ordered that all outdoor advertising, commercial signs and names of firms shall only be in French. The complainants stated that they are members of the English-speaking minority in the town, which represented about one-third of the population of the town in question. All of the complainants had to take down the signs of their businesses, since those were in English, even though their clientèle interacted in English. According to the complainants, this rule seriously violates their right to use their own language as a minority. The Committee observed that the provision in Article 27 refers to minorities in states, thus this reference, as others in the ICCPR, to ‘State’ or to ‘States’, means ratifying states. The Committee further added that, Article 50 of the Covenant provides that its provisions extend to all parts of Federal States without any limitations or exceptions. Accordingly, the minorities referred to in Article 27 are minorities within such a State, and not minorities within any province. A group may constitute a majority in a province but still be a minority in a State and thus be entitled to the benefits of Article 27. English speaking citizens of Canada cannot be considered a linguistic minority. The authors therefore have no claim under Article 27 of the Covenant.37 Nevertheless, the Committee declared that the concerned legislation of the province breached the complainants’ right to freedom of expression (Art. 19) and recommended the use of bilingual advertising. The J.G.A. Diergaardt et al. v. Namibia38 case also demonstrates more than one of the issues of Article 27. The case deals with two aspects of Article 27, the first being the rela35 For more detail, see, e.g. R. Satkauskas, ‘Use of Diacritics: Towards a New Standard of Minority Protection?’, Lithuanian Foreign Policy Review, No. 21, 2008, pp. 112-135. 36 John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada, Communications Nos. 359/1989 and 385/1989, Report of the CCPR, vol. II, 1992-1993, UN Doc. No. A/48/40, pp. 91-103. 37 Id., Para. 11.2. 38 J.G.A. Diergaardt et al. v. Namibia, Communication No. 760/1997, Report of the CCPR, Vol. II, 1999-2000, UN Doc. No. A/55/40, pp. 140-148.

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tionship of Article 27 to the right to a fair trial (Art. 14). The second aspect is the clarification of the meaning of culture within the context of Article 27. The complainants were descendants of indigenous Afrikaans settlers in Namibia. Certain of their self-government rights were ensured during the occupation of the territory by South Africa. However, since the independence of Namibia, no such rights were provided. Furthermore, all their communal lands and some assets were expropriated by the state. The complainant alleged that the confiscation of all property collectively owned by the community robbed the community of the basis of its economic livelihood, which in turn was the basis of its cultural, social and ethnic identity. The complainant contended that Article 27 is further violated by the fact that all court proceedings are in English in Namibia, since it is the only official language of the country. As a consequence, the complainants had considerable translation and interpretation costs at all court proceedings related to their case. In its decision the Committee referred to its earlier case law, which illustrated that the right of members of a minority to enjoy their culture under Article 27 includes protection to a particular way of life associated with the use of land resources through economic activities, such as hunting and fishing, especially in the case of indigenous peoples. However, in the present case the Committee was unable to find that the complainants’ could rely on Article 27 to support their claim for exclusive use of the pastoral lands in question. This conclusion was based on the Committee’s assessment of the relationship between their way of life and the lands covered by their claims. Although their community had owned the land for about 125 years, this had not given rise to a distinctive culture or a distinctive way of raising cattle. Thus the Committee found no violation of Article 27. The Committee also declared that the required use of the English language in court proceedings was not an issue of Article 27, but Article 14, the right to a fair trial. However, it did not find a breach, since the complainants did not demonstrate how the use of English at court had affected their right to a fair hearing. Nevertheless, with respect to some official language issues, the Committee declared a violation of Article 26 (equality before the law, non-discrimination). Traditionally, the sphere of minority language rights only included the communication within the community, for example the right to have religious services, publications or education on their mother tongue. However, nowadays language rights seem to have widened, and even though the breach does not occur in the sphere of minority rights (i.e. Art. 27), but other rights of the Covenant (e.g. Art. 17), it directly influences the possibility of the use of the minority language. A specific example of this is the condemnation of such laws, which require the compulsory change of a name into the spelling of the official language (as seen in the Bulgakov v. Ukraine and Raihman v. Latvia cases). Article 27 serves as the protection of the existence of language, thus the requirement by the state to use the official language of the state in court proceedings does not violate Article 27. Naturally, it might be difficult for a person with a minority language to understand legal procedures

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in another language, but – usually – the burden of the extra costs brought about by the use of translators and interpreters shall be borne by the individual and not the state. Nevertheless, it can occur that the individual can successfully claim that his or her right to a fair trial (Art. 14 of ICCPR) was violated due to the language barriers.39

5.2.3

Enjoyment of One’s Own Culture

Culture is a very wide concept. According to Webster’s Dictionary – among others – it means ‘the integrated pattern of human knowledge, belief, and behaviour that depends upon the capacity for learning and transmitting knowledge to succeeding generations’, as well as ‘the customary beliefs, social forms, and material traits of a racial, religious, or social group’ and ‘the characteristic features of everyday existence (as diversions or a way of life) shared by people in a place or time.’ Alternatively it can also mean ‘a way of thinking, behaving, or working that exists in a place or organization (such as a business).’40 In the context of Article 27, the following are all considered to be part of culture: the way of life, thinking, belief, behaviour, attitude toward nature, relationship to land, ways of healing and used medicine, shared history and legends, ceremonies and customs. Additionally, culture also includes certain economic rights, for example the right to work, the right to property41 etc. Article 27 imposes an obligation on the state parties, not only to protect immaterial aspects of the minority culture, but also to offer legal protection for the material foundation of such culture. The Committee articulated in the Länsman cases a test of whether the impact is so substantial that it does effectively deny Article 27 rights. All three Länsman cases42 dealt with the effect of certain economic activities (logging, stone extraction and transportation) on reindeer husbandry, and as such on the enjoyment of the Sami minority’s right to enjoy their own culture in Finland. In the third case, titled

39 See e.g. Human Rights Committee, General Comment No. 32, Art. 14: Right to equality before courts and to a fair trial, UN Doc. CCPR/C/GC/32 (2007); Human Rights Committee, General Comment No. 18, Nondiscrimination, Thirty-seventh session, 10 Nov. 1989; Domukovsky and Others v. Georgia, HRC Communications 623/1995, 624/1995, 626/1995, 627/1995, CCPR/C/62/D/623/1995 (1998), CCPR/C/62/D/624/1995 (1998), CCPR/C/62/D/626/1995 (1998), CCPR/C/62/D/627/1995 (1998), Para. 18.7; Guesdon v. France, HRC Communication 219/1986, CCPR/C/39/D/219/1986 (1990), Para. 10.2; Harward v. Norway, HRC Communication 451/1991, CCPR/C/51/D/451/1991 (1994), Para. 9.5; Sobhraj v. Nepal, HRC Communication 1870/2009, CCPR/C/99/D/1870/2009 (2010), Para. 7.2; Singarasa v. Sri Lanka, HRC Communication 1033/2001, CCPR/C/81/D/1033/2001 (2004), Para. 7.2. 40 Merriam-Webster’s website, www.merriam-webster.com/dictionary/culture. 41 E.g. Brok v. The Czech Republic, Communication No. 774/1997, Report of the CCPR, Vol. II, 2001-2002, UN Doc. No. A/57/40, pp. 110-116. 42 I. Länsman v. Finland, Communication No. 511/1992, Report of the CCPR, Vol. II, 1994-1995, UN Doc. No. A/50/40, pp. 66-76; Jouni E. Länsman et al. v. Finland, Communication No. 671/1995, Report of the CCPR, Vol. II, 1996-1997, UN Doc. No. A/52/40, pp. 191-204; Länsman III v. Finland, Communication No. 1023/2001, Report of the CCPR, Vol. II, 2004-2005, UN Doc. No. A/60/40, pp. 90-102.

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43 Länsman III v. Finland, Communication No. 1023/2001, Report of the CCPR, Vol. II, 2004-2005, UN Doc. No. A/60/40, pp. 90-102. 44 O. Sara et al v. Finland, Communication No. 431/1990, Report of the CCPR, Vol. II, 1993-1994, UN Doc. No. A/49/40, pp. 257-268. 45 Äärelä and Näkkäläjärvi v. Finland, Communication No. 779/1997, Report of the CCPR, Vol. II, 2001-2002, UN Doc. No. A/57/40, pp. 117-130. 46 Jonassen v. Norway, Communication No. 942/2000, Report of the CCPR, Vol. II, 2002-2003, UN Doc. No. A/58/40, pp. 456-470. 47 Poma v. Peru, Communication No. 1457/2006, Report of the CCPR, Vol. II, 2008-2009, UN Doc. No. A/64/40, pp. 216-222.

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was a member of the Aymara indigenous community, which have populated that area and lived from the same farming activity for hundreds of years. Since the 1990s the claimant tried to stop the further diversion of natural waters through court proceeding, although the proceedings never ended in a final judgement. The lack of water destroyed the family business and severely interfered with their private life and the practice of their ancient culture and traditions. Although the claimant cited both Article 17 (interference with private life) and Article 27 as the violated rights, the Committee refused to examine Article 17 and declared that the issues raised are related to Article 27. When declaring the violation of Article 27, the reasoning of the Committee stated that the right to enjoy a minority culture may also include a way of life, economic and social activities, which are closely associated with territory and the use of its resources. The protection of these rights is aimed at the insurance of the survival and continued development of cultural identity, thus enriching the fabric of society as a whole. The Committee recognized that a state may legitimately take steps to promote its economic development. Nevertheless, it recalled that economic development may not undermine the rights protected by Article 27. The Committee pointed out that measures whose impact amounts to a denial of the right of a community to enjoy its own culture are incompatible with Article 27, while measures with only limited impact on the way of life and livelihood would not necessarily amount to a denial of the rights under Article 27. Thus case-by-case analysis is necessary and proportionality should also be examined. When citing Article 27, the individual has to demonstrate that the restricted activity truly forms part of the minority culture and that the restriction based upon that activity makes it impossible for them to practice that aspect of the culture. In the Howard v. Canada48 case the Human Rights Committee clarified both of these requirements. The case is about the limitation of the complainant’s right to fish and its impact on his right to enjoy his own culture, in community with other members of his group. The complainant is the member of an aboriginal people of Canada, which concluded treaties with the British Crown, dealing, inter alia, with indigenous hunting and fishing rights. According to a treaty concluded in 1923 the indigenous people surrendered all their fishing and hunting rights outside of the reserve. In 1985 the claimant was caught and fined for fishing outside of the reserve. He took the case to court, and finally the Supreme Court of Canada declared that, by force of the 1923 treaty, the indigenous people had lost their rights and had no legal basis to claim it back. After a joint request from the indigenous people, the Ontario Government signed an agreement with them allowing for the exercise of certain hunting and fishing rights outside the reserves. This agreement, however, was terminated by the newly elected Ontario government half a year later. The claimant complained generally

48 Howard v. Canada, Communication No. 879/1998, Report of the CCPR, Vol. II, 2004-2005, UN Doc. No. A/60/40, pp. 12-28.

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that he and all other members of his First Nation were being deprived of the ability to exercise their aboriginal fishing rights individually and in community with each other and that this threatened their cultural, spiritual and social survival. He contended that hunting, fishing, gathering and trapping were essential components of his culture, and that denial of the ability to exercise this right imperilled transmission of the culture to other persons and to later generations. Specifically, the claimant alleged that the Supreme Court judgement in his case was incompatible with Article 27 of the Covenant, as well as the unilateral termination of the 1995 agreement by the Ontario Government. Furthermore, he stated that the fishing licence required by the state for fishing outside the reserve also violates Article 27. Although both the complainant and the state emphasized the 1923 treaty frequently in their submissions, the Committee expressed that it is not a matter for it to interpret or examine. It declared that it is undisputed that the complainant was a member of a minority enjoying the protection of Article 27 of the Covenant and thus he was entitled to the right to enjoy his culture. Thus it simplified the issue to the question whether Ontario’s Fishing Regulations as applied to the author by the Canadian courts have deprived him, in violation of Article 27 of the Covenant, of the ability to exercise, individually and in community with other members of his group, his aboriginal fishing rights which are an integral part of his culture.49 The Committee rejected the argument that the requirement of obtaining a fishing licence would in itself violate his rights under Article 27. Ultimately, the Committee decided that the information before it was not sufficient to justify the finding of a violation of the Covenant. Most of the cases invoking the violation of the right to culture in the practice of the Human Rights Committee are related to issues with clear financial aspects. Economic activities may come within the ambit of Article 27, if they are an essential element of the culture of an ethnic community. To enjoy a minority culture may mean a way of life, economic and social activities, which are closely associated with territory and the use of its resources. The protection of these rights is aimed at ensuring the survival and continued development of cultural identity, thus enriching the fabric of society as a whole. In relation to this, the Committee observed that Article 27 does not only protect traditional means of livelihood of national minorities. Even if the members of the minority have adapted their working methods over the years and practice it with the help of modern technology, this does not prevent them from invoking Article 27 of the Covenant. The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context.

49 Id., p. 26.

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The Committee noted that the infringement of a minority’s right to enjoy their own culture, as provided for in Article 27, may result from the combined effects of a series of actions or measures taken by a state party over a period of time and in more than one area of the state occupied by that minority. Thus, the Committee considers the overall effects of such measures on the ability of the minority concerned to continue to enjoy their culture. This means that despite certain difficulties and economic losses caused by the state measures, if the community is still capable of enjoying their culture, then no violation occurs. As it can be derived from the Committee’s practice, States parties may understandably wish to encourage economic development and allow economic activity and measures which have a limited impact on the way of life of persons belonging to a minority will not necessarily amount to a violation of Article 27. Article 27 requires that a member of a minority shall not be denied the right to enjoy his culture. Measures whose impact amounts to a denial of the right are incompatible with the obligations under Article 27. However, measures that have a certain limited impact on the way of life and the livelihood of persons belonging to a minority will not necessarily amount to a denial of the rights under Article 27. Restrictions on the right must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant. Thus in order to determine whether the restriction is acceptable we need to consider: firstly, is it reasonable; secondly, is it objective and finally, does the restriction violate other articles of the Covenant. The question that has to be asked in relation to restrictions is whether the impact of the legislation or state-authorized activity is so substantial that it does effectively deny the concerned persons the right to enjoy their religious, linguistic and/or cultural rights. The rights guaranteed in Article 27 are directed at ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned. States enjoy a certain degree of discretion in the application of Article 27, which is normal in all regulation of economic activities. Nevertheless, when a state plans an economic activity affecting the life and rights of minorities, it should contact the concerned group and involve them in the planning and decision-making.50 During the decision-making process it has to be accepted, that the state cannot ignore the economic and social rights of that part of the population (usually coming from the majority) whose subsistence depends upon certain aspects of the state-authorized economic activities (e.g. logging, stone

50 See General Comment No. 23, Para. 7; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly Res. 47/135, 18 December 1992. Arts. 2.3, 5; ILO Convention No. 169, Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989, Arts. 5-7, 20 (1), 22 (3), 25 (2), 27 (1), 33 (2).

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extraction, forestry etc.). In a democratic society compromises are necessary, even if they fail to fully satisfy all the parties concerned.51

5.3

Roma Issues at the Human Rights Committee

The Human Rights Committee addresses the protection of minorities from two different perspectives: 1) when considering the periodic reports of states; 2) when considering the individual complaints.

5.3.1

Roma Issues in Periodic Reports of States under the ICCPR

Periodic reports of states generally include the situation of minorities in the country when reporting about the implementation of Article 27. Nevertheless, many of them inform the Committee about the issues of Roma not only under Article 27 but also under other articles of ICCPR.52 Albania, for example, in its report summarized its National Strategy for Roma as part of the fight against discrimination and a wider guarantee of human rights.53 While appreciating the legislative and other acts of the state, the Committee expressed its concern over the ill-treatment of Roma detainees,54 and the lack of cooperation of the state with Greek authorities with respect to more than five hundred Albanian Roma street children who went missing.55 The Committee declared that Albania should take immediate steps for a more effective implementation of the National Strategy for Roma, especially to provide all Roma with identity cards to enable them to participate in voting, to include them in decision-making, to refrain from blocking access to their existing livelihoods and allocate adequate earmarked resources for the development programs.56 Similar statements and suggestions can be found in relation to other states’ reports as well.57

51 See, e.g. A. Yupsanis, ‘Article 27 of the ICCPR Revisited – The Right to Culture as a Normative Source for Minority/Indigenous Participatory Claims in the Case Law of Human Rights Committee’, Hague Yearbook of International Law, Vol. 26, 2013, pp. 359-411. 52 E.g. Report of the Human Rights Committee, Vol. I, 2013-2014, UN Doc. No. A/69/40, (hereinafter: CCPR Report 2013-2014/I.); Report of the Human Rights Committee, Vol. I, 2012-2013, UN Doc. No. A/68/40, (hereinafter: CCPR Report 2012-2013/I.); Report of the Human Rights Committee, Vol. I, 2011-2012, UN Doc. No. A/67/40, (hereinafter: CCPR Report 2011-2012/I.); Report of the Human Rights Committee, Vol. I, 2010-2011, UN Doc. No. A/66/40, (hereinafter: CCPR Report 2010-2011/I). 53 CCPR Report 2013-2014/I, p. 33. 54 Id., p. 35, referring to Arts. 2, 7, 10. 55 Id., p. 37, referring to Art. 24. 56 Id., p. 38, referring to Arts. 2, 25, 26 and 27. 57 E.g. Czech Republic, CCPR Report 2013-2014/I, pp. 45-47; Ukraine, CCPR Report 2013-2014/I, pp. 57-58; Latvia CCPR Report 2013-2014/I, pp. 127-128; Lithuania, CCPR Report 2012-2013/I, p. 40; Germany, CCPR Report 2012-2013/I, p. 58; Portugal, CCPR Report 2012-2013/I, pp. 64-65.

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The concerned states increasingly take a comprehensive approach in protecting the Roma.58 The different challenges and improvements of their protection appear in the periodic reports at the relevant articles. The discussed Roma-related issues in the periodic reports of states often involved several articles of the ICCPR, but expressly with respect to Article 27, the Committee declared its concern in the following cases: – discriminatory remarks against the Roma by politicians and in the media and at extremist demonstrations;59 – having a pig farm on a World War II Roma concentration camp in Lety, the Czech Republic;60 – territorial segregation of Roma from other members of the society (e.g. non-allowance of movement, segregated settlements);61 – segregation in education (e.g. Roma-only classes, over-representation of Roma children in schools for pupils with mild mental disabilities, placement of Roma children in special needs classes);62 – hate speech against minorities;63 – lack of specific law prohibiting the establishment of associations that instigate hatred and racist propaganda;64 – acts of vandalism and arson committed against the settlements of Roma;65 – involuntary sterilization of Roma women, lack of information about voluntary sterilization in minority language;66 – limited possibilities to participate in decision-making and political life, especially at a national level;67 – the right of a linguistic minority to choose and change one’s own name in the minority language;68

58 But see, e.g. I. Uzunova, ‘Roma Integration in Europe: Why Minority Rights Are Failing?’, Arizona Journal of International & Comparative Law, Vol. 27, No. 1, 2010, pp. 283-324. 59 CCPR Report 2013-2014/I, p. 46; CCPR Report 2012-2013/I, p. 270; CCPR Report 2010-2011/I, p. 43. 60 CCPR Report 2013-2014/I, p. 47. See also Human rights of Roma and Travellers in Europe, Council of Europe, Strasbourg, February 2012, pp. 60-61. 61 CCPR Report 2013-2014/I, p. 47. 62 CCPR Report 2013-2014/I, pp. 47, 55, 128; CCPR Report 2012-2013/I, pp. 53, 273; CCPR Report 20102011/I, p. 53. 63 CCPR Report 2013-2014/I, p. 58; CCPR Report 2012-2013/I, pp. 53, 58. 64 CCPR Report 2012-2013/I, p. 53. 65 CCPR Report 2013-2014/I, p. 58. 66 CCPR Report 2013-2014/I, p. 242; CCPR Report 2012-2013/I, p. 252. 67 CCPR Report 2013-2014/I, p. 44; CCPR Report 2010-2011/I, p. 84. 68 CCPR Report 2013-2014/I, p. 123; CCPR Report 2012-2013/I, p. 177.

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– decrease of measures in support of teaching minority languages and cultures in minority schools (lack of textbooks, production of low quality materials for them etc.),69 and complete lack of education and media on minority language;70 – desecration, contamination and destruction of sacred areas;71 – insufficient consultation with the minority on matters of interest to their community;72 – forced evictions, interference and dispossessions of land;73 – state interference with culturally significant economic activities of minorities without free, prior and informed consent of the community;74 – denial of access to state services, government benefits;75 – lack of protection of foreign nationals who belong to a minority living in the state party.76 Although the reports do not expressly state this, it can be seen from the arguments of the Committee that, when discussing minority issues, they take into consideration the Declarations of the UN General Assembly on Minorities (1992)77 and on Indigenous Peoples (2007).78 This is especially so when examining the positive actions a state should take for the protection of a minority. Although General Comment No. 23 provides an explanation of the positive actions expected from the state party to Article 27, it can be supplemented by the requirements of the Declaration on Minorities. These include the facilitation of participation by the members of the minority in the economic life and development, in the life of the society, in legislation concerning them as well as the whole society; the entitlement to maintaining relationships and contact with other individuals belonging to the same minority group (whether they are living in the same country or abroad); the planning of national policies and programs to ensure the rights; and the cooperation of states in the interest of protection.79

69 70 71 72 73 74 75 76 77

CCPR Report 2013-2014/I, p. 128; CCPR Report 2012-2013/I, p. 53. CCPR Report 2011-2012/I, p. 43. CCPR Report 2013-2014/I, p. 138. Id., p. 138. CCPR Report 2012-2013/I, p. 38; CCPR Report 2010-2011/I, pp. 77, 139. CCPR Report 2012-2013/I, p. 102. CCPR Report 2011-2012/I, p. 41. Id., p. 33. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly Res. 47/135, 18 December 1992. 78 United Nations Declaration on the Rights of Indigenous Peoples, General Assembly Res. 61/295, 13 September 2007. 79 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly Res. 47/135, 18 December 1992. See, e.g. Arts. 2, 4, 5-7.

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5.3.2

Roma Issues in the Individual Complaints under the ICCPR

The CCPR usually receives two or three individual complaints annually which concern Article 27. The practice of the Human Rights Committee indicates, that Article 27 is not always cited, even if at first glance the case looks like a minority issue. This can be demonstrated through some typical cases which concern the Roma. The subject matter of the Katsaris v. Greece case80 was the alleged failure to thoroughly investigate police violence and ill-treatment against an ethnic Roma person. Mr. Nikolaos Katsaris claimed that he was kicked, punched, verbally abused and insulted by police officers because of his ethnicity. The claimant – with others – was taken into custody, but was not informed about any of his rights. After his release, the claimant filed a criminal complaint to the prosecutor against the police officers. Based on the complaint hearings were held, but several of the relevant procedural rules were breached (e.g. unreasonably prolonged procedure, no notification to the claimant of the hearing, no order for forensic medical examination). The Committee found that the acts of the state amounted to a violation of Article 2 (3), read in conjunction with Article 7, and Article 2 (1), as well as Article 26, namely the right to effective remedy, prohibition of torture or cruel, degrading treatment, non-discrimination and equality before the law. As can be seen, Article 27 was not considered as a relevant right in the case. Thus proper assessment of the events is necessary in order to decide which rights are relevant in the case. In this instance the violation occurred against an individual and not the community, and did fit into other articles of the Convention. Similar conclusions can be drawn with respect to the Naidenova et al. v. Bulgaria case81 the subject matter of which was the impending eviction and demolition of housing of a long-standing Roma community. The concerned impoverished Roma community had lived in a settlement in Sofia for over seventy years. During this time, the housing had been de facto recognized by public authorities, through providing such services as mail, electricity, registration of address. In 2006 the community was informed that they were unlawfully living on municipal land. Since they did not leave the settlement voluntarily an eviction order was issued. Court proceedings started and the final judgement was delivered by the Supreme Administrative Court of Bulgaria in 2009, which ordered the imminent execution of the eviction order. Most of the community had left the area by that time, however 34 persons still lived there, including 15 children. According to the claimant, none of those to be forcibly evicted were offered alternative housing and no meaningful consultation had taken place with the community. The complaint stated that a persistent pattern of 80 Katsaris v. Greece, Communication No. 1558/2007, Report of the CCPR, Vol. II (Part One), 2012-2013, UN Doc. No. A/68/40, pp. 35-51. 81 Naidenova et al. v. Bulgaria, Communication No. 2073/2011, Report of the CCPR, Vol. II (Part One), 20122013, UN Doc. No. A/68/40, pp. 442-455.

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racial discrimination against the Roma was visible, including the lack of education and employment, which would be necessary to afford housing at market rates. The claimant submitted that the forced eviction was arbitrary because it was undertaken in a racially discriminative manner, thus the evictions amounted to a violation of Article 17 (right to protection against arbitrary and unlawful interference with one’s privacy, home, family etc.), Article 2 (non-discrimination) and Article 26 (equal protection). The Committee found in its decision that In the light of the long history of the authors’ undisturbed presence in the Dobri Jeliazkov community, the Committee considers that, by not giving due consideration to the consequences of the authors’ eviction from the Dobri Jeliazkov, such as the risk of their becoming homeless, in a situation in which satisfactory replacement housing is not immediately available to them, the State party would interfere arbitrarily with the authors’ homes, and thereby violate the authors’ rights under Article 17 of the Covenant, if it enforced the eviction order of 24 July 2006.82 The Committee established the violation of Article 17, but found that the claims under Art. 2 and 26 were insufficiently substantiated for the purposes of admissibility, thus the Committee was hindered from examining the racial or discriminatory nature of the case. Even though ethnic origin or being a member of a minority played a role in these cases, the narrow subject matter was not the practice of culture, religion or language, but other articles of the Covenant. The same subject matter as in the above-mentioned Naidenova et al. v. Bulgaria, appeared in the Georgopoulos et al. v. Greece83 case, although the conclusion is slightly different. In this instance the Committee concluded that the arbitrary and unlawful eviction and demolition of the home of several Roma families had significant impact on their family life and infringement of their rights to enjoy their way of life as a minority. Since the Committee declared a breach of Article 27, it was deemed unnecessary to examine the other cited Articles, namely Articles 17, 23 and 26. Although Article 27 was not cited in the following case, it addresses hate speech and discrimination against people of Roma origin. In the Vassilari et al. v. Greece case, members of a Roma settlement in Greece complained that a Greek court failed to appreciate the racist nature of an open letter published in a newspaper. The open letter, signed by 1,200 non-Roma residents of the area, demanded eviction of the Roma from the illegal settlement

82 Id., p. 455, Para. 14.7. 83 Georgopoulos et al. v. Greece, Communication No. 1799/2008, Report of the CCPR, Vol. II, 2009-2010, UN Doc. No. A/65/40, pp. 377-389.

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on a land owned by a university and accused the Roma community of specific crimes, including physical assault, battery and arson. In the event of inaction by the university or the authorities, the letter threatened militant action. The case was brought before the national court, which declared that the open letter published in the newspaper did not violate the Greek laws against discrimination. The claimants alleged violations of equal treatment under the law (Art. 26) and fair trial (Art. 14). The latter claim was inadmissible, and the Committee was of the view that the facts before it did not disclose a violation of any of the articles.

5.4

Concluding Remarks

The practice of the Human Rights Committee indicates, that Article 27 is not always cited, even if at first glance the case looks like a minority issue. Examination of the case law of the Committee over the last twenty years indicates that it rather invokes the breach of other rights of the Covenant – if possible – than the rights guaranteed in Article 27. Notwithstanding, even a reservation to Article 27 cannot detain the Committee from condemning a violation of rights. This is highlighted by the example of Turkey: Turkey reserves the right to interpret Article 27 in accordance with its Constitution and the Treaty of Lausanne. This means in general that the Turkish state does not guarantee minority rights to certain ethnic groups (e.g. Kurds) and it has also excluded the right of Turkish nationals to refer to Article 27 in an individual complaint84 to the Human Rights Committee. Turkey’s reservation was objected to by several European states (e.g. Finland, Germany and Sweden). Despite the reservation, the Human Rights Committee expressed concerns for the restrictions and discrimination faced by the Kurds and Roma and called on the Turkish Government to consider the withdrawal of the reservation.85 The rights guaranteed in Article 27 can be restricted, they are not absolute rights. Thus in order to determine whether the restriction is acceptable we need to consider: firstly, is it reasonable; secondly, is it objective and finally, does the restriction violate other articles of the Covenant. The question that has to be asked in relation to restrictions is whether the impact of the state-authorized economic activity is so substantial that it does effectively deny the concerned persons the right. The general protection of minority rights should cover the following: protecting a minority’s existence, including their physical integrity; protecting and promoting cultural 84 Individual complaints can be submitted to the Human Rights Committee in accordance with the Optional Protocol to the International Covenant on Civil and Political Rights, New York, 16 December 1966, UNTS Reg. No. 14668. It has significantly fewer parties than the ICCPR: 115 states have become parties, as of May 2015. 85 Report of the Human Rights Committee, Vol. I, 105-107th sessions, 2012-2013, UN Doc. No. A/68/40. p. 69.

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and social identity; ensuring non-discrimination and equality, including ending structural or systemic discrimination; and ensuring effective participation of minorities in public life, especially in decisions that affect them.86 This complex expectation cannot be met by Article 27. It provides for only a minimum standard and only in certain aspects of minority life. Thus other articles of the ICCPR seem to be equally important in providing protection for the Roma minority. Article 2 on the prohibition of discrimination is an important ‘supplement’ to Article 27. ‘The question of what is or is not discriminatory boils down to a question of justification of differences in treatment.’87 Traditionally the concept of antidiscrimination policy included assimilation, which partly worked in most countries in relation to Roma. While the majority of Roma people are settled down and have lost their traditional culture and language, they have not become really integrated into the majority society. This phenomenon results in the new face of minority needs: mostly the Roma minority’s right to practice religion, language and culture is guaranteed, but they experience discrimination in other fields (e.g. housing, labour, education) and are greatly burdened by poverty.88 This reality of Roma life has an effect on the application of ICCPR, Roma cases either address discrimination (Art. 2) or a specific right (e.g. the right to life, fair trial, privacy, prohibition of torture, equal protection), and only additionally refer to Article 27.

86 G. McDougall, Addendum to the Report of the Independent Expert on Minority Issues, Achieving the Millennium Development Goals (MDG) for Minorities, a Review of MDG Country Reports and Poverty Reduction Strategies by the UN Human Rights Council, 2 March 2007, A/HRC/4/9/Add.1, pp. 2-3. 87 P. Thornberry, M. A. M. Estébanez, Minority rights in Europe, 2nd ed., Council of Europe Publishing, 2006, p. 148. 88 See, e.g. Living together: Combining diversity and freedom in 21st-century Europe, Report of the Group of Eminent Persons of the Council of Europe, Strasbourg 2011. ; D. M. Crowe, A History of the Gypsies of Eastern Europe and Russia, New York, St. Martin’s Griffin, 1996; D. Farget, ‘Defining Roma Identity in the European Court of Human Rights’, International Journal on Minority and Group Rights, Vol. 19, 2012, pp. 291-316; I. Klimova-Alexander, The Romani voice in world politics: the United Nations and non-state actors, Ashgate, 2005; I. Pogány, ‘Minority Rights and the Roma of Central and Eastern Europe’, Human Rights Law Review, Vol. 6, Issue 1, 2006, pp. 1-26; A. Simoni, ‘Roma and Legal Culture: Roots and Old and New Faces of a Complex Equality Issue’, European Anti-Discrimination Law Review, Issue 13, December 2011, pp. 11-19.

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When Environmental Protection Meets Human Rights – In the Wake of the Prestige

Aniko Raisz and Eszter Lilla Seres* This article seeks to point out an interesting intersection of environmental protection and human rights in the context of the catastrophe of the Prestige, an oil tanker – i.e. a situation where environmental interests may prevail over human rights requirements. The national courts as well as the European Court of Human Rights had to face such considerations in the context of deciding upon the possible liability of the captain of the Prestige. There are several international organisations working on the problems associated with the prevention and eventual removal of marine pollution.1 Oil spills from vessels – including both operational pollution, meaning oil pollution from the normal operation of vessels, and accidental pollution, meaning oil pollution discharged from shipwrecks or due to other catastrophes – have caused significant problems for mankind, and maritime trade in particular, during the last five decades. However, regulators found themselves extremely difficult to keep up with the needs of fast innovation and technological development – the appearance of ‘supertankers’ have posed more and more challenges to the community of nations. Torrey Canyon is regarded as the first ‘supertanker’2 that ran aground at the shore of Great Britain during its last journey and caused significant damages3 to the United Kingdom and France, thereby serving as a catalyst for the development – or rather estab-

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Dr. Anikó Raisz PhD, associate professor, International Law Department, Faculty of Law and Political Sciences, University of Miskolc, H-3513 Miskolc-Egyetemváros, [email protected]. Eszter Lilla Seres, student, Faculty of Law and Political Sciences, University of Miskolc, H-3513 Miskolc-Egyetemváros, [email protected]. Research was conducted through the Centre for Economic Excellence for the Sustainable Management of Natural Resources operating on the field of strategic research of the University of Miskolc. Such as the International Maritime Organisation, the United Nations Environment Programme, and various NGOs, such as the Comité Maritime International, INTERTANKO (International Association of Independent Tanker Owners), and EMSA (European Maritime Safety Agency). Ved P. Nanda: The ‘Torrey Canyon’ Disaster: Some Legal Aspects, Denver Law Journal 44 (1976) 400-425; Kardos András: Szennyezés vízben és víz mentén – A XXI. század problémái, in: Raisz Anikó: A nemzetközi környezetjog aktuális kihívásai, Miskolci Egyetem, Miskolc, 2012, 73-83. It was estimated that the damages caused by the about 80,000 ton crude oil discharged into the sea exceeded GBP 3.25 million.

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Aniko Raisz and Eszter Lilla Seres lishment – of international environmental law.4 The case of Torrey Canyon is also interesting because the possibilities arising from the malfunction of the vessel were largely ignored and the case was focused around the possible liability of the captain and crew of the ship.5 That situation revealed an important intersection of environmental protection and human rights, as human rights were not used (among others) to promote and enforce environmental considerations – as is the practice of human rights courts6 –, but on the contrary, the promotion and protection of environmental interests (through criminal law) may be in conflict with human rights requirements.

6.1

Oil Spills from Vessels

As noted earlier, oil spills may be released in the course of normal operations of ships and may also be the result of tankers running aground, crashing, or sustaining other damages to the hull of the ship. In the last decades, international law moved toward finding solutions to such problems, for example by adopting the 1973 International Convention for the

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For more details, see Dinah Shelton–Alexandre Kiss: Judicial handbook of environmental law, Hertfordshire, United Nations Environmental Programme, 2005; Kiss–Shelton: International Environmental Law, Ardsley, NY, UNEP, Transnational Publishers, 2004; Alan Boyle–Catherine Redgwell–Patricia Birnie: International Law and the Environment, Oxford University Press, 2009; Daniel Bodansky–Jutta Brunnée–Ellen Hey (eds.): The Oxford Handbook of International Environmental Law, Oxford University Press, New York, 2007. Tormod Rafgard: Tankers, Big Oil and Pollution Liability, 2012, 54, www.oilpollutionliability.com/ (19 May 2014). See, in particular, the relevant case-law of the European Court of Human Rights and the Inter-American Court of Human Rights, as well as: SHELTON: The Environmental Jurisprudence of the European Court of Human Rights, 2003-2004, The global community: yearbook of international law and jurisprudence 1 (2004) 293-303; SHELTON: Human Rights and the Environment: Jurisprudence of Human Rights Bodies, Environmental policy and law 32 (2002) 3-4, 158-167; FODOR László: Az Emberi Jogok Európai Bíróságának ítélete a zajterhelés csökkentésére tett intézkedésekről és a bírósági eljárás időtartamáról. Az intézkedések következetes elégtelensége és az eljárás elhúzódása egyaránt megalapozza az állam felelősségét. JeMa 3 (2011) 86-92; RAISZ Anikó: Az Emberi Jogok Európai Bíróságának ítélete a zajszennyezéssel összefüggő egyes emberi jogi kérdésekről: Sérti-e a rendszeres tűzijáték a magánélethez és a tulajdonhoz való jogot? JeMa 2 (2012) 64-68; SZEMESI Sándor: Környezetvédelmi kérdések az Emberi Jogok Európai Bírósága gyakorlatában, in: RAISZ Anikó: A nemzetközi környezetjog…, 175-184; MARINKÁS György: Az őslakosok jogainak megjelenése az Amerikaközi Rendszerben: az őslakosok joga ősi földjeikre, in: RAISZ: A nemzetközi környezetjog…, 108-117; RAISZ Anikó: A nemzetközi környezetvédelmi bíráskodás jelene és jövője, in: Collegium Doctorum Konferencia, Miskolc, 19 April 2012. Miskolc, Bíbor Kiadó, 2013. Paper 37; RAISZ Anikó: Gondolatok a nemzetközi környezetvédelmi bíráskodásról, GÉP, 6 (2012) 33-36. For more meeting points, see SZILÁGYI János Ede: Környezetvédelem a Világkereskedelmi Szervezet jogában, in: SZILÁGYI János Ede (ed.): Környezetjog: Tanulmányok a környezetjogi gondolkodás köréből, Novotni Alapítvány, Miskolc, 2010, 25-50; SZILÁGYI János Ede: WTO-jog és környezetvédelem, in: BOBVOS Pál (ed.): Reformator iuris cooperandi, Pólay Elemér Alapítvány, Szeged, 2009, 485-511. See also: Manual on Human Rights and the Environment – Principles Emerging from the Case-Law of the European Court of Human Rights; Committee of Ministers, Ann. 2005/186, 16 December 2005, CDDH, 61st meeting, Final Activity Report, point 2.

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Prevention of Pollution from Ships, as modified by the Protocol of 1978 (MARPOL),7 as well as Annex I laying down provisions regarding both operative and accidental discharges. In the context of accidents, the introduction of the double-hull requirement is of utmost importance, essentially stipulating that a 10% overprotection is required for determining the conditions required for the safe operation of tankers through technical calculations.8 A problem concerning the rules of MARPOL is that its provisions apply to oil tankers delivered after 1982; Prestige, the vessel this paper focuses on, was set afloat in 1976, meaning that the progressive rules of MARPOL do not apply to this particular vessel.9 Another problem regarding the vessel is that it was registered in a flag of convenience, namely the Bahamas. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) does not lay down specific provisions in this respect, meaning that the rules of the state whose flag the ship is flying must be applied mutatis mutandis, so that ‘[t]here must exist a genuine link between the State and the ship.’10 Significant difficulties in this respect include, among others, that ships may be registered in a state where the owner of the ship does not have citizenship; the registration related requirements of the state may be easy to meet; the taxes imposed by the state on ships may be low or are not raised; the state may not have jurisdiction to enforce international rules; and the crewmembers of the ship may be the citizens of any other state.11 Since the standards to be met such vessels may be need significantly lower for vessels than for those flying under a ‘regular’ flag, vessels flying under a flag of convenience pose a significantly higher risk of accident – and an accident did happen in the case of the Prestige. In several cases, the lack or delay of any regulation was also an aggravating factor, since it often took a major catastrophe for international law to make an attempt to eliminate a problem through the adoption of an international convention: this is the reason why most of the oil spill related conventions were adopted after a major catastrophe (such state of affairs is not uncommon on the field of international environmental protection, unfortunately). Nevertheless, the continuous regulatory improvements had a positive impact: the number of shipping accidents has been decreasing continuously since 2000 due to the

7

A protocol was attached to the Convention in 1978 and the two documents entered into force in 1983. MARPOL was promulgated by Hungary under Act X of 2001. 8 MARPOL, Ann. I, Reg. 13F. 9 Ship Structure Committee: Case Study on Prestige: Complete hull failure in a single-hull tanker, www.shipstructure.org/case_studies/Prestige.pdf (19 May 2014) 10 Art. 91 UNCLOS; in M/V ‘SAIGA’ the International Tribunal for the Law of the Sea held that ‘the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.’ ITLOS, M/V ‘SAIGA’ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgement of 1 July 1999, Paras. 62-66. 11 Esko Antola: The Flag of Convenience System: Freedom of the Seas for Big Capital, Instant Research on Peace and Violence 4 (1974) 4, 195-205.

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strict rules applied by the IMO. Furthermore, GESAMP has shown that emissions also reduced significantly by 1990.12 However, the problems caused by oil spills are yet to be eliminated.

6.2

Rules of Liability

The protection afforded by international maritime conventions, such as MARPOL and UNCLOS, is insufficient, and the relevant provisions are frequently violated already in the course of arresting.13 Regulation 11 MARPOL lays down provisions that are exempted from the requirements pertaining to the discharge of oil (Regulation 9) and the prevention of oil pollution from ships while operating in special areas (Regulation 10). Accordingly, the provisions on discharging are not applicable the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result. According to Article 230 UNCLOS, monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards committed by foreign vessels beyond the territorial sea, and with respect to violations committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea. Furthermore, Article 220 UNCLOS stipulates that where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a state has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that state conforming and giving effect to such rules and standards, that state may require the vessel to give all information required to establish whether a violation has occurred. If the violation causes major damage or threat of major damage to the coastline or related interests of the coastal state, or to any resources of its territorial sea or exclusive economic zone, that state may institute proceedings, including detention of the vessel, in accordance with its laws. According to Article 221 UNCLOS, coastal states may take and enforce measures within and beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests from pollution

12 GESAMP: Impact of Oil and Related Chemicals on the Marine Environment, Reports and Studies No. 50, London, 1993, 25-27. 13 Birgitta Hed: Criminalisation of seafarers – will this contribute to improving, The Swedish Club, 1 (2005) 12-15.

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or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.

6.3

The Prestige Accident and Its Consequences

Another accident occurred in 2002, when the Prestige, a Liberian owned tanker, operated by a Greek crew, sunk with a cargo of 77,000 tons of oil beyond the 12 miles limit of territorial sea but within the 200 miles limit of the exclusive economic zone, i.e. about 28 miles from the shore. The ship was caught up in a storm at the Northwest coast of Spain and one of its tanks breached due to the difficult circumstances. After contacted by the captain, the Spanish authorities denied the vessel safe harbour. The captain then sought assistance from the Portuguese and French authorities but they were also unwilling to cooperate. Because of the delay – and the heavy weather the already damaged vessel was exposed to for hours –, part of the hull broke off, the ship began to sink, and it eventually broke into half. The captain of the ship was taken into custody under charges of failing to comply with the instructions of the port authorities and committing an offence of causing damage to natural resources.14 However, the coastal states also failed to perform their obligation to cooperate with the vessel as they all denied assistance to the ship. The first estimations indicated that the extent of natural damages was similar to the Exxon Valdez accident; in a lawsuit filed for damages, Spain claimed – on the ground of ‘gross negligence’15 – an amount of 700 million dollars in damages.16 The accident endangered various species of sharks and birds living in the area, and coast fishing was also suspended due to the extensive oil spill that reached the coasts of Galicia, thereby causing significant financial damages to the local fisheries industry. The event had sour consequences for the maritime shipping sector as well,17 since the European Court of Human Rights (ECtHR) ruled in 2009 that the arrest of the captain in 2002, his 83 days long custody, as well as bail being set at EUR 3,000,000 for his release was not inconsistent with Article 5(3) of the European Convention on Human Rights.18

14 Varga Miklós: Tankerbalesetek a tengeren, 232. www.publikon.hu/application/essay/536_1.pdf (15 June 2014). 15 Rafgard: Tankers. Big Oil and Pollution Liability, 306-307. 16 The claimed amount was subsequently raised to USD 2.5 billion due to the costs of removal. 17 The case was interesting not from the aspect of fundamental rights, but in the context of the issue of technical revision of vessels by the port state authorities. According to the Paris Memorandum of Understanding, ships stopping at European harbours are to be reviewed regularly and to be classified by their condition and the conditions on board. The Prestige case showed that such reviews are missing even from countries that ratified the convention, as the vessel was not inspected anywhere despite the fact that it stayed in various European harbours during the last 12 months prior to the incident. See: UNCTAD secretary report: Review of Maritime Transport, 2003, 41. 18 ECtHR, Mangouras v. Spain (GC), merits, 28 September 2010, point 93.

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The Spanish investigating judge remanded Mangourast in custody and set bail at EUR 3,000,000 under Articles 325 and 556 of the Criminal Code of Spain (Codigo Penal). (Mangouras later requested the reduction of bail to EUR 60,000, but the investigating judge refused the request.) Article 325 lays down provisions regarding crimes against natural resources and the environment, and stipulates that [a]ny person who […] causes or produces, directly or indirectly, emissions, discharges […] into […] inland or maritime waters in violation of general environmental laws and regulations likely to severely upset the balance of natural systems, shall be liable to a term of imprisonment of between six months and four years […]. Article 556 also stipulates that ‘[a]ny person who fails to comply with or objects to the instructions of the administrative authorities given in the course carrying out their duty shall be liable to imprisonment.’ The investigating judge believed that Mangouras committed the above crime when he failed to cooperate with the instructions of the Spanish authorities for over three hours – the instructions were to move the vessel away from the coast as far as possible.19 When he noticed the damages sustained by the vessel, Mangouras requested the Spanish authorities for safe harbour,20 but these requests were refused by the authorities consistently. It happens frequently that the captain of an oil tanker that sustains damages due to a force majeur event and eventually sinks is regarded as a criminal.21 Furthermore, such vessels usually sink either in the open sea or in waters falling within the jurisdiction of a foreign country, meaning that the captain must face a foreign legal system. Such situations – in the context of various accidents22 that are similar to the case of Mangouras – are frequently referred to in professional literature as scapegoating of seafarers.23

19 ECtHR, Mangouras v. Spain, 2010, point 17. 20 In addition to raising environmental and human rights issues, the case also required IMO to take action regarding the granting of refuge, thereby leading to the adoption of Res. A.949(23). According to section 1.3, when a ship has suffered an incident, the best way of preventing damage or pollution from its progressive deterioration would be to lighten its cargo and bunkers; and to repair the damage. Such an operation is best carried out in a place of refuge. However, to bring such a ship into a place of refuge near a coast may endanger the coastal state and the operation may be strongly objected to. Rescuing a vessel in open waters is much more difficult and less efficient due to its exposure to natural forces, thereby deteriorating the condition of the vessel and causing more and more extensive damages. 21 P. K. Mukherjee: Criminalisation and unfair treatment: the seafarer’s perspective, Journal of International Maritime Law12 (2006) 325-336. 22 E.g. similarly to the case of Hebei Spirit or Tasman Spirit. 23 Mukherjee: i. m. 330.

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After his arrest, Mangouras filed several appeals for the reduction of his bail, but his appeals were denied. Finally, he lodged an amparo24 appeal with the Constitutional Court under Article 17 of the Constitution of Spain.25 However, Mangouras did not appeal against his pre-trial detention but he complained of the amount set for bail, arguing that it had been excessive and disproportionate26 in view of his financial circumstances and had made any prospect of provisional release unrealistic.27 The case made its way to the European Court of Human Rights in 2009 and a first decision was adopted by the third section of the ECtHR. The Spanish Government argued that the primary purpose of bail is to ensure that the applicant remained at the disposal of the judicial authorities during the trial and that any reduction in the amount of the bail would have failed to achieve this purpose.28 On the other hand, Mangouras claimed that it was inconsistent with Article 5(3) of the European Convention on Human Rights, stipulating that everyone arrested or detained shall be entitled to trial within a reasonable time or to release pending trial. The third section of the ECtHR acknowledged that the bail of EUR 3,000,000 was excessively high, but it held that the relevant provisions of the Convention were not violated by the Spanish authorities, considering that the amount of the bail was paid by the insurer of the tanker’s owner (London Steamship Owners’ Mutual Insurance Association Limited) and Mangouras was allowed to return to Greece. However, it seems that the third section of the ECtHR relied mostly on the arguments presented by the Spanish authorities, and without taking into account the relevant case law of the International Tribunal for the Law of the Sea (ITLOS), considering that the case law of the ECtHR did not include any similar case and that the facts of the cases referred to by the parties (i.e. Neumeister v. Austria and Iwańczuk v. Poland) were not quite similar to the facts of Mangouras’ case. On the other hand, ITLOS29 reads Article 73 in conjunction with Article 292 of the UN Convention on the Law of the Sea when deciding matters relating to arrested vessels. According to Article 73, arrested vessels and their crews are to be promptly released upon

24 The writ of amparo is a procedure for the protection of constitutional rights, such as individual freedom and liberty, in certain Neo-Latin countries. See P. P. Camargo: The Right to ‘Judicial’ Protection: Amparo and Other Latin American Remedies for the Protection of Human Rights, Lawyer of the Americas 3 (1971) 191-201. 25 According to Art. 17, ‘[e]veryone has the right to liberty and security. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law.’ 26 According to Art. 45(3) of the Constitution of Spain: For those who violate the provisions of the foregoing paragraph, penal or administrative sanctions, as applicable, shall be established and they shall be obliged to repair the damage caused. 27 ECtHR, Mangouras v. Spain, judgement, 8 January 2009, point 16. 28 ECtHR, Mangouras v. Spain, 2009, point 25. 29 For more details, see Alan Boyle: The Environmental Jurisprudence of the International Tribunal for the Law of the Sea. The International Journal of Marine and Coastal Law 22 (2007) 3.

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the posting of reasonable bond or other security. Furthermore, according to Article 292, where the authorities of a state have detained a vessel flying the flag of another state and it is alleged that the detaining state has not complied with the provisions of the Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to the International Tribunal for the Law of the Sea. The case law of ITLOS indicates that most of the cases – such as the cases of M/V Saiga, Camouco,30 Monte Confuro,31 and Grand Price32 – are connected to the issue of prompt release. However, those cases usually required ITLOS to decide on the matter of arrested shipping vessels and their crews, but none of the cases involved a captain arrested because of an oil spill. Ultimately, the case was referred to the Grand Chamber, which held that national authorities need to proceed with due care when setting the amount of bail, with a view to deciding whether the continued detention of the defendant is indispensable or not.33 In the present case, according to the national court and the Grand Chamber, it was essential to ensure that Mangouras, the captain of the Prestige, appeared for trial before the courts hearing the case, in view of his professional environment.34 Thus, the Grand Chamber held that the detention of the ship’s captain was lawful and that the Spanish authorities did not violate Mangouras’ right to liberty.35 Another interesting aspect of the case is that seven of the seventeen judges of the Grand Chamber did not agree with the ruling; they argued that the captain of the Prestige was detained for a period of 83 days because the fixed amount of the bail clearly exceeded the financial means of Mangouras, and the investigating judge did not even take into account the financial means of Mangouras appropriately. In the end, the judgement of the Grand Chamber relies on the arguments of the Spanish authorities extensively, and it focuses on the environmental catastrophe that occurred in Spain, on the economic consequences, as well as the public outcry and panic that ensued, while the personal circumstances and situation of the captain was mostly ignored. A comparison of the Exxon Valdez36 and Prestige cases shows that the behaviour of the two captains was perceived rather differently. In Exxon Valdez, captain Joseph Hazelwood 30 31 32 33 34 35

ITLOS, Camouco, Panama v. France, No. 5, 7 February 2000. ITLOS, Monte Corfuro, Seychelles v. France, No. 6, 18 December 2000. ITLOS, Grand Brince, Belize v. France, No. 8, 20 April 2001. ECtHR, Mangouras v. Spain, 2010, points 82-83. ECtHR, Mangouras v. Spain, 2010, point 85. The captain, chief operator, and the director of the Spanish trade fleet was acquitted in 2013. http://hu.euronews.com/2013/11/13/felmentettek-a-prestige-vadlottjait/ (15 November 2013). 36 The Exxon Valdez sank in the vicinity of Alaska in 1989 and about 250,000 ton crude oil was discharged into the sea during the accident. It is regarded even today as one of the major oil catastrophes and it served as a catalyst for the further development of the international regulatory framework of accidents. As a result, the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPPRC) was adopted by IMO in 1990, introducing the obligation to prepare an emergency plan and report.

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was under the influence of alcohol at the time of the accident. While the crewmembers maintained that the captain had not consumed any alcohol, a blood test performed 10 hours after the accident showed a blood alcohol level that exceeded the permitted 0.01 per mille threshold by 50 percent.37 The court of appeal convicted Hazelwood for ‘negligent discharge of oil’ while his bail was set at USD 1,000,000.38 In the end, Hazelwood had to pay a total sum of USD 50,000 and had to do 1,000 hours of community service, while he was allowed to keep his captain’s license. Nevertheless, the case of Hazelwood may also serve as an example of the one-sided nature of such proceedings, considering that the radars of the coast guard failed to detect, and the coast guard failed to control, the route actually taken by the ship instead of the route communicated previously. However, these factors were not taken into account and all attention was focused on the liability of Hazelwood, and no proceeding was launched against members of the coast guard.39 On the other hand, Apostolos Mangouras, the captain of the Prestige, was arrested after the accident by the Barcelona police and his release was subject to the posting of EUR 3,000,000 as bail – an unprecedentedly high amount in similar cases. Similarly to Hazelwood, the court denied any reduction of the bail, despite the numerous petitions and pleadings lodged for Mangouras.40 At the time of the accident, Mangouras was 67 years old and had been serving on the sea for over 40 years. He requested assistance for the Prestige from Spain, Portugal, and France in vain, as none of these countries allowed safe harbour for the damaged vessel that was caught up in a storm. Despite the fact that the captain of the vessel acted in the manner that could be expected under the given circumstances and did all possible measures to ensure the safety of the ship, her crew, and cargo, he still spent over two years in prison during the criminal proceedings. The proceedings were launched against Mangouras – as well as the chief engineer of the vessel and the former head of the Spanish maritime trade agency – for criminal damages to the environment in 2002 and the charges was dropped finally in November 2013. The captain of the ship was found guilty by the court of appeal in failing to comply with the instructions of the authorities, and he was sentenced to 9 months in prison.41 Nota bene the sentence was not carried out with regard to the age and clean criminal record of the captain. The court stated that ‘nobody knew what caused the problem or what the adequate response to the emergency situation would have been, and the structural weakness of the

37 Rafgard: Tankers. Big Oil and Pollution Liability, 197. 38 Supreme Court of the State of Alaska, State of Alaska v. Joseph Hazelwood, 12 March 1993, 866 P d2 827. 39 Michael G. Chalos: Should I Go Down with the Ship, or Should I Rot in Jail – A Modern Master’s Dilemma, Maritime Studies 132 (2003) 1-11. 40 Rafgard: 314. 41 www.maritime-executive.com/article/INTERTANKO-Mixed-Reactions-to-Spains-Capt-MangourasJudgements-2013-11-15/ (18 November 2013).

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Aniko Raisz and Eszter Lilla Seres ship was also undeniable.’42 The defendants were not found guilty in causing criminal damages to the environment because they had no intention to bring down the ship and did not even know of its structural deficiencies. The court also established that the Spanish authorities acted correctly when they instructed the ship to move away from the coast toward open sea. The proceedings took 11 years and involved the hearing of 130 witnesses and some 100 experts, and seeking the advice of about 70 lawyers.43 In the meantime, Spain also took action against the American Bureau of Shipping (ABS),44 a non-profit organisation that reviewed the state and structural integrity of the Prestige every five years. The vessel was inspected by the ABS for the last time in 2001 and it was certified as fit for oil transport operations for another period of 5 years. Spain argued that the ABS was liable to pay for damages as, being part of the maritime safety chain by issuing the certificate, it was liable for the catastrophe.45 The claims lodged by Spain were denied by the court due to lack of evidence. While the number of tanker related accidents has been decreasing since the accident of the Prestige,46 but similar accidents must be taken into account even these days, despite the positive results.

6.4

Closing Thoughts

International environmental protection is one of the most recent fields of international law, while the law of human rights is already settled for the most part and despite some developments. These two fields meet at numerous points, one of the possibly most complex meeting points being the situations described in this paper, where considerations pertaining to environmental protection, criminal law, and human rights converge and compete with each other in a single case. The story of the Prestige and her captain, Mangouras, shows that cases are seldom black or white; the only thing that seems certain is that no single person can or should be blamed for the catastrophe as a whole. The issue of responsibility and liability arises on 42 Aud. Provincial Seccion N.1. A Coruna, procedimiento abreviado 0000038/2011, Sentencia, 15 November 2013. 43 Charles R. Cushing expert witness testified that the crew had nothing to do with the condition of the vessel since it was the structural maintenance of the vessel that was not adequately carried out. It also seemed possible that attempts were made to manipulate the measurements to have the tanker declared fit for shipping. 44 United States Court of Appeals for the Second Circuit, Renio de Espana v. the American Bureau of Shipping, 29 August 2012. 45 Renio de Espana v. ABS, 3. 46 www.black-tides.com/uk/source/oil-tanker-accidents/number-accidents-spills.php (8 November 2013). Most recent data (from 2004) show that a total of 4 accidents occurred during the 4 years period before the accident, while only 7 accidents has occurred ever since. In comparison, a total of 25 tanker accidents took place in the 1970s. After 2004, the next wave of accidents took place in 2007 when a total of 31,000 tons of oil was discharged into the sea by three tankers (COSCO Busan, Volgoneft, Hebei Spirit).

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the level of individuals (and even collective bodies) on various fields, including registration and operation related rules and regulations, operational practices, and the handling of accidents. With regard to the final phase of the catastrophe, it still remains unclear if the instructions given by the coast guard constituted the only good, or at least best, option; in effect, these instructions were testing the limits of international regulations by opting for sparing the coastal waters and, at the same time, risking that the damages and pollution would be horrendous and uncontainable in more distant sectors. While captain Mangouras did not comply with the instructions of the coast guard, the issue of his liability raises the following question: is it not the captain of the vessel who is best placed to judge the extent and course of the impending catastrophe, i.e. is it not the captain who is best placed to estimate the impending damages? If we answer these questions in the affirmative, the refusal to follow instructions, as mentioned in the conventions, should be evaluated using the same conceptual framework that is already in place in international criminal law regarding war crimes and crimes against humanity, i.e. that the refusal to follow orders in order to serve a greater good is not only permissible but even an imperative duty. The Prestige case did not present an opportunity to find answers to all these questions, since the captain lodged an application with the ECtHR concerning only a small segment of the criminal proceedings against him, i.e. regarding the matter of bail. In Prestige, it is clear that the rights of a defendant collided with the protection of the environment afforded by criminal law, and the conclusion of the case was detrimental to the rights of the defendant, which are otherwise rather leniently treated by the ECtHR, due to environmental considerations. It does not make much difference that, eventually, the proceedings in Spain were also brought to an end over a decade later. It is certainly a favourable development that environmental considerations gained legitimacy in human rights related proceedings, but we should also expect the strengthening of voices expressing concerns regarding the promotion of environmental considerations to the detriment of other interests. Nevertheless, it seems certain that closer cooperation between the various actors and stakeholders is needed to prevent the occurrence of oil spills on sea.

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The UN Watercourses Convention, with Special Regard to the Environmental Provisions

Ágnes Bujdos* This essay aims to trace the significance of the United Nations Watercourses Convention on the non-navigational uses of international watercourses (the Convention), which was adopted in New York in 1997 and entered into force in 2014, in particular with regards to its environmental provisions. After a short introduction dealing with water as a natural resource, the essay will focus on the Convention itself. First, the Convention will be examined in general, and then the environmental provisions will be analyzed in detail. Finally, some conclusions will be drawn.

7.1

Freshwater as a Natural Resource

Freshwater is a precondition for life for which there is no alternative.1 Besides humans, plants and animals also depend on water as well as the whole ecosystem.2 Although the Earth is called the ‘Water Planet’ as more than 70 per cent of its surface is covered with water, which practically means that water is by far the most common liquid on the Earth’s surface,3 97 per cent of this water can be found in the ocean, so the vast majority of water on Earth is unfit for human consumption or other uses due to its high salt content. In addition, as two thirds of the remaining freshwaters are locked up in glaciers and permanent snow cover, with no more than 0.7 per cent being available as freshwater (0.66 per cent of which is groundwater and just 0.03 per cent is available as freshwater in rivers, lakes and streams).4 These waters constitute 276 international river basins in the world shared by

* 1 2 3

4

Ágnes Bujdos: PhD candidate at the University of Debrecen Géza Marton Doctoral School of Legal Studies. A. K. De & A. K. De, Environmental Engineering, New Age International Ltd, New Delhi, 2009, pp. 66-67; L. Boisson de Chazournes, Fresh Water in International Law, Oxford University Press, Oxford, 2013, p. 12. J. Verschuuren, Recht op water, in T. G. Drupsteen, H. J. M. Havekes & H. F. M. W. Van Rijswick (Eds.) Weids water. Opstellen over waterrecht, Sdu Uitgevers, Den Haag, 2006, p. 427. J. Boberg, Liquid assets: How Demographic Changes and Water Management Policies Affect Freshwater Resources, RAND Corporation, Santa Monica, CA, 2005, pp. 15-17; P. L. Brezonik & W. A. Arnold, Water Chemistry: An Introduction to the Chemistry of Natural and Engineered Aquatic Systems, Oxford University Press, Oxford, 2011, p. 10. De & De, 2009, p. 66-67.

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145 countries, which cover approximately half of the Earth’s land surface and 40 per cent of the world’s population.5 Besides the limited availability, water is unevenly distributed across the globe and is often overexploited6 due to the rapidly growing demand7 as a result of population growth, urbanisation and economic development.8 Furthermore, it is worth noting that although freshwater is a renewable resource, its renewable capacity is not unlimited.9 Moreover, water quantity and quality are linked, as even if sufficient amounts of water exist, it may be unusable or suitable only for limited kinds of purposes due to the poor quality,10 not to mention that the more contaminated the water is the more challenging it is to obtain a suitable water quality.11

7.2

United Nations Convention on the Law of the Non-Navigational Uses of the International Watercourses

7.2.1

The Preceding and Subsequent Universal Documents Relating to the Convention

As referred to in the Preamble of the Convention, international organisations played an important role in the ‘codification’ and ‘progressive development’ of this field, of which two scholarly organisations have to be highlighted. On the one hand, there is the Institute of International Law (IIL), which is an ‘exclusively learned society, without any official nature’ founded in 1873 at the Ghent Town Hall in Belgium and aims to contribute to the development of international law.12 While, on the other hand, the International Law Association (ILA), which is non-governmental organisation founded in Brussels, has as its goal ‘the study, clarification and development of international law.’13 Starting with IIL, its first relevant document was the Madrid Declaration issued in 1911 under the title 5

6 7 8 9 10 11 12 13

A. Rieu-Clarke & F. Rocha Loures, Introduction, in F. Rocha Loures & A. Rieu-Clarke (Eds.), The UN Watercourses in Force: Strengthening international law for transboundary water management, Routledge, New York, 2013, p. 5. G. Kardos, ‘A vízhez való jog’, Acta Humana, Vol. 15, No. 1, 2004, p. 95; Rieu-Clarke & Rocha Loures, 2013, p. 3. J.C. Padowski & J.W. Jawitz, ‘The Future of Global Water Scarcity: Policy and Management Challenges and Opportunities’, Whitehead Journal of Diplomacy and International Relations, Vol. 10. No. 2, 2009, p. 100. www.eea.europa.eu/articles/water-in-the-city. A.Y. Hoekstra, ‘The relation between international trade and freshwater scarcity’, WTO Working Paper, January 2010, p. 4. E. Brown Weiss, ‘The Coming Water Crisis: A Common Concern of Humankind’, Transnational Environmental Law, Vol. 1. No. 1, 2012, p. 153. M. Palaniappan et al., Water Quality in P. H. Gleick (Ed.) The World’s Water Volume 7 The Biennial Report of Freshwater Resources, Island Press, Washington, Covelo, London, 2012, p. 60. www.idi-iil.org/idiE/navig_statutes.html. www.ila-hq.org/en/about_us/index.cfm.

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‘International Regulations Regarding the Use of International Watercourses for Purposes Other than Navigation.’ In 1961, it was followed by the IIL Resolution on the Utilization of Non-Maritime International Waters (Except for Navigation), also known as the Salzburg Declaration as well as the resolution on The Pollution of Rivers and Lakes and International Law (Athens Resolution) in 1979. Moving on to the ILA, first and foremost, the Helsinki Rules on the Uses of the Waters of the International Rivers (1966) has to be mentioned, which constitutes a landmark in the evolution of international water law, especially the principle of equitable and reasonable utilization (which later also became the cornerstone of the Convention). Moreover, Montreal Rules on Pollution (1982) and Supplemental Rules on Pollution (1996) as well as the Berlin Rules on Water Resources Law (Berlin Rules) have to be referred to. Berlin Rules were adopted in 2004 and these are the most recent and most comprehensive addition to ILA’s activity on water resources. These rules were adopted after the Convention and incorporate all the experiences since the adoption of Helsinki Rules as well as the developments in the international environmental law.14 In addition, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki Convention), which was adopted in Helsinki in 1992 and entered into force in 1996, is also worth mentioning. At the time of its adoption, it was only open to member states of the United Nations Economic Commission for Europe as well as those regional economic integration organizations formed by these states. However, in 2003 the Meeting of the Parties adopted a decision, which allowed all United Nations Member States to accede to the Convention.15 Furthermore, in 2012, another decision was adopted, which made possible the accession by non-United Nations Economic Commission for Europe countries.16 Consequently, the Water Convention has become a universal instrument and to date there are 40 parties.17 Last but not least, the International Law Commission (ILC)’s work cannot be overstressed, as the Preamble explicitly mentions its contribution to the Convention. The aim of the ILC is the promotion of the progressive development of international law and its codification. It consists of thirty-four members who are persons of recognized competence in international law. The members of the Commission serve in their individual capacities

14 International Law Association, Berlin Conference (2004), Water Resources Law. p. 4. 15 On 28 November 2003, the Meeting of the Parties to the Convention adopted Dec. III/1, amending Arts. 25 and 26 of the Convention to allow all United Nations Member States to accede to the Convention. These amendments entered into force on 6 February 2013. 16 On 30 November 2012, the Meeting of the Parties adopted Dec. VI/3 on accession by non-United Nations Economic Commission for Europe countries. 17 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&lang=en.

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and are elected by the General Assembly (GA) from a list of candidates nominated by the Governments of States Members of the United Nations.18

7.2.2

Overview and Scope of the Convention

The Convention is divided into seven parts and contains 37 articles. It encompasses both substantive and procedural provisions, and the most significant of them can be identified in Part II on General Principles, Part III on Planned Measures, Part IV on Protection, Preservation and Management and Part V on Harmful Conditions and emergency situations. It is worth pointing out that the Convention, as ascertained in the Preamble, is a socalled ‘framework convention’. Consequently, it attempts no more than to address some basic procedural and substantive rules, and leaves the details to the riparian states in order to form an agreement fitting the specific characteristics of the watercourse in question.19 Interestingly, framework convention as a regulatory technique can be deemed to be a relatively recent phenomenon in international law and mainly observed in the field of international environmental law.20 However, framework conventions are also legally binding sources of international law, which do not differ from other conventions in their legal nature, so qualification as a framework convention does not bear any consequence under the law of the treaties.21 In determining the scope of the Convention, two key elements of the title will be examined. Firstly, based on the Draft articles on the law of the non-navigational uses of international watercourses and commentaries22 (Commentary) of the ILC, the term ‘nonnavigational uses’ has to be interpreted in its broad sense, as it covers ‘all but navigational uses of international watercourses.’ Secondly, Article 2 (a) defines ‘international watercourse’ as ‘a watercourse, parts of which are situated in different states.’ In addition, in Article 2 (b) ‘watercourse’ is determined ‘as a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.’ The determination of the ‘international watercourse’ is interesting

18 Statute of the International Law Commission, adopted by the GA Res. 174 (II) 21 November 1947, as amended by Res. 485 (V) 12 December 1950, 984 (X) 3 December 1955, 985 (X) 3 December 1955 and 36/39 18 November 1981. Art. 1, Art. 3. 19 S.M.A. Salman, ‘The United Nations Watercourses Convention Ten Years Later: Why Has its Entry into Force Proven Difficult?’, Water International, Vol. 32. No 1, 2007, p. 4. 20 N. Matz-Lück, ‘Framework Conventions as a Regulatory Tool’, Göttingen Journal of International Law, Vol. 1. No. 3, 2009, p. 440. 21 Matz-Lück, 2009, p. 451. 22 Draft articles on the law of the non-navigational uses of international watercourses and commentaries thereto and resolution on transboundary confined groundwater, adopted by the International Law Commission at its forty-sixth session in 1994.

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from two perspectives. Firstly, contrary to the general presumption, it is not synonymous with ‘international river’. As based on the definition of ‘watercourse’ in the Convention, it covers a broader category than river by encompassing both surface water and groundwater. Integrating groundwaters into this definition may be based on the recognition that the vast majority of freshwater on Earth is groundwater and that most of them are related to or interact with surface water. This interrelationship between surface water and groundwater is crucial from both a water quantity and quality point of view. Just as water withdrawals mutually affect both surface and groundwater, the pollution in either of them also contaminates the other one.23 Secondly, in harmony with the definition of ‘watercourse’ and the Commentary, scholars agree that confined groundwaters, which are not related to any surface water, are excluded under the scope of this Convention.24 Instead, the ILC adopted the Draft articles on the Law of Transboundary Aquifers.25

7.2.3

The Adoption of the Convention

The United Nations Convention on the Law of the Non-Navigational Use of the International Watercourses was adopted by the GA on 21 May 1997 and entered into force on 17 August 2014.26 The ILC started its work after the GA adopted its Resolution on ‘Progressive development and codification of the rules of international law relating to international watercourses’ in 1970, in which the ILC was asked ‘to take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification.’27 The Convention was negotiated in the Sixth (Legal) Committee of the GA, based on the draft articles of the ILC and the negotiations were open to all member states of the UN. It can be said about the ILC’s work that it was highly influenced by the different approaches of its five special rapporteurs and was not ‘linear’. On the one hand, it developed based on the annual interaction between the ILC and the GA.28 On the other hand, at various stages of the ILC’s work, states also had the opportunity to reflect

23 S.C. McCaffrey, The UN Convention on the Law of the Non-Navigational Uses of International Watercourses: Prospects and Pitfalls, in S.M.A. Salman & L. Boisson de Chazournes (Eds.), International Watercourses, Enhancing Cooperation and Managing Conflict, World Bank Technical Paper No. 414, 1997, p. 18. 24 S.C. McCaffrey, ‘The contribution of the UN Convention on the law of the non-navigational uses of international watercourses’, International Journal of Global Environmental Issues, Vol. 1. No. 3-4, 2001, pp. 251252; Salman, 2007, p. 5. 25 Draft articles on the Law of Transboundary Aquifers, adopted by the International Law Commission at its sixtieth session, in 2008. 26 https://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XXVII12&chapter=27&lang=en#Participants. 27 GA Res. 2669 (XXV), 8 December 1970. 28 S.C. McCaffrey, ‘The 1997 U.N. Watercourses Convention: Retrospects and Prospects’, Global Business & Development Law Journal, Vol. 21, 2008, p. 165.

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Ágnes Bujdos on the drafts and share their viewpoint.29 Finally, on 21 May 1997, the Convention was adopted by an overwhelming majority of the states, as 103 states voted in favour, 26 abstained, and only three states (Burundi, China and Turkey) voted against it.30 Contrary to this remarkable support, the number of ratifications slowly increased, although the Convention needed 35 instruments of ratification or accession to its entry into force,31 which is slightly less than one third of the number of the states which voted in favour of the final draft. Several reasons have been identified behind the slow ratification process. On the one hand, the controversies relating to the adopted Convention were blamed, especially the relationship between two key principles, namely the principles of equitable and reasonable utilisation and the prevention of significant harm. However, some other provisions, such as the dispute settlement mechanism, and the relationship between the Convention and other existing agreements may have also contributed to the reluctance of the states.32 Besides, on the other hand, other reasons may have been related to the ratification process of the multilateral agreements. In these processes most of the time one or more ‘key individual governments’ as well as UN bodies or regional organisations play a key role in order to push them forward. However, in this case, the adoption of the Convention was shortly succeeded by the adoption of the Kyoto Protocol, of which the ratification process proved to be more challenging. Furthermore, climate change was evaluated to be more significant. Consequently, the attention of the international community started focusing on the Kyoto Protocol shortly after the adoption of the Convention.33

7.2.4

Current Status of the Convention

To date there are 36 contracting states to the Convention.34 Despite the long ratification process and the low number of the parties, the significance of the Convention is indisputable. This ascertainment can be supported, first and foremost, by the judgement of the

29 A. Rieu-Clarke & K. Hayward, ‘Entry into force of the 1997 UN Watercourses Convention: barriers, benefits and prospects’, Water 21, Vol. 9, No. 6, 2007, p. 12. 30 GA Fifty-first Session 99th plenary meeting Wednesday, 21 May 1997, 10 a.m., New York. 31 Convention on the Law of the Non-navigational Uses of International Watercourses, adopted by the General Assembly of the United Nations on 21 May 1997, Art. 36. 32 Rieu-Clarke & K. Hayward, 2007, p. 13; Salman, 2007, pp. 8-11. 33 J.W. Dellapenna & A. Rieu-Clarke & F. Rocha Loures, Possible reasons slowing down the ratification process, in F. Rocha Loures and A. Rieu-Clarke (Eds.), The UN Watercourses in Force: Strengthening international law for transboundary water management, Routledge, New York, 2013, p. 14. 34 Such as, Benin, Burkina Faso, Chad, Côte d’Ivoire, Denmark, Finland, France, Germany, Greece, GuineaBissau, Hungary, Iraq, Ireland, Italy, Jordan, Lebanon, Libya, Luxembourg, Montenegro, Morocco, Namibia, Netherlands, Niger, Nigeria, Norway, Portugal, Qatar, South Africa, Spain, State of Palestine, Sweden, Syrian Arab Republic, Tunisia, United Kingdom of Great Britain and Northern Ireland, Uzbekistan, Vietnam. https://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XXVII12&chapter=27&lang=en#EndDec.

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International Court of Justice (ICJ) in the case Gabčikovo-Nagymaros,35 in which ICJ referred to the Convention several times shortly after its adoption.36 Moreover, it seems to be influential in regional, basin specific and bilateral agreements, especially in Africa, such as Revised Protocol on Shared Watercourses in the Southern African Development Community in 2000.37 However, Biswas warns that the impact of the Convention on the resolution of conflicts may be limited, as several states belonging to the same international watercourses and having ongoing disputes did not support the adoption of the Convention.38 This observation begs the question to what extent the Convention reflects customary international law. As mentioned above, when the ILC was asked in 1970 to study the nonnavigational use of international watercourses, the GA referred in its Resolution to both ‘progressive development and codification’ international law.39 However, as McCaffrey correctly observed, the ILC does not indicate in the Commentary whether certain provisions were the codification or the progressive development of international law. Nonetheless, in his opinion, at least three principles constitute part of the customary international law, such as equitable and reasonable utilization, not to cause significant harm and notification.40 In addition, Salman extended this list with the exchange of data and information, and the provisions relating to the protection of the environment.41 Differentiating between customary international law and the other provisions of the Convention is crucial, as customary international law norms bind all states regardless of joining the Convention, while other rules binds only the party to the Convention.42 Bruhács argues that the whole Convention reflects the customary law on governing the non-navigational uses of international watercourses, as it transforms customary rules into treaty provisions as a codification treaty. Furthermore, it was referred to by the ICJ in the Gabčikovo-Nagymaros case before its entry into force.43 However, several reasons may be recalled which contradict this approach. First, the controversies, which have surrounded certain provisions, first and foremost, the relationship between the principle of equitable and reasonable utilization and the principle not to cause significant harm, as upper riparians tend to favour the former

35 Case Concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, Judgment, 1997 ICJ Rep., p. 7. 36 McCaffrey, 2001, p. 259. 37 Rieu-Clarke & K. Hayward, 2007, p. 14. 38 J.C. Kahn, ‘1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses’, Colorado Journal of International Environmental Law and Policy, 1997 Yearbook, p. 183. 39 McCaffrey, 2001, p. 259. 40 McCaffrey, 1997, p. 27. 41 Salman, 2007, p. 13. 42 Statute of the International Court of Justice, Art. 38. 43 J. Bruhács, ‘A nemzetközi folyók jogáról szóló 1997.évi New York-i egyezmény’, Jura, Vol. 6. No. 1-2, 2000, p. 46.

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Ágnes Bujdos one, while lower riparians the latter one.44 Secondly, despite its entry into force, the slow ratification process as well as the low intention to join may indicate that the Convention does not unconditionally mirror the standpoint of the states. This concern was also manifested in Rieu-Clarke’s ascertainment, as he argued that among others the benefit of the Convention’s entry into force would be, on the one hand, the strong manifestation of the states towards ‘water crisis’; on the other hand, the accession to the Convention by a large number of states could contribute to the clarification and the strengthening of customary international law in this field.45

7.3

The Environmental Provisions of the Convention

This part shall concentrate on the environmental provisions of the Convention. As has been shown, while introducing water as a natural resource; freshwater is a precious natural resource with no alternative. However, there is a growing concern due to water quantity and quality, so it is worth taking a look at the Convention’s provisions in order to find out how it aims to contribute to the protection of the environment.

7.3.1

The Environmental Provisions in General

In evaluating the environmental provisions of the Convention, its framework convention character has to be referred to. Consequently, it cannot be expected that there will be the same degree of protection as in the case of regional or bilateral agreements in the developed states. Although numerous proposals were made during the negotiations in order to strengthen the environmental standpoint, very few were ultimately accepted.46 This was regrettable; however, an environmentally stronger text would ultimately have received less support for the Convention.47 The environmental references can be discovered, one the one hand, in the Preamble of the Convention, such as reference to the protection and sustainable utilization of international watercourses as well as to the principles and recommendations of the Rio Declaration and Agenda 21 adopted by the United Nations Confer-

44 A. Schwabach, ‘The United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, Customary International Law, and the Interests of Developing Upper Riparians’, Texas International Law Journal, Vol. 33. No. 2, 1998, pp. 276-278; C.B. Bourne,’ The Primacy of the Principle of Equitable Utilization in the 1997 Watercourses Convention’, Canadian Yearbook of International Law, Vol. 35, 1997, pp. 215-232; M.S. Helal, ‘Convention on the Law of the Non-Navigational Uses of International Watercourses Ten Years On’, Colorado Journal of International Environmental Law and Policy, Vol. 18. No. 2, 2007, pp. 337-378. 45 Rieu-Clarke & Hayward, 2007, p. 14. 46 UN Doc. A/C.6/51/SR.15. 47 McCaffrey, 2001, p. 257.

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ence on Environment and Development in 1992. However, there is also reference to the ‘special situation’ of developing countries, which, as mentioned above, must have had an influence on the level of the environmental protection. On the other hand, environmental provisions can be also found in Part IV on Protection, Preservation and Management, namely Article 20 on Protection and preservation of ecosystems, Article 21 on Protection, reduction and control of pollution, Article 22 on Introduction of alien or new species and finally, Article 23 on Protection and preservation of the marine environment. In the following section, these provisions will be shortly discussed, especially in comparison with the relevant articles of the Berlin Rules. Although non-binding, these rules constitute the most recent and comprehensive universal regulations on water resources. Moreover, ILA has been active on freshwater issues for decades and their work can be seen in several rules.48 Furthermore, the provisions of the Helsinki Convention will also be mentioned if and when they are accurate. However, it has to be taken into account that at the time of the adoption it was a regional instrument (connected to developed states) and was adopted years before the Convention.

7.3.2

Protection and Preservation of Ecosystems

Article 20 on Protection and preservation of ecosystems states that ‘Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses.’ Following Article 192 of the United Nations Convention on the Law of the Sea (UNCLOS),49 Article 20 imposes the obligation to protect and preserve the environment. As mentioned in the Commentary, the ILC was of the opinion that this article, which lays down a general obligation, should precede the more specific articles of this part of the Convention. The Commentary also defines some terms of this article. Firstly, ‘ecosystems’ are determined as ‘an ecological unit consisting of living and nonliving components that are interdependent and function as a community’ of which an important feature is that ‘everything depends on everything else and nothing is really wasted.’ Secondly, it explains that the obligation to ‘protect’ requires the watercourse States to ‘shield the ecosystems of international watercourses from harm and damage’, while the obligation to ‘preserve’ is applicable especially to those freshwater ecosystems that are in a ‘pristine or unspoiled condition.’ It aims to protect those ecosystems in such a way to maintain their natural state. This article of the Convention is evaluated by McCaffrey as ‘a simple but potentially quite powerful provision.’ Similarly to Article 192 of the UNCLOS,

48 S. Bogdanović, International law of water resources: contribution of the International Law Association (19542000), Kluwer Law International, London, 2001, 436 p. 49 Art. 192 of UNCLOS on General obligation stipulates that states have the obligation to protect and preserve the marine environment.

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on which it is modelled, this obligation is not qualified, and without any doubt it is not an absolute obligation, but it is an obligation to exercise due diligence to protect and preserve watercourses’ ecosystems.50 Contrary to the Convention, the Helsinki Convention contains only short references to the ecosystem.51 However, Article 22 of the Berlin Rules on Ecological Integrity prescribes for states to ‘protect the ecological integrity necessary to sustain ecosystems dependant on particular waters.’ This obligation is described in the Commentary of the Berlin Rules as a recently recognized, but rapidly generally accepted obligation. Similarly to the Convention, it is not an absolute obligation. Moreover, as indicated in the Commentary, its real content is discharged through the fulfilment of other obligations.

7.3.3

Prevention, Reduction and Control of Pollution

Before embarking on the definition of ‘water pollution’ in the Convention, it is worth mentioning Lammers’ observations on defining water pollution. He concluded that many sources had not even attempted to define water pollution, which might be traced back to two reasons. On the one hand, people generally have a ‘fairly accurate idea’ about water pollution; on the other hand, there are difficulties with defining it precisely, as different approaches may result in a significantly different definition ‘not only in details but sometimes in also fundamental respects.’52 Indeed, it proves to be challenging to define what clean water is for several reasons, such as that nature itself does not provide ‘pure’ water and it is the human’s concern to decide whether or not the water is clean enough to satisfy their needs, not to mention that water serves multiple purposes claiming different water quality, so the term ‘clean water’ may imply different water quality depending on the uses in question.53 Similarly to Article 194 of UNLOS,54 Article 21 of the Convention establishes the fundamental obligations to ‘prevent, reduce and control the pollution of international watercourses.’ These provisions encompass three paragraphs. The first stipulates the ‘pollution of an international watercourse’ as ‘any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct.’ As indicated in the Commentary, this definition is far too general. On the one hand, it does not name any particular type of pollution or polluting agent, such

50 McCaffrey, 1997, p. 24. 51 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted in Helsinki on 17 March 1992, Art. 2-3. 52 J.G. Lammers, Pollution of International Watercourses: search for substantive rules and principles of law, Martinus Nijhoff, The Hague, 1984, p. 7. 53 C.B. Bourne, ‘International Law and Pollution of International Rivers and Lakes’, University of Toronto Law Journal, Vol. 21, 1971, p. 194. 54 Art. 194 of UNCLOS on Measures to prevent, reduce and control pollution of the marine environment.

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as introduction of substances or energy. On the other hand, the term ‘any detrimental alteration’ does not specify a threshold, which would help differentiate between legal and illegal pollution. Consequently, paragraph 1 declares the general prohibition of water pollution per se, as it encompasses all kinds of negative alterations regardless of their effects, not to mention that it leaves open the question of what ‘detrimental effect’ means. Turning to paragraph 2, it obliges watercourse States to ‘prevent, reduce and control the pollution of an international watercourse.’ As explained in the Commentary, these obligations, just like in the case of marine pollution, refer to the varying water quality of the international watercourses. While the obligation to ‘prevent’ refers to the new pollution of international watercourses, the other obligations, such as the obligation to ‘reduce and control’ refers to the existing pollution. However, this obligation is not unconditional, as it is applicable only to that pollution which ‘may cause significant harm to other watercourse States or to their environment.’ In addition, this paragraph provides a non-exhaustive list of ‘significant harm’, namely ‘harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse.’ Finally, in paragraph 2, states are required to ‘take steps to harmonize their policies in this connection.’ Not surprisingly, the Commentary identifies this paragraph as a ‘specific application’ of the two general principles, namely the equitable and reasonable utilization and the obligation not to cause significant harm, which definitely implies that all the controversies and uncertainties surrounding these principles also affect the interpretation of this paragraph. Moving onto paragraph 3, it establishes the obligation to ‘consult with a view to arriving at mutually agreeable measures and methods’ in order to, just like in paragraph 2, ‘prevent, reduce and control the pollution of an international watercourse.’ Three groups of ‘measures and methods’ are specified, such as joint water quality objectives, the establishment of techniques and practices against pollution from point and non-point sources and finally, the establishment of lists on substances, of which the introduction into the international watercourse is ‘prohibited, limited, investigated or monitored.’ Furthermore, it is worth noting, that this paragraph does not establish an absolute obligation to consult, as it is applicable ‘at the request of any of the watercourse states.’ On the one hand, this can be interpreted as a right of every single watercourse state to initiate consultation. On the other hand, however, it may mean that in the absence of such kind a request this paragraph is not applicable to a watercourse State. Finally, a closing remark on this paragraph is that there is no reference to the required water quality level, which should be reached by these obligations and ‘measures and methods’, which can result in maintaining the present varying water quality from river basin to river basin. Turning our attention to the relevant provisions of the Berlin Rules, the starting point should be Article 3, which defines ‘pollution’ as ‘any detrimental change in the composition or quality of waters that results directly or indirectly from human conduct.’ As can be seen, similarly to the Convention, the term ‘human conduct’ is used. On the one hand, it serves

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to differentiate between natural and anthropogenic pollution, as only the latter one can be the subject of the legal regulation.55 On the other hand, similarly to the Convention, it is understood to cover both acts and omissions, which is preferred to other terms, such as ‘human activities’. The obligations relating to ‘pollution’ are prescribed in Article 27 on Pollution. First, paragraph 1 obliges states to ‘prevent, eliminate, reduce, or control pollution in order to minimize environmental harm.’ Some remarks can be made to this provision. On the one hand, in comparison with the Convention, an additional obligation, namely the obligation to eliminate can be detected. On the other hand, contrary to the Convention, these obligations are not limited to transboundary issues. Moreover, the aim of Article 27 is to ‘minimize environmental harm’, which covers ‘injury to the environment and any other loss or damage caused by such harm’ and ‘the costs of reasonable measures to restore the environment actually undertaken or to be undertaken’ compared to ‘significant harm’ in the Convention. Secondly, paragraph 2 requires states to conform with Article 28 on Establishing Water Quality Standards, to ‘assure compliance with that standard.’ The Berlin Rules go further than the Convention by specifying the achievable goals by the establishment of the standards, such as the protection of public health and the aquatic environment as well as provision of water for the satisfaction of certain needs, particularly drinking, ecosystem, agriculture and recreation. Finally, paragraph 3 formulates prescriptions relating to ‘wastes, pollutants and hazardous substances’ in order to ‘protect the aquatic environment.’ Besides, the Berlin Rules devote a separate article on hazardous substances, namely Article 26, which obliges states to ‘prevent the introduction of hazardous substances into the waters.’ Interestingly, there is no explicit reference to hazardous substances in the Convention, although, their harmful effect on the waters had been widely recognized at time of the adoption of the Convention, such as in ILA Montreal Rules on Pollution (1982) and Supplemental Rules on Pollution (1996) as well as in the Helsinki Convention. As most of the developed states are able to control most of the discharges from the point source (which is primarily responsible for the introduction of hazardous substances into water) well,56 it may be suspected that the resistance of the developing countries may be behind the exclusion of this problem.57 Furthermore, contrary to the Helsinki Convention and the Berlin Rules, there is no reference to the application of best available techniques (for point sources of pollution) and best environmental practices (for non-point sources of pollution) to tackle water pollution. This is despite the fact that Annex I and II of the Helsinki Convention had dealt with it in detail in 1992. As a closing remark,

55 X. Hanqin, Transboundary Damage in International Law, Cambridge University Press, Cambridge, 2003, p. 6. 56 M.K. Hill, Understanding Environmental Pollution: A Primer, 2nd ed., Cambridge University Press, Cambridge, 2004, p. 201. 57 A. Elhassadi, ‘Pollution of water resources from industrial effluents: a case study – Benghazi, Libya’, Desalination, Vol. 222. No. 1-3, 2008, pp. 286-293.

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it is worth noting that the Helsinki Convention does not determine the definition of water pollution. It applies a broader category, namely transboundary impact. It specifies in connection with water pollution that states are obliged to ‘prevent, control and reduce pollution of waters causing or likely to cause transboundary impact’, without any definition on water pollution.58

7.3.4

Introduction of Alien or New Species

Similarly to Article 196 paragraph 1 of UNCLOS,59 Article 22 on Introduction of alien or new species obliges watercourse States to take all measures necessary to prevent the introduction of species, alien or new, into an international watercourse which may have effects detrimental to the ecosystem of the watercourse resulting in significant harm to other watercourse State. As reasoned in the Commentary, ILC excluded the present article under the scope of Article 21 of the Convention and devoted a separate article for ‘biological’ alterations, as even though the introduction of alien or new species may have harmful effects upon water quality, it is not generally regarded as pollution per se, as its detrimental effects on the environment are not generally regarded as pollution. Nonetheless, it does not affect the significance of this paragraph, as the introduction of alien or new species into a watercourse poses a threat to the native species, as it can upset the ecological balance of the watercourse and trigger serious problems, such as the disruption of the food web and the elimination of other species. Based on the Commentary, the term ‘species’ encompass both flora and fauna, while ‘alien’ refers to non-native species and ‘new’ covers those species that ‘have been genetically altered or produced through biological engineering.’ Interestingly, while no reference to this issue can be found in the Helsinki Convention, the Commentary of the Berlin Rules describes it as ‘nothing is more disruptive of the biological integrity of an ecosystem.’ However, in comparison with the Convention, the scope of Berlin Rules is limited to alien species. Although contrary to the Convention, the Berlin Rules go further in the sense that they do not require a threat of ‘significant harm to other watercourses states.’

58 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted in Helsinki on 17 March 1992, Art. 2. 59 Art. 196 of UNCLOS on Use of technologies or introduction of alien or new species.

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7.3.5

Protection and Preservation of the Marine Environment

Following Article 207 of UNLOS,60 Article 23 on Protection and preservation of the marine environment obliges watercourse States to ‘take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards.’ Similarly to Article 20 of the Convention, the significance of this field has been recognised relatively recently. The inclusion of this article into the environmental provisions of the Convention is based on the recognition that waters on Earth are linked due to the hydrological cycle.61 Therefore, pollutants introduced or reaching rivers by the flowing water will sooner or later reach the sea.62 Consequently, the quality of rivers directly affects the marine environment, which similarly to freshwaters, also has important roles, such as fishing, shipping or recreation.63 Furthermore, it is worth mentioning that land-based marine pollution constitutes more than 70 per cent of all marine pollution.64 However, it is not all via watercourses, as land-based marine pollution arises from two general sources. The first of them, which accounts for 44 per cent of all pollution, can reach the marine environment by introducing substances or energy into waters,65 and it enters into the sea either from rivers (which are often transboundary) or from direct discharges into coastal waters.66 The other source of land-based marine pollution can arise from or through the atmosphere as an effect of land-based activities and it accounts for 33 per cent of marine pollution.67 As reasoned in the Commentary, the Convention does not require the watercourse States to protect the marine environment, but to take the necessary measures which are ‘capable financially and technologically,’ in order to protect the marine environment from pollution via international watercourse. The Helsinki Convention does not address this question in 60 Art. 207 of UNLOS on Pollution from land-based sources. In addition, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA) and the associated 1995 Washington Declaration on Protection of the Marine Environment from Land-based Activities, which has been renewed through the Montreal Declaration on the Protection of the Marine Environment from Landbased Activities (2001), the Beijing Declaration on furthering the implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (2006) and the Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (2012). 61 A.C. Kiss & D. Shelton, International Environmental Law, 3rd ed., Ardsley: Transnational Publishers, New York, 2004, p. 455. 62 Boisson de Chazournes, 2013, p. 5. 63 Protecting coastal and marine environments from land-based activities: A guide for national action UNEP, 2006, p. 2; D. Shelton & A. Kiss, Judicial handbook on Environmental Law, UNEP, Stevenage, 2005, p. 65. 64 Boisson de Chazournes, 2013, p. 116. 65 P. Sands & J. Peel, Principles of International Law, 3rd ed., Cambridge University Press, Cambridge, 2012, pp. 372-373; D. Hassan, Protecting the Marine Environment from Land-based Sources of Pollution: Towards Effective International Cooperation, Ashgate, Aldershot, 2006, pp. 15-16. 66 Boisson de Chazournes, 2013, p. 116. 67 Sands & Peel, 2012, pp. 372-373; Hassan, 2006, pp. 15-16.

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detail, but short references can be found to it.68 Even though the Berlin Rules are not applicable to marine waters,69 so they do not tackle this issue; their environmentally progressive provisions can definitely contribute to the reduction of pollution via watercourses. However, ILA had dealt with this question in 1972,70 two years before the Paris Convention, the first regional agreement on land-based marine pollution, was adopted.71

7.4

Conclusions

The codification of the rules governing the non-navigational uses of the international watercourses is an indisputable achievement of the Convention, even if certain provisions are not without controversies. When it comes to the environmental provisions, some remarks may be made. Firstly, the incorporation of these provisions may be evaluated as (at least emerging) customary international law. Secondly, Article 21 on the Prevention, reduction and control of pollution, which is the only environmental provision directly referring to freshwater protection and from which the most direct obligations to states could be derived, is surrounded by uncertainties and does not reflect the growing concerns of the states on freshwaters. Thirdly, the other environmental provisions correctly aim to contribute not only to the protection of the freshwater, but also to the protection of the wider environment dependant on freshwater, however, the obligations of the states relating to them are vague. Last but not least, although the Convention entered into force in 2014, the low number of ratifications represents the lack of support behind the Convention as a whole, so the benefits of the entry into force are not clear yet.

68 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted in Helsinki on 17 March 1992, Preamble, Arts. 2.6, 9.4. 69 International Law Association, Berlin Conference (2004) Water Resources Law, p. 4. 70 Supplementary Rules applicable to Marine Pollution of Continental Origin, adopted by the ILA on its 55th Conference held in New York in 1972. 71 Convention for the Prevention of Marine Pollution from Land-Based Sources, signed in Paris in 1974.

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ICTY and Provisional Release: The Case of Vojislav Šešelj

Snežana Trifunovska*

8.1

Introduction

In February 2003 the ICTY indicted Vojislav Šešelj for recruiting paramilitary forces during the war in the former Yugoslavia. He was charged with 15 counts for crimes against humanity and war crimes committed against non-Serbs in parts of Croatia, Bosnia and Herzegovina and Vojvodina (province in the Republic of Serbia) in the period from August 1991-September 1993.1 In February 2003, only few days after issuing of the initial indictment against him, Šešelj voluntarily surrendered to the Tribunal where he was kept until November 2014. On 6 November 2014 the Trial Chamber III ordered his provisional release on humanitarian grounds i.e. his grave illness caused by colon and liver cancer and on 12 November he was released from the ICTY Detention Unit and returned to Serbia. The Šešelj case is in several respects unique in the practice of ICTY. Throughout the whole procedure Šešelj showed great disrespect for the Tribunal and has not accepted its legitimacy. His goal of voluntarily surrendering to the Tribunal was to ‘win the battle’ against it. Being holder of PhD in law, Šešelj used all his legal knowledge to hinder the procedure against him. Šešelj’s saga has been disaster for the ICTY: during the period of his long detention he has been found in contempt of the court three times for disclosing identities of protected witnesses, refused court-appointed council by going on hunger strike and used his resulting right to self-representation to delay, obfuscate and insult those he faced during the drawn out proceedings.2

* 1

2

Associate Professor, Radboud University, Law Faculty. Šešelj was initially indicted on 14 February 2003 with violations of the laws or customs of war under Art. 3 ICTY Statute (murder, torture and cruel treatment and wanton destruction, destruction or wilful damage done to institutions dedicated to religion or education and plunder of public or private property) and with crimes against humanity under Art. 5 of the ICTY Statute (prosecution on political, racial or religious grounds, deportation and inhumane acts (forcible transfer)). Alex Fiedling, ‘The Šešelj Mess Just Got Messier Following his Provisional Release to Serbia’, posted on 24 November 2014, online: http://beyondthehague.com/2014/11/24/the-Šešelj-mess-just-got-messier-following-his-provisional-release-to-serbia/.

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In his Closing Statement of 20 March 2012 he said: I managed to prove that the ICTY is illegal, that it is anti-Serbian, that it is using lies and the filthiest manipulations, and that it did not contribute in any way whatsoever of the administration of justice, but rather injustice […] So, from here, I will go straight to glory […].3 While his behaviour in The Hague and his statements frustrated the procedure to a great extent, the biggest upset was caused not by Šešelj, but by The Hague Tribunal itself.4 As pointed out elsewhere, the trial of Šešelj’is essentially a series of unfolding disasters.’ It started at the beginning of November 2007 and was concluded on 20 March 2012. The judgment of the Trial Chamber is expected to be rendered in the last quarter of 2015.5 The delay in rendering of the judgment is caused, inter alia, by the replacement of one of the judges of the Trial Chamber. Judge FrederikHarhoff was disqualified on 28 August 2013 because of a letter circulated in June 2013 in which it was found that he demonstrated a bias in favor of conviction of Šešelj. Judge MandiayeNianga who replaced him needed a period of time, at least until June 2015, to familiarize with the case. The decision on provisional release (bail) of Vojislav Šešelj of 6 November 2014 is only one in the line of mismanaged decisions which reveals the Tribunal’s weaknesses and limitations. The timeline of the most recent events begins on 6 November 2014 when the Trial Chamber decided to release Šešelj without any conditions and guarantees as provided in Rule 65(B) and as usually required and considered in cases of provisional release. Already on 1 December 2014 the ICTY Prosecutor, Serge Brammertz, filed a motion to revoke the provisional release of Vojislav Šešelj.6 In his view the Accused’s conduct subsequent to his provisional release substantiates the idea that the Chamber overestimated the gravity of his health. He claimed that Šešelj violated the conditions of provisional release by stating that he would not return to The Hague and would not appear before the Chamber unless he would be forced to do so; he also insulted and threatened victims and witnesses and for these reasons provisional release must be revoked.7 However, in dismissing the motion on 13 January 2015, the Trial Chamber found that it was ‘a tangle of inadmissible or unfounded arguments that are unlikely to challenge the Order of 6 November 2014.’8 The Chamber

3 4 5 6 7 8

www.icty.org/x/cases/Šešelj/trans/en/120320IT.htm. Daisy Sindelar, ‘In Releasing Šešelj, ICTY Solves One Problem – But Creates Many Others’, 20 November 2014, www.globalsecurity.org/military/library/news/2014/11/mil-141120-rferl02.htm. ICTY Digest, No. 151, June 2015, http://icty.org/x/file/About/Reports%20and%20Publications/ICTYDigest/2015/icty_digest_151_en.pdf. See, Prosecutor v. Vojislav Šešelj, Decision on Prosecution Motion to Revoke Provisional Release, T.Ch. III, Case No. IT-03-67-T, 13 January 2015. Id., Para. 4. Id., Para. 14.

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also stated that it could not address the points of the Prosecutor’s criticism as they were not formulated as an appeal. This led to a formal Prosecutor’s appeal against the Chamber’s decision not to revoke its decision on provisional release, filled by the Prosecutor on 20 January 2015. The appeals procedure which followed will be remembered as the first case in which the ICTY Appeals Chamber was requested to address legal aspects of an alleged breach of conditions of provisional release. In its decision of 30 March 2015 the Appeals Chamber granted the Prosecutor’s motion and the impugned Trial Chamber’s decision was in part quashed.9 It ordered the Trial Chamber to immediately revoke Šešelj’s provisional release and to return him back to the Detention Unit in The Hague in order to conduct a de novo assessment of the merits of Šešelj’s possible provisional release.10 However, instead of ordering the return to The Hague, the Trial Chamber requested the Registry to contact the medical team treating Vojislav Šešelj in order to provide the Chamber with the updated report on medical condition of the accused.11 As could have been expected, Šešelj strongly disagreed and prohibited his medical team to release any information concerning his health. On 25 May 2015 the Serbian Ministry of Justice received a request from the ICTY Appeals Chamber to deliver Šešelj to The Hague within one day, i.e. until May 26th. In his talk with the Prosecutor Brammertz who happened to be for a visit in Belgrade when the request was received, the Serbian Prime Minister, Aleksandar Vucic, said that Serbia was faced with an immoral decision of the Tribunal and that every citizen of Serbia including Šešelj, must be treated in accordance with the national laws. At the end of July 2015 both the Tribunal and Belgrade kept quiet and without taking further steps in the case. It seems that it is a deadlock situation without any prospect of being solved in favour of the Tribunal. Obviously the decision of the Trial Chamber III of 6 November 2014 – unique of that kind in the practice of the Tribunal – divided not only the judges in the Trial Chamber which ordered the release, but also brought about tension between the Trial and the Appeals Chambers. In the discussion below an attempt will be made to explain the rules and the practice of ICTY with regard to provisional release; the reasons why Šešelj had not been allowed provisional release in more than eleven years of his detention; why the Tribunal released him in November 2014 without posing any conditions as provided in Rule 65(B); and, what legal and practical consequences of the latest decisions of the Trial and Appeals Chambers can be expected future. These questions aim at uncovering the reasoning of the Tribunal and the factors playing role in the practice of the Tribunal on provisional release. 9

Decision on Prosecution Appeal against the Decision on the Prosecution Motion to Revoke the Provisional Release of the Accused, 30 March 2015 (IT – 3-67-AR65.1), Para. 22. 10 Id., Para. 22. 11 Prosecutor v. Vojislav Šešelj, Interlocutory Decision before Ruling on the Merit of the Revocation of Provisional Release of the Accused, T.Ch. III, Case No. IT-03-67-T, 10 April 2015.

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8.2

Provisional Release Is Part of Human Rights of Accused

When arrested an accused may be held in custody (on remand) or be set provisionally free (or on bail). Provisional release is based on particular reasons and is of a temporary character. The accused is obliged to return to the court when called to do so. In national legal systems provisional release is common, but it is subject to certain conditions and guarantees and under some circumstances it will not be granted. International criminal procedures regulate provisional release in a similar manner. The main reasons for imposing conditions and guarantees on provisional release are to ensure that the defendant will appear before the court when requested and that he or she will not abscond. In the national systems guarantees include, inter alia, submission of passport by the accused, restriction of movement by imposing curfew, reporting daily to the police station or prohibiting any contact with victims or witnesses. Sometimes special conditions and guarantees, such as prohibition to approach certain area or deposit of monetary values, are added. In The Netherlands provisional release can take place if the accused provides guarantees that he or she will meet the conditions for release and will not hide in case of conviction detention or imprisonment sentence. In international criminal trials these guarantees are usually requested not only from the defendant, but also from the receiving or home State of the accused where he or she intends to spend the time of provisional release, while the State of detention provides a statement that it agrees with provisional release. A court can deny provisional release for various reasons. As most important and frequent reasons for denial are a fear that if released the defendant will fail to return to custody, will commit an offence, will interfere with victims and witnesses, or will otherwise obstruct the course of justice.12 Apart from these, other factors play role as well. For example, the nature of the offence, the severity of the penalty for the crime(s) the person is accused of and sometimes the character of the accused can also be taken into consideration. Basically, in common law there are two separate and distinct grounds for denying bail: the concern of ensuring the accused’s attendance in court and the protection of public.13 All major human rights treaties contain rules on provisional release. While it can be a matter of discussion whether provisional release exists in international human rights law on its own, it is clearly closely linked and related to some other important and well-estab12 The European Court of Human Rights held that ‘the danger of an accused absconding does not result just because it is possible or easy for him to cross the frontier [but] there must be a whole set of circumstances like the heavy sentence to be expected or the accused’s particular distaste of detention, or the lack of wellestablished ties in the country, which give reason to suppose that the consequences and hazards of flight will seem him to be a lesser evil than continued imprisonment.’See, Stögmüllerv. Austria, ECtHR Judgment, Appl. No. 1602/620, 10 November 1969, Para. 15. 13 R. v. Hall case, Judgment, Supreme Court of Canada, Case No. 28223 (2002 SCC 64), 10 October 2002, Para. 56, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2006/index.do.

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lished rights of the accused. The core of the norm is that an accused or detained on a criminal charge is presumed innocent and has the right to liberty and therefore he or she should be brought promptly before a judge and shall be entitled to trial within a reasonable time or released under certain conditions. Provisional release is a guarantee that individuals arrested for committing a criminal offence will be kept in detention no longer than strictly necessary. One of the rights that are affected by denial of provisional release is the presumption of innocence which is one of the most sacred principles of criminal law. In one of its leading cases on the right to provisional release, the Supreme Court of Canada held that ‘[w]hen bail is denied to an individual who is merely accused of a criminal offence, the presumption of innocence is necessarily infringed.’14 According to the first President of ICTY, Antonio Cassese ‘[t]he presumption of innocence [generally implies] that an accused should remain at liberty unless and until he is convicted, i.e. it [implies] a “right to bail”.’15 In addition to the right to be presumed innocent and the right to liberty, keeping an accused in detention prior to conviction involves also the right to a speedy and fair trial. From the point of view of these rights it is very important that a detention of an accused prior to conviction is as short as possible. This can be achieved through the mechanisms of provisional release that can be enforced in a special judicial procedure. Accordingly, human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) do not recognize a right to bail or release pending trial, but rather, they recognize the right to have a court decide the lawfulness of a defendant’s detention promptly after arrest.16 So, for example, Article 9(4) of ICCPR stipulates that a person deprived of liberty by arrest or detention ‘shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.’ Similar provision is contained in Article 5(4) of ECHR and Article 7(6) of the American Convention on Human Rights (ACHR). ‘Detention prior to conviction is a serious infringement on the rights of defendants and has many real-life repercussions.’17 The practice of international tribunals reveals that those accused of international crimes spend long time in detention while awaiting trials. As will be discussed elsewhere in this paper, this can be explained by the gravity of the charges, the complexity of the cases international criminal courts are dealing with and by the time consuming procedures for collecting evidence and proving guilt. However, statistics, especially of ICTY, raise concerns among human rights lawyers and commenta14 Id., Para. 64. 15 Antonio Cassese, “The International Criminal Tribunal for the Former Yugoslavia and Human Rights”, European Human Rights Law Review, (1997), p. 334. 16 Caroline L. Davidson, ‘No Shortcuts on Human Rights: Bail and the International Criminal Trial’, American University Law Review, Vol. 60, Issue 1, 2010, Art. 1, p. 13, http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1601&context=aulr. 17 Id., p. 5.

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tors. In ICTY an average detention of top political leaders is longer than three years. For example, until his death in March 2006, Slobodan Miloševic had spent almost five years in detention, Radovan Karadzic was arrested in July 2008 and is still in detention and the same is with RatkoMladić who has been in continuous detention since May 2012.18 However, Šešelj had been in a far longest detention compared to all other ICTY detainees – longer than eleven years. In addition to the consideration of the above human rights of accused, there are also other reasons which favour provisional release. Detention in any case disrupts the life of the accused, deprives them from liberty, disturbs their family life and brings their employment in jeopardy. Typical for international criminal trials is that the accused are far from their families and support networks, they are considerably older and in worse health than detainees in domestic jurisdictions and, unlike in domestic jurisdictions, many international defendants are not direct perpetrators of crimes i.e. trigger-pullers and are arguably unlikely to be dangerous if released.19

8.3

ICTY Rule(s) on Provisional Release

In ICTY, like in most other international criminal courts, there are no trials in absentia. It means that, according to Article 19 of the ICTY Statute (Art. 20 of ICTR Statute) at the moment when the Trial Chamber is satisfied that a prima facie case has been established by the Prosecutor and the indictment is confirmed, the suspect may be arrested and brought to the Detention Unit in The Hague where he or she should stand a trial. Like in abovementioned common law countries, in international criminal courts, including ICTY, the purpose of the detention is twofold: to ensure that the accused will appear for trial and to prevent him or her of posing a danger to anyone. The ICTY Statute does not contain any article explicitly regulating provisional release. It seems that one of the main reasons for that is the fact that the Statute was drafted by the UN Secretary General in a rather short period of time in 1993 and because of the urgency of the situation in the former Yugoslavia no attention was paid to provisional release. Besides, the fact that the ICTY is the first international criminal tribunal established in the post-Nuremberg period, probably also played certain role. During the drafting of the ICTY Statute the provisions of the Nuremberg Military Charter and the experience of the Nuremberg Tribunal were taken into consideration, however not in respect of the rights of the accused that were almost absent in the Nuremberg Charter. ‘The lack of suspect’s rights at the Nuremberg Tribunalis due to the fact that those trials stood at the very beginning of the conception of international criminal

18 Id., p. 4. 19 Caroline L. Davidson, above n. 16, p. 4.

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justice and could not draw on the core human rights treaties adopted in the meantime.’20 Accordingly, Article 16 of the Nuremberg Charter that included only minimum rights of fair trial was of no particular use to the Statute of ICTY. However, the omission of an article on provisional release was soon after the acceptance of the ICTY Statute remedied by the adoption of Rule 65 of the Rules of Procedure and Evidence. Strictly speaking, like any other international tribunal, ICTY is not formally bound by human rights treaties.21 It means that the rules on provisional release that are included in the relevant human rights treaties have only support function in ICTY jurisprudence and can serve ‘as a litmus test within international criminal proceedings.’22 The situation is unlike in the ICC Statute in which Article 21(3) stipulates a general obligation of the Court to interpret the applicable law in consistence with internationally recognized human rights. This obligation has frequently been recalled in the jurisprudence of the ICC. Such an explicit provision is not included in the ICTY Statute, though in his early report of 1993, the former UN Secretary General, Boutros Boutros-Ghali, asserted that the Tribunal: … must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings … such internationally recognized standards are, in particular, contained in Article 14 of the International Covenant on Civil and Political Rights23 However, with respect to provisional release Article 21 the ICTY Statute is certainly of importance. This provision on the rights of accused ‘was adopted almost verbatim from Article 14 of the International Covenant on Civil and Political Rights; the international grundnorm for a fair trial.’24 The rights included in Article 21 comprise of two basic categories: (i) the right to a fair trial and the principles inherent to that right and (ii) the human rights guarantees of the accused which are to be respected during the course of the trial.25 It provides for equality of persons before the Tribunal and minimum guarantees, inter alia, to a fair and public hearing, presumption of innocence until proved guilty and the right to be tried without undue delay. Providing for these rights is a de jure obligation of

20 Clemens A. Muller, ‘The Law of Interim Release in the Law of International Criminal Tribunals’, International Criminal Law Review, Vol. 8, 2008, pp. 589-626, p. 590. 21 Rules on provisional release are stipulated in Arts. 14 and 9(3) of ICCPR, Arts. 6 and 5(3) of the European Convention on Human Rights (ECHR), Art. 7(5) of the American Convention on Human Rights (ACHR) and in Art. 11 of the Universal Declaration of Human Rights. 22 Clemens A. Muller, above n. 20, p. 589. 23 Report of the UN Secretary General Pursuant to Para. 2 of Security Council Res. 808, UN Doc. S/25704, 3 May 1993, Para. 106. 24 Antonio Cassese, “The International Criminal Tribunal for the Former Yugoslavia and Human Rights”, European Human Rights Law Review, (1997), p. 333. 25 Id.

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Snežana Trifunovska the Tribunal that applies also to provisional release.26 There are three arguments supporting such a view: (a) according to Article 21 the defendant must be treated as innocent until proven guilty, in which case any detention necessitates strong justifications; (b) the burden of proof for any continued detention rests on the prosecutor rather than the defendant, i.e. the prosecutor should prove that the accused should not be provisionally released; and (c) an accused must be proven guilty through a clear and discrete standard of proof which should be used to justify continued detention when not otherwise required.27 For provisional release are of relevance paragraphs 3 and 4(c) of Article 21 – the right to be presumed innocent until proved guilty and to be tried without undue delay. Apart from the relevance of Article 21 of the Statute, provisional release is in more detail regulated by Rule 65 of the ICTY Rules of Procedure and Evidence. From its inception in 1994 until the last amendment in 2011, Rule 65 had been changed several times.28 One of the main problems by which the Tribunal struggled was setting of a suitable standard and conditions of provisional release in Rule 65 (B) which, on the one hand, would comply with the human rights standards and, on the other hand, would be compatible with the requirements and specific character of international criminal proceedings. Until now Rule 65(B) has been amended four times (in January 1995, November 1999, December 2001 and October 2011). Though it is not of relevance for Šešelj’s provisional release since he surrendered to ICTY in 2003, it is interesting to note that in the period prior to the 1999 amendment one of the main characteristics of Rule 65(B) was its stringency. It included four criteria that had to be taken into consideration: (i) the existence of exceptional circumstances; (ii) the guarantee that the accused would return for his trial; (iii) the accused posed no danger to victims, witnesses or other persons, and (iv) the host country raised no objections. These ‘criteria were conjunctive and even if they were in fact satisfied, there was no guarantee that the accused would be granted provisional release.’29 Especially difficult was the requirement of ‘exceptional circumstances’ which led to denial of provisional release in many cases. Release was ordered very rarely and mostly because of health reasons of the accused or in order to enable them to attend funerals of their close relatives. In the Blaškić case the Trial Chamber explained that as follows: […] both the letter [of Rule 65(B)] and the spirit of the Statute of the International Tribunal require that the legal principle is detention of the accused and that release is the exception; that, in fact, the gravity of the crimes being prose26 Raphael Sznajder, ‘Provisional Release at the ICTY: Rights of the Accused and the Debate that Amended a Rule’, Northwestern Journal of International Human Rights, Vol. 11, Issue 3, 2013, pp. 109-145, p. 113. 27 Id., p. 113. 28 Rule 65 was adopted on 11 Feb 1994. It was revised or amended in 1995, 1997, 1998, 1999, 2000, 2001, 2005 and 2011. 29 Kate Doran, ‘Provisional Release in International Human Rights Law and International Criminal Law’, International Criminal Law Review, Vol. 11, 2011, pp. 707-743, at p. 719.

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cuted by the International Tribunal leaves no place for any other interpretation even if it is based on the general principles of law governing the applicable provisions in respect of national laws which in principle may not be transposed to international criminal law.30 Obviously, such a position of the Tribunal deviated from international human rights norms according to which ‘it shall not be the general rule that persons awaiting trial shall be detained in custody’31 and with the view of the Human Rights Committee which in its General Comment No. 8 claimed that a ‘[p]re-trial detention should be an exception and as short as possible.’32 Not only the requirement of the existence of ‘exceptional circumstances’ but also a rigid application of other criteria involved in some cases miscarriage of justice.33 One example of that dates back to the early practice of the Tribunal and concerns brothers Zoran and Mirjan Kupreškić in the Kupreškićet al. case. They voluntarily surrendered to ICTY in October 1997 and have spent over four years in custody, during which period their requests for provisional release were consistently rejected. Ironically enough, in the appeals procedure the conviction was reversed and they were acquitted.34 According to Kate Doran, this was a remarkable decision which clearly depicted the severity of the pre[-1999] amendment position on provisional release. The accused who voluntarily surrendered […] were detained for four years as they did not meet the ‘exceptional circumstances’ proviso Rule 65.35 She goes further by pointing out at some of the damage the two brothers suffered by so long detention. They were removed from their homes and transferred to The Hague and consequently denied any chance of employment. Moreover the brothers could not be compensated for the extreme hardship they had endured as there was, and still is,

30 Prosecutorv. Blaškić, Order Denying a Motion for Provisional Release, Case No. IT-95-14, T.Ch, 20 December 1996. 31 ICCPR, Art. 9(3). 32 Human Rights Committee, General Comment No. 8, ‘Article 9 Right to Liberty and Security of Persons’, 16th Session, 30 June 1982. 33 Kate Doran, above n. 29, p. 722. 34 Prosecutor v. Zoran Kupreškić et al., Appeal Judgment, Case No. IT-95-16-A, App. Ch., 23 October 2001, Para. 245. 35 Kate Doran, above n. 29, p. 722.

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no provision for such an application in the ICTY Statute. This is noteworthy as many international and domestic instruments provide for this eventuality.36 In ICTR practice even a more drastic is the case is of Gratien Kabiligi who was acquitted of all charges after spending 10 years and 10 months in custody.37 By the 1999 amendment the requirement of ‘exceptional circumstances’ was removed. This was done because of both the criticism that the rule was not in conformity with international human rights standards of accused and because of the difficulty in setting the standard of ‘exceptional circumstances’. However, using its discretion almost ten years later (in 2008) ‘in what seemed to be a swing in the opposite direction, the Appeals Chamber added a requirement through precedent: that accused demonstrate ‘compelling humanitarian grounds’ in their applications for provisional release to justify release made at late stages of proceedings.’38 As pointed out by Raphael Sznajder, ‘For accused in late stages of proceedings, the standard created by precedent in 2008 was even more stringent than had existed before the 1999 amendment.’39 When in 2004 Šešelj for the first time requested provisional release, the 2001 Rule 65(B) was applicable. It provided that a Trial Chamber could order provisional release only after giving the host country and the State to which the accused sought to be released the opportunity to be heard and only if satisfied that the accused would appear for trial and, if released, would not pose a danger to any victim, witness or other person.40 According to the most recent amendment of Rule 65 (B) of 2011 Release may be ordered at any stage of the trial proceedings prior to the rendering of the final judgment by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person. The existence of sufficiently compelling humanitarian grounds may be considered in granting such release. As Sznajder points out

36 37 38 39 40

Id. Id. Raphael Sznajder, above n. 26, p. 111. Id., p. 109. The 2001 Rule 65(B) reads as follows: ‘Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.’

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[t]he apparent purpose of the October 2011 amendment was to mitigate the effect of a highly subjective requirement brought about by judicial interpretation, through creation of questionable precedent. The precedent set forth by the Appeals Chamber in 2008 interjected a requirement obligating accused in late stages of proceedings to demonstrate that they had sufficiently ‘compelling humanitarian grounds’ in order to be provisionally released – in addition to fulfilling the objective requirements of Rule 65(B).41 The newest Rule has two main characteristics: (a) it allows provisional release ‘at all stages of the trial proceedings prior to the rendering of the final judgment’ which means that the accused is presumed innocent also at a late stage of the trial, and (b) the Trial Chamber is given explicit discretionary power in applying ‘compelling humanitarian grounds’ as a basis of provisional release.42 Accordingly, it is up to the Chamber whether and to which extent these criteria will be taken into consideration. ‘[C]ompelling humanitarian grounds’ are now wholly within the trial chamber’s purview to assign importance, or not, in deciding applications for provisional release.’43 The current Rule 65(B) contains three cumulative conditions which should be met for a decision on provisional release: (a) the Trial Chamber should hear the opinions of the host State and the State to which the accused seeks to be released; (b) the Tribunal should be satisfied that the accused will appear for trial; and (c) if released, the accused will not pose a danger to any victim, witness or other person. In addition to these, according to Rule 65(C) the Chamber may impose such conditions upon the release of the accused as it may determine appropriate. These may include the execution of a bail and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others. However, if the conditions under paragraph (B) are not met, the Chamber will not consider conditions under paragraph (C), but must deny provisional release.44 In establishing whether conditions of Rule 65(B) have been met all relevant factors which ‘a reasonable Chamber would be expected to consider in coming to a decision’, should be considered.45 That depends upon circumstances of each case, but the assessment must take place at the time when the Chamber takes decision on provisional measures and the Chamber is also obliged ‘to the extent foreseeable, to envisage how those circumstances 41 42 43 44

Raphael Sznajder, above n. 26, p. 109. Id., p. 134. Id., p. 135. Prosecutor v. Vojislav Šešelj, Decision on Prosecution Appeal Against the Decision on the Prosecution Motion to Revoke the Provisional Release of the Accused, App. Ch., Case No. IT-03-67-AR65.1, 30 March 2015, Para. 13. 45 The Prosecutorv. Jadranko Prlić et al., Decision on Jadranko Prlić’s Motion for Provisional Release, Case No. IT-04-74-T, T.Ch. III, 24 November 2011, Para. 10.

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Snežana Trifunovska may evolve once the accused returns to the Tribunal.’46 According to Rule 65(B) it is for the defendant to demonstrate that in case of provisional release he will comply with the conditions of appearing for trial and not posing danger to others. The Tribunal considers various factors such as whether the accused voluntarily surrendered, how serious is the charge and potential sentence, has the accused cooperated with prosecution, does the accused know witnesses, etc. The accused remains throughout the duration of his or her release, under the authority of the Tribunal and therefore he or she is requested to endure that his conduct would be respectful and discreet.47 One of the aspects that a Trial Chamber considers as part of its discretionary power is the length of the time which the accused has spent in detention. As pointed out elsewhere Article 9(3) of the ICCPR and Article 5(3) of ECHR establish that the accused has the right to a trial within reasonable time. This assessment is not done merely on the duration of the pre-trial detention but other factors are also taken into consideration such as the complexity of the case, speed of handling, conduct of the accused, conduct of the authorities. Personal interests of the accused play role, however ‘interest of justice’ and integrity of proceedings may prevail.

8.4

History of Šešelj’s Provisional Release

A. At his initial appearance before the Trial Chamber, on 26 February 2003, Šešelj stated that he would not be filling a motion for provisional release as he came to the Tribunal of his own will and did not believe that any government could provide guarantees on his behalf. However, already in June 2004 he requested the Chamber to order his provisional release until the start of the trial against him.48 In his request Šešelj raised the following arguments: (a) he offered to cooperate with the Prosecution even before he was formally indicted and before his voluntary surrender to the Tribunal shortly after the indictment against him was issued; (b) he self-represented himself in the proceedings and his procedural right to defend himself in person had been violated by his continuing detention; (c) scheduling the trial to commence only in early 2007 his right to fair and expeditious trial had been violated; and (d) family reasons.49 The Trial Chamber II rejected the motion on all grounds. With regard to the length of the pre-trial detention the Chamber noted that – given the legal and factual complexity of the case and the number of witness statements and evidence – 15 months which by then

46 Id. 47 Id., Para. 45. 48 Prosecutor v. Vojislav Šešelj, Decision on Defence Motion for Provisional Release, T. Ch. II, Case No. IT-0367-PT, 23 July 2004, Paras. 1 and 2. 49 Id., Para. 3 (IT-03-67-PT).

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the Accused had spent in detention, was not unreasonable and did not per se constitute a ground for allowing Šešelj’s request.50 Similarly, it concluded that the conditions as established in Rule 65 (B) were not met. In difference from national States, the Tribunal has no its own law enforcement mechanisms and is dependent on the effective cooperation of States and State agencies. During the time of provisional release an accused is under the jurisdiction of the State to which he or she is released. For this reason the State should be willing to ensure not only the return of the accused to the Tribunal but also that during his release the accused will have no contact with victims and Prosecution witnesses.51 Since such guarantees were not provided the Trial Chamber II concluded that the conditions for provisional release were not satisfied and denied the motion.52 B. In November 2005 the Trial Chamber II also denied a motion of Šešelj requesting the Chamber either to order the trial to commence by 24 February 2006 at latest, or to abolish detention, dismiss the indictment and release him. At the status conference of 24 January 2006 he insisted that a reasonable time limit for the beginning of the trial must be set and said the following: The point is that every reasonable deadline for the start of trial is long over. [The] Trial Chamber has evaded stating anything about this. […] But even had I been on provisional release, this time period would have been too long leading up to the start of the trial, let alone having to wait for it in detention.53 The Trial Chamber denied the motion again. It basically raised two arguments: (a) there was no legal logic in the argument of the accused that if the case would not start on that particular day the remedy would be to abolish the detention, to dismiss the indictment and to release him; and (b) it was not shown that there was a change in circumstances and that Šešelj would appear for trial and, if released, he would not pose a danger to any victim, witness or other person as required by Rule 65.54 C. Six years later, in March 2012 Šešelj submitted again a motion for provisional release. By that time he had spent nine years in detention. His request followed after the closing of the hearings on 20 March 2012 and the trial entered the phase of deliberations. During the Defence Closing Statement of 20 March 2012, Šešelj wondered: ‘What are the reasons 50 51 52 53 54

Id., Para. 10. Above n. 49, Para. 3. Id., Paras. 12 and 13. Transcript, 24 January 2006, www.icty.org/x/cases/Šešelj/trans/en/060124SC.htm. Prosecutor v. Vojislav Šešelj, Decision on Request of the Accused for Trial Chamber II to Issue an Order for the Trial to Commence by 24 February 2006 or an Order to Abolish Detention, Dismiss the Indictment and Release Dr. Vojislav Šešelj (Submission No. 116), T. Ch. II, Case No. IT-03-67-PT, 12 December 2005.

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for further detention? There is no possibility for me to flee. Where would I escape? There is no possibility for me to influence any witnesses because all the witnesses have been examined long time ago. And there is no danger of me re-offending. Why? Because the state of war is no longer in effect in the Balkans. Of course I am not expecting you to grant my motion. I know that you’re going to reject it, but I am putting you in a position in which you have to decide and which you have to reject my motion.’55 And again the motion was rejected. The Trial Chamber found yet again that the conditions of Rule 65(B) as amended in 2011, were not fulfilled: there were no convincing arguments that Šešelj would appear in court for rendering of the judgment, that he would return to The Hague when requested, nor that there were convincing arguments that he would not pose a danger to any victim, witness or other person.56 The request was dismissed not only on the basis of the Prosecutor’s argument that no State guarantees were provided, but all other evidence of importance for conditions established in Rule 65(B) RPE was taken into consideration as well. D. In difference from previous times, on 13 June 2014 the Trial Chamber III invited propriomotu the parties to make submissions on possible provisional release of Vojislav Šešelj.57 By that time Šešelj had been in detention longer than eleven years and diagnosed with colon cancer. The Government of Serbia was asked to confirm whether it was able to provide guarantees that it will, inter alia, arrest Šešelj immediately in case of violation of home confinement, take away his passport and would not issue a new travel document while the provisional measures were in place. Serbia was also asked to guarantee that Šešelj would not have any contact with victims or witnesses or would try to influence them and that it would inform immediately the Chamber in case he would breach or obstruct any of the measures put in place.58 The Government of Serbia stated that it was prepared to give guarantees that the measures imposed by the Chamber would be respected but these guarantees were ‘subject to the formal and unequivocal commitment of the Accused to respect the imposed conditions.’59 In addition, the Government of The Netherlands was called to provide its observations on a possible provisional release of Šešelj. Finally, the Trial Chamber III requested Šešelj to state in writing his commitment that he would respect the conditions of his provisional release. So he would be obliged, among other things, to place himself under the supervision of the Serbian authorities, to surrender his passport to the Serbian authorities, not to contact any victims or witnesses or seek to influence them 55 Transcript, 20 March 2012, www.icty.org/x/cases/Šešelj/trans/en/120320IT.htm. 56 Above n. 49, Para. 15. 57 The Prosecutor v. Vojislav Šešelj, Order Inviting the Parties to Make Submissions on Possible Provisional Release of the Accused Proprio Motu, T. Ch. III, Case No. IT-03-67-T, 13 June 2014. 58 Id., Para. 10. 59 The Prosecutor v. Vojislav Šešelj, Order Terminating Process for Provisional Release of the Accused Proprio Motu, T. Ch. III, Case No. IT-03-67-T, 10 July 2014.

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in any manner, to return to the Tribunal on the date indicated by the Chamber and to comply strictly with any order of the Chamber varying the conditions of or terminating the provisional release.60 In his Separate Opinion, the Chamber’s Presiding Judge, Jean-Claude Antonetti, went further in setting conditions of Šešelj’s provisional release. He held that the order should include also a provision that ‘should [Šešelj] fail to state formally his commitment to comply with the conditions, the Chamber will be forced to withdraw the provisional release propriomotu.’61 In his view there was no other way of allowing the provisional release as it was ‘absolutely necessary’ to implement the guarantees by the Chamber.62 Since the ICTY Rules do not regulate the question of propriomotu decision on provisional release the Chamber was obliged to follow a general provision on guarantees as included in Rule 65. So, it would not be possible to depart from Rule 65 without the risk of abusing the discretionary power of the Chamber.63 At the end Judge Antonetti said: The situation is relatively simple one: if the Accused gives his consent in writing that he will respect the conditions that were set out, he will return to Begrade; should he maintain the position he expressed in his submission, regretfully I will have no other choice but to find that he should remain in detention awaiting a judgment for which no one knows the date of delivery.64 However, as it could have been expected, Šešelj rejected to commit himself with respect to any conditions except that he would not leave the territory of Serbia. Since no guarantees were provided on 10 July 2014 the Trial Chamber III decided to terminate the process of provisional release.65 E. Notwithstanding the above, because of the worsening of Šešelj’s health, already at the beginning of November 2014, the Trial Chamber III decided, again propriomotu, to examine the possibility of his provisional release. The Dutch and the Serbian Governments

60 The Prosecutor v. Vojislav Šešelj, Order Inviting the Accused to State his Commitment to Respect Guarantees of his Possible Provisional Release Proprio Motu, T. Ch. III, IT-03-67-T, 3 July 2014. 61 The Prosecutor v. Vojislav Šešelj, Separate Opinion of Presiding Judge Jean-Claude Antonetti to the Order Inviting the Accused to State his Commitment to Respect Guarantees of his Possible Provisional Release Proprio Motu, T. Ch. III, Case No. IT-03-67-T, 3 July 2014. 62 Id. 63 Id. 64 The Prosecutor v. Vojislav Šešelj, Separate Opinion of Presiding Judge Jean-Claude Antonetti to the Order Inviting the Accused to State his Commitment to Respect Guarantees of his Possible Provisional Release Proprio Motu, T. Ch. III, Case No. IT-03-67-T, 3 July 2014. 65 Id.

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were invited again to file their observations regarding the possible release and, in addition, the Serbian Government was requested to confirm that it will be able to guarantee that the Accused will have no contact with witnesses or victims and that he will return to the Tribunal when ordered to do so by the Chamber.66 While The Netherlands did not oppose a possible provisional release of the Accused, the Serbian Government agreed (like in June 2014) with the release of Šešelj to its territory on the condition that ‘he adheres to the conditions set by the Chamber.’ In other words, the Serbian Government was prepared to give guarantees only if the Accused confirmed that he would accept and respect the conditions of provisional release as imposed by the Chamber.67 Strangely enough, in the follow up procedure the Trial Chamber III – with Judge Antonetti presiding – did not take into consideration the consent, i.e. observations of the two Governments, especially that one of Serbia which was made conditional, but decided on 4 November 2014 to order the release of the Accused strictly on humanitarian grounds and not to impose on him any other condition than not to influence witnesses and victims, and to appear before the Chamber as soon as he is so ordered.68 In his dissenting opinion, Judge MandiayeNiang strongly disagreed with the decision of the Trial Chamber. His main arguments were the following: Firstly, unlike for the order of July 2014, this time the Trial Chamber did not follow the request of Serbia to ask the accused formally to confirm that he would respect the conditions of provisional release. In his view The majority, no doubt fearing a deadlock in view of the earlier attitude of the Accused, did not deem that it had to consult the Accused again. It was satisfied to declare its trust that ‘the Accused will comply with the aforementioned requirements’, that is, that he will ‘not … influence witnesses and victims and [will] appear before the Chamber as soon as it so orders’.69 According to Judge Niang, the Chamber also missed to hold a status conference as provided in Rule 65 bis which would be an appropriate framework to enter into dialogue with the 66 The Prosecutor v. Vojislav Šešelj, Order Inviting the Host State and Receiving State to Submit Observations on Possible Provisional Release of the Accused Proprio Motu, T. Ch.III, Case No. IT-03-67-T, 4 November 2014. 67 Id. 68 Id. 69 The Prosecutor v. Vojislav Šešelj, Dissention Opinion of Judge Mandiaye Niang to the Order of Provisional Release of the Accused Proprio Motu, T.Ch. III, Case No. IT-03-67-T, 4 November 2014.

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Accused about his health and conditions accompanying his provisional release.70 He reminded that when in June 2014 Šešelj was consulted on a possible provisional release, he expressed his criticism of the current Serbian authorities whose guarantees he did not recognize and remained quiet with regard to his possible attitude towards witnesses or his return before the Chamber when he would be required to do so.71 This time, in November 2014, the Chamber did not insist on getting any assurances from Šešelj, but relied only on trust. This was in the view of Judge Niang wrong. He rightly asked: [w]hy be content with a statement of trust, as was done by the majority, when we have the possibility of checking whether the Accused will adhere or not to our conditions and we can then apply, if needed be, alternative measures?72 Secondly, since the Trial Chamber missed the opportunity to consult Šešelj on the conditions of provisional release and to ask for his consent as requested by the Government of Serbia, the Chamber did not order any monitoring mechanism and did not impose any obligations on Serbia in that respect. This made Serbia’s cooperation infeasible. If the Trial Chamber had no consultation with Šešelj, Judge Niang claimed that at least it could impose obligations on Serbia to monitor Šešelj and thereby to ensure protection of witnesses.73 As from the beginning of November 2014 when the Trial Chamber III ordered provisional release, very unique developments took place. These developments were set off primarily by Šešelj’s use of hostile and hatred speech immediately after his return to Belgrade and by his calls for a Greater Serbia. His defamatory statements met with a strong reaction elsewhere and especially in Croatia which started mobilizing international efforts to revoke the Tribunal’s decision on provisional release and to return him to prison. On 25 November 2014 the European Parliament passed a non-binding resolution in which it noted that the hatred speech used by Šešelj publicly and his ideology disturbed many people in the countries of former Yugoslavia and was not contributing to the regional conciliation. It called on the ICTY to withdraw the provisional release and to prevent his hate speech.74 That, among other things, encouraged the Office of the Prosecutor ‘to redouble efforts to ensure accountability for serious violations of international humanitarian law and to firmly stand against all forms of revisionism.’75

70 71 72 73 74

Id., Paras. 7-8. Id., Para. 6. Id., Para. 9. Id., Para. 11. ‘Resolution on Serbia: the case of accused war criminal Vojislav Šešelj’, adopted by the European Parliament on 25 November 2014 (B8-0294/2014). 75 Completion Strategy Report: Prosecutor Brammertz’s address before the United Nations Security Council, Press Release, 10 December 2014, www.icty.org/sid/11599.

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As result of that and as discussed above, on 1 December 2014, Prosecutor Bremmerz started a procedure for termination of Šešelj’s provisional release. In the procedure that followed the refusal of the Trial Camber to deal with the Prosecutor’s request, the Appeals Chamber considered whether the Trial Chamber has correctly exercised its discretion in reaching that decision.76 The Appeals Chamber firstly dealt with the standard of review and applicable law. It pointed out that there are certain circumstances under which the Appeals Chamber may overturn a discretionary decision of the Trial Chamber. It can be the case: if the Trial Chamber based its decision on incorrect interpretation of governing law or on patently incorrect conclusion of fact or if it is so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.77 Apart from that, the Appeals Chamber might also consider whether the Trial Chamber has given sufficient weight to extraneous or irrelevant considerations or has failed to give weight or sufficient weight to relevant considerations in reaching its decision.78 In its Order of 30 March 2015 majority of the Appeals Chamber (two judges dissenting) found that there was an error of law because the Trial Chamber failed to address the Prosecution’s argument that Šešelj’s statements that he would not return to the Tribunal eroded the essential preconditions for his provisional release and that ‘no reasonable trial chamber could have remained satisfied that the first of the two pre-conditions of Rule 65(B) of the Rules, which have to be cumulatively met, remained fulfilled.’79 Consequently, it ordered the Trial Chamber: to revoke its decision on provisional release; as soon as possible after Šešelj’s return to The Hague to give Serbia and The Netherlands an opportunity to be heard in accordance with Rule 65(B); and, to conduct a de novo assessment of the merits of Šešelj’s possible further provisional release.

8.5

Possible Legal and Practical Responses to the Current Situation

At this moment (July 2015) no further steps to resolve the impasse are being taken by any of the actors involved. In the Tribunal itself the Trial Chamber is obviously not eager to comply with the decision of the Appeals Chamber. One could think that the reason for that might be because it shares the opinion of the two dissenting Judges of the Appeals Chamber, Tuzmukhamedov and Afanđe. They held that the extent to which the Appeals Chamber

76 The Prosecutor v. Vojislav Šešelj, Decision on Prosecution Appeal Against the Decision on the Prosecution Motion to Revoke the Provisional Release of the Accused, App. Ch., Case No. IT-03-67-AR65.1, 30 March 2015, Para. 10. 77 Id., Para. 11. 78 Id. 79 Id., Paras. 18 and 19.

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[made] determination on factual issues may give the impression that the Appeals Chamber [was] not limiting itself to addressing the appeal of the 13 January 2015 Decision, but [was] instead substituting itself for the Trial Chamber and [was] dealing with the matter under the general rules of reconsideration, even though the Prosecution invoked Rule 65(D) of the Rules.80 The manner in which the relevant rules were interpreted in the Decision of the Appeals Chamber ‘might be perceived as usurping the Trial Chamber’s authority and function.’81 As further pointed out in the Dissenting Opinion, the power to revoke the provisional release and to order Šešelj to attend a hearing is a matter solely within the remit of the Trial Chamber.82 In addition, as one of the problematic aspects, the dissenting Judges stressed that there is no adopted standard of proof that the Appeals Chamber could apply in order to establish that the accused violated any of the conditions of provisional release.83 The unwillingness on the part of the Trial Chamber to comply with the Decision of the Appeals Chamber and the latter’s issuing of the request to the Serbian Government on 25 May 2015, reveal that the differences in the views between the Trial and Appeals Chambers are serious. They show a lack of appropriate rules and standards, as well as limitations of the Tribunal to deal with a situation such as this one what certainly brings the reputation of the Tribunal into question. In the period February-March 2015, the Trial Chamber (meeting in a different composition) considered also urgent requests for provisional release of Goran Hadzić. In this case it decided on three occasions to deny the requests by Hadzić (in detention since July 2011), who suffers from brain cancer in a terminal stage. The motions were denied notwithstanding the fact that the conditions as set in Rule 65(B) were fulfilled: the Host State and the Government of Serbia provided appropriate guarantees and there was no risk that he would flee or pose danger to any victim or witness.84 Despite the medical reports which stated a low life-expectancy of Hadzić and seriousness of his condition, the Chamber held that the Defence failed ‘to provide sufficiently compelling humanitarian reasons justifying provisional release’ or ‘to demonstrate an urgency which necessitates a decision on interim provisional release.’85 It was only by a decision of the Appeals Chamber of 13 April 2015 that provisional release of Hadzić was granted (under strict conditions imposed on him and on the Serbian Gov-

80 81 82 83 84

Above n. 74. Joint Dissenting Opinion of Judges Tuzmukhamedov and Afanđe, Para. 4. Id., Para. 7. Id., Para. 18. Id., Para. 8. Prosecutor v. Goran Hadzić, Decision on Urgent Interlocutory Appeal from Decision Denying Provisional Release, Case No.IT-04-57-AR65.1, App. Ch., 13 April 2015, Para. 4. 85 See, the Decision on Defence Urgent Request for Provisional Release of 11 February 2015, the Decision on Second Urgent Request for Interim Provisional Release of 25 February 2015 and the Decision on Defence Urgent Request for Provisional Release of 13 March 2015.

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Snežana Trifunovska ernment) and the impugned decision was quashed.86 Later on, in May 2015, the Trial Chamber decided to approve a new Defence motion and to order a new provisional release.87 On the first glance it might seem that, frightened by the experience in the Šešelj case, the Trial Chamber in the Hadzć case was extra cautious in (not) allowing provisional release, despite the fact that he is in terminal stage of his illness. However, an overview of the decisions on provisional release does not support such a view. It has always been so that the Trial Chamber(s) were very restrictive in allowing provisional release, including provisional release of seriously ill accused. Allowing to Šešelj a release on purely humanitarian basis and without any conditions, is one exception in which the Trial Chamber III acted inconsistently with its own practice and Rule 65 that has certainly not set a precedent in the practice of the Tribunal. The questions why it happened and whether there were some other than humanitarian reasons for the Trial Chamber to decide so, would lead only to speculations that would go outside legal considerations. With regard to enforcement of the Appeals Chamber’s Decision, one can note that, even if the Trial Chamber was prepared to comply, under the existing conditions it would be very difficult, if not impossible, to do that. Šešelj publicly and on various occasions rejected the possibility to return to The Hague. It means that it would be on the Serbian authorities to arrest and surrender him to ICTY. However, in the absence of the guarantees of the Serbian Government, the possibility of ICTY to request its cooperation is undermined. The Tribunal could rely on the general provision included in Article 29 of ICTY Statute which imposes on States an obligation to cooperate. It could also report the noncompliance to the UN Security Council, though it is not clear if it would be sufficient to enforce the decision and return Šešelj to prison. Apart from that, political pressure by some important international actors could be considered. Serbia is candidate for EU membership and in the given situation its political and economic interests might prevail. For the Tribunal it is in a way fortunate that the trial procedure against Šešelj was completed in 2012 and as of July 2015 the Trial Chamber judgment was pending. If it were not the case, in the situation like this one it would be difficult to continue the trial in the absence of the accused. The concept of trials in absentia is not new in international proceedings(in 1945 the Nuremberg Tribunal tried Martin Bormann in absentia and sentenced him to death) and since recently there is an increasing tendency of the tribunals to allow the absence of an accused from some sittings i.e. parts of the procedure. However, as pointed out above, in ICTY Statute there is no article explicitly providing for such trials. It is because there was a widespread perception that trials in absentia should not be provided for in the Statute, as this would not be consistent with Article 14 of ICCPR according to

86 Above n. 82. 87 See, Prosecutor v. GoranHadzić, Decision on Urgent Motion for Provisional Release Filled on 28 April 2015, Case No. IT-04-75-T, T. Ch., 21 May 2015.

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which the accused shall be entitled to be tried in his presence.88 Hence, the Statute in Article 21(4)(d) stipulates that the accused shall be entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing. This provision imposes a legal obligation on the Tribunal to have the accused in its custody. Theoretically, it could hold hearings in absence of an accused if the accused waives his right and chooses not to be present at the trial; because of his poor health; or, when he willingly disrupts the court proceedings. So, for example, in November 2006 Šešelj was removed from the status conference because of the persistent obstruction of the proceedings and the defence was temporarily taken over by his lead stand-by counsel and his co-counsel.89 However, currently, this consideration is of no relevance since the trial of Šešelj is finished and the Trial Chamber is in deliberation. One of the possibilities that now might be considered is delivering of a judgment in the absence of the accused. In some views, the Trial Chamber can make use of Rule 98(C) ter which provides that the judgment shall be rendered by a majority of judges and shall be followed by a written judgment as soon as possible afterwards.90 This might be a desirable alternative solution in providing justice. But even if that would be possible and Šešelj would be convicted, under current circumstances the significance of such a judgment would be only symbolic as long as Šešelj remains released. Having in mind the fact that Šešelj’s illness is life threatening, from the ethical point of view it would be wrong to bring him back to The Hague while he is in this situation and to prevent him from receiving – in his view – the most appropriate medical treatment. That would deprive Šešelj from his right to health which is a fundamental part of human rights which he enjoys, notwithstanding his status of an accused for international crimes.91 In the past, the Tribunal has prevented Slobodan Milošević from getting the requested medical treatment92 and currently Ratko Mladić is also not allowed to get a medical treat88 Above n. 23, Para. 101. 89 www.sense-agency.com/icty/Šešelj-removed-from-courtroom.29.html?cat_id=1&news_id=9915. 90 Rule 98 (C) ter stipulates: ‘The judgment shall be rendered by majority of the Judges. It shall be accompanied or followed as soon as possible by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.’ See, blog of Luka Misetic, ‘How the ICTY can still Salvage the Šešelj Trial’, Misetic Law, 13 November 2014, online: http://miseticlaw.blogspot.nl/2014/11/how-icty-can-still-salvage-Šešelj-trial.html. 91 In Cabal and Pasini v. Australia case, the Human Rights Committee held that though in the ICCPR there is no specific provision on health of detainees, that issue could be raised under Art. 6(1) – the right to life and Art. 10(1) the right to dignity and human treatment. See, Cabal and Pasiniv. Australia, View of the Human Rights Committee, CCPR/C/78/D/1020/2001, Communication No. 1020/2001, 7 August 2003, Para. 7.7. 92 The former President of Serbia, Slobodan Miloševic, who was arrested by Serbian authorities on 1 April 2001 and transferred to The Hague on 29 June 2001, asked for provisional release in order to get medical treatment in a medical center in the Russian Federation. However, on 23 February 2006 the request was denied because his trial was ‘in the latter stages of a very lengthy trial, in which he is charged with many serious crimes, and at the end of which, if convicted, he may face the possibility of life imprisonment. In these circumstances, and notwithstanding the guarantees of the Russian Federation and the personal undertaking of the Accused, the Trial Chamber was not satisfied that the first prong of the test has been met – that is, that it is more likely than not that the Accused, if released, would return for the continuation of

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ment outside The Netherlands, despite the fact that he is seriously ill and not fit to stand the trial. Understandably, the primary task of the Tribunal is to prosecute and bring to justice those responsible for international crimes, but, as it has been frequently pointed out, that can properly be done only with full respect of the rights of accused. Not allowing timely provisional release to a seriously ill accused is especially aggravated if the person has already been in detention for a long period of time. During the eleven years spent in the prison in The Hague Šešelj’s health significantly deteriorated. Though lengthy detentions occur regularly in international criminal procedures, such a long detention without any provisional release during that time and without a conviction, like it happened with Šešelj, is unprecedented not only in ICTY but in international criminal practice as well. According to some data ICTY detainees spend almost 17 months in detention before their trials even began.93 Only to mention, Dario Kordic had spent seven years and Momčilo Krajišnik almost nine years in ICTY detention before receiving their final sentences.94 In ICTR there is a similar situation.95 There are some indications that in the ICC will be the same problem: in the case of Germain Katanga it took a period of seven years of detention until the Trial Chamber judgment (from 2007-2014) and eight years in case of Thomas Lubanga Dyilo until the final sentence in the appeals procedure was rendered in December 2014. Excessively long periods of time that the procedures take are considered as one of the ‘unfortunate shortcomings’ of international tribunals.96 They are explained by the inherent difficulties of international proceedings.97 Antonio Cassese lists four types of such intrinsic difficulties: (a) the complexity of international crimes such as genocide, war crimes and crimes against humanity which normally are a manifestation of organized criminality and involve more than one person; (b) the difficulty of collecting evidence that may be scattered over large territories or more than one state; (c) the need to prove some special ingredients of the crimes, for example, in the crimes against humanity the existence of a widespread or systematic practice; and, (d) language problems and conduct of proceedings in at least two and possibly in three or more languages, with the consequence that documents and

93 94 95

96 97

his trial (The Prosecutor v. Slobodan Milošević, Decision on Assigned Counsel Request for Provisional Release, T. Ch, Case No. IT-02-54-T, 23 February 2006. Para. 18). Only two weeks later, on 11 March, Miloševic died in his cell without receiving the necessary medical treatment. Milena Sterio, ‘Pirates’ Right to a Speedy Trial’, in: Michael P. Scharf et al. (Eds), Prosecuting Maritime Piracy: Domestic Solutions to International Crimes, Cambridge University Press 2015, pp. 172-204, at p. 194. Id. So, for example, Bagosora et al. four detainees spent more than 13 years in ICTR detention before the final sentence was delivered, while in Nyiramasuhuko et al. case the six detainees spent even 15 years before the judgment by the ICTR trial chamber was delivered and as of June 2015 the appeals procedure was still pending. See, Milena Sterio, above n. 93. Above n. 90. Antonio Cassese, International Criminal Law, Oxford University Press, 2nd ed., 2008, p. 443.

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exhibits need to be translated into all these languages.98 According to Cassese the adversarial model further protracts international criminal proceedings as it requires that all evidence be scrutinized orally through examination and cross-examination.99 The need to keep the accused in custody of an international criminal court is also warranted by their scant reliance on the cooperation of the relevant states to ensure that the accused will appear in court once summoned to resume their participation in trial or appellate proceedings.100 This problem is more serious in international courts, however national courts also have difficulties in getting the accused back to prison. In such cases national courts usually issue arrest warrants, although such warrants are not a guarantee that the justice will be served. According to some data of 118,500 arrest warrants issued in England and Wales in 2002, only 45 per cent were served on the absconder by the police within three months after issue. The consequences of this are broader than it may seem on the first glance: ‘[p]ublic confidence in the criminal justice system is weakened if defendants skip their court hearings, leading to failed trials.’101 The same goes for international criminal justice system which are by their nature and constitution weaker than national criminal systems as they do not have any enforcement bodies on their own. However, while the above mentioned arguments explain why international criminal procedures take so long, from the point of view of the rights of accused they cannot serve as justification. In the Lubanga case the Defence rightly noted that: [i]t is axiomatic to state that in an international criminal law case the majority of evidence will be located abroad or that there will be a significant amount of evidence. In fact one of the rationales for international criminal tribunals is that they will be able to cope with the extra demands of large and complex cases because they will have the infrastructure to sort, store and use evidence in large and complex cases. […] therefore to then use this argument as a justification for having an inordinately long […] detention is fundamentally unfair.102 But with regard to Šešelj it is not only that the above reasons played role in his long detention. Practical arrangements and the (mis)management of the Tribunal contributed to delays in the procedure as well. That has been admitted by the ICTY President, Judge Theodor Meron, who recently noted that ‘[t]he Šešelj case has suffered from the departure of many Chambers staff members, including three team leaders and three senior legal 98 99 100 101 102

Id. Id. Id. Malcolm Davies et al., Criminal Justice, Pearson Education Limited, 4thed., 2010, p. 288. The Prosecutor v. Thomas Lubanga Dyilo, Defence Appeal against the ‘Décision sur la demande de mise en liberté proviosire de Thomas Lubanga Dyilo’, PT. Ch.I, Case No.ICC-01/04-01/06, 26 October 2006, Para. 44.

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officers’ and that ‘[e]very effort is being made to secure appropriate resources to ensure that final judgement drafting is not further delayed owing to these departures.’103 On the other hand, one should also not forget that by obstructing the procedure, Šešelj certainly contributed to the prolongation of his detention. He has been portrayed as hardliner, a man whose defence strategy at The Hague has been one of attack, vowing to ‘blast the court to pieces’.104 By his behaviour during his detention, Šešelj made difficult for the Trial Chamber to focus on the main aspects of the case and on the evidence presented to it. Overall it can be concluded that despite its efforts, ICTY missed the chance to set exemplary standards regarding provisional release and that the principle of presumption of innocence and fair trial has not been given sufficient consideration. It should be subject of a separate study to determine more broadly whether and to which extent ICTY has complied with human rights standards of accused. In that study the competing interests which international criminal prosecutions should satisfy, should certainly be taken into consideration. But, as the late Antonio Cassese said, the rights of the accused are central to the concept of justice105 and as it was held in the Lubaga case [w]here fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.106 As regards Šešelj’s provisional release the story is not yet finished and further developments should be awaited with due patience.

103 Assessment and Report of Judge Theodor Meron, President of the International Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to Para. 6 of Security Council Res. 1534 (2004) and covering period from 16 November 2014 to 15 May 2015, UN Doc. S/2015/342 of 15 May 2015, Para. 23. 104 Colin Freeman, ‘Serbian indicted war criminal released by The Hague hits back at the West’, article published in The Telegraph, 13 December 2014, www.telegraph.co.uk/news/worldnews/europe/serbia/11291971/Serbianindicted-war-criminal-released-by-The-Hague-hits-back-at-the-West.html. 105 Antonio Cassese, “The International Criminal Tribunal for the Former Yugoslavia and Human Rights”, European Human Rights Law Review, (1997), p. 333. 106 Prosecutor v. Lubanga, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Defence Challenge to the Jurisdiction of the Court pursuant to Art. 19 (2)(a) of the Statute of 3 October 2006, App. Ch., Case No. ICC-01/04-01/06 (OA4), 14 December 2006, Para. 37.

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Réka Varga*

9.1

Introduction

The 1956 revolution in Hungary and the brutal response from the communist government remains one of the darkest episodes of the 20th Century Hungarian history. Among the acts included in the response on protestors were the indiscriminate firing of weapons on the demonstrating crowds – the so-called volley-fire cases – and the subsequent persecution of anti-communist ‘elements’, including torture, killing, illegal imprisonment and execution. To this day, no systematic attempts have been made to bring those responsible to justice. The failure to address communist crimes in Hungary continues to be a bleeding wound in Hungarian society after the fall of communism. In the 1990s the Parliament made several attempts to overcome the main legal impediment to prosecution of these crimes, that being the statute of limitations. Following the example of many countries facing the same question, the Hungarian Parliament endeavoured to incorporate the position that the statute of limitations should be treated as dormant until the regime that facilitated the crimes relinquished power. This approach recognizes that so long as the regime that perpetrated these crimes was divested of power, it was impossible to persecute such crimes and those responsible for perpetrating them. However, these legislative attempts were eventually all quashed by the Constitutional Court.1 While a basis for prosecution of these acts and of those perpetrating them was technically available under international law principles, apart from a few cases against lower-level perpetrators involved in the volley-fires, no systematic attempts were made to prosecute communist crimes based on international law. The question of how to deal with crimes committed in the communist regime was thus left unanswered for long years.

*

1

PhD, senior lecturer, Pázmány Péter Catholic University, Department of Public International Law; international law advisor to the Hungarian Red Cross; former legal advisor of the International Committee of the Red Cross (ICRC). E-mail: [email protected]. See Constitutional Court Dec. 11/1992 and 53/1993.

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In 2010, a documentary interview with Béla Biszku, Minister of Interior of Hungary between 1957 and 1961, was broadcast on national television. In that documentary, the former Minister denied the crimes committed in the 1956 revolution, resulting a huge uproar by Hungarian society. Biszku, now 94, was eventually charged with war crimes and denial of communist crimes in 2012. He was tried by the Metropolitan Court and sentenced to five and a half year imprisonment in 2014 for war crimes and denial of communist crimes (and for misuse of ammunition – not connected to the 1956 events). This case reopened the public debate on prosecution of crimes committed in the communist era. The proceedings against Biszku in 2012 were preceded by extensive delays and procedural morass. First, there was an unsuccessful attempt to initiate criminal investigation against him for his deeds committed as Minister of Interior during the communist regime, including the facilitation of pre-meditated criminal trials which resulted in the illegal imprisonment and eventually execution of a large number of persons in the years following 1956. The request to investigate these criminal offences was rejected by the prosecutor based on arguments which did not seem to be well founded in the decision.2 The main argument behind the rejection was the prosecutor’s determination that the acts in question did not constitute crimes against humanity, and that, if they did not qualify as crimes against humanity, the period available for their prosecution had elapsed. The primary shortcoming of the decision of the prosecutor to ignore the investigation of these crimes is that there were absolutely no arguments as to why the prosecutor decided that the crimes were not international crimes. Another worrying aspect is that while the prosecutor may have identified the crimes specified in the criminal complaint as those not qualifying to be international crimes, it could have initiated investigations ex officio in the case of other crimes that, in its view, qualified as international crimes. Such a move would have testified to its determination to prosecute communist crimes. The General Prosecutor’s Office’s unsupported conclusions that the crimes were not international crimes made it clear that the office, probably due to a general uneasiness to apply international law, would not enforce standing international obligations such as prosecuting crimes against humanity through directly applying international law, and it also became clear that they refused that the statute of limitations for crimes against humanity and war crimes would not apply, and would accept such a position only if a Hungarian law expressly implemented such provisions. The General Prosecutor’s Office demonstrated this refusal despite existing international obligations in promulgated treaties and in customary law.

2

See R. Varga, Facilitating War Crimes Procedures in Hungary: The New Criminal Code and Lex Biszku, in M. Szabó-P.L. Láncos-R. Varga (Eds.) Hungarian Yearbook of International Law and European Law 2013, Eleven Publishing, The Hague, 2014, pp. 491-507, pp. 497-498.

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In response to this action by the General Prosecutor’s Office, and with a view to assist the prosecutors’ work, the legislature adopted the so-called Lex Biszku,3 which repeated parts of the text of the 1968 New York Convention on non-applicability of statute of limitations for war crimes, crimes against humanity and genocide, and implemented the notion of crimes against humanity into Hungarian legislation. This, in itself, and strictly legally speaking, was an unnecessary step, since the text of the New York Convention was already available in Hungarian law when it was promulgated by Hungary and the notion of crimes against humanity was existent in international customary law. Lex Biszku simply repeated the text already available and in force in the promulgated international treaty. However, as it appeared from the developments that unfolded and as will be described below, the adoption of this law seemed to be an essential step by the legislature to move things forward. Eventually, even despite the adoption of Lex Biszku, the General Prosecutor did not initiate investigations ex officio. The prosecution of Minister Biszku only moved forward when a third party made a criminal complaint which finally triggered the initiation of a criminal investigation. Even though the complaint encompassed all the allegedly criminal actions of Minister Biszku occurring during and after 1956 in a broad sense, the prosecutor concentrated on the volley-fire case of Salgótarján. The prosecutor’s reasons for limiting the scope of the prosecution to these events remains unexplained. The indictment filed with the court was reportedly not researched exhaustively.4 The first instance court found Béla Biszku guilty of war crimes through the act of giving indirect orders for the Salgótarján volley-fire. The first instance court also found the former Minister of Interior guilty of denial of communist crimes and sentenced him to five and a half years imprisonment. The decision was appealed, and the Metropolitan Regional Court acting as second instance court found in 2015 that the first instance judgment was not well founded and that the judgment failed to comply with the necessary requirements of establishing facts, evidence and providing solid legal reasoning. The Metropolitan Regional Court sent the case back for retrial by the court of first instance.5 The whole procedure, beginning with the indictment, was heavily criticised for poor legal arguments, insufficient research and was generally seen as a ‘shame for the Hungarian justice system’ among the Hungarian general public and experts.6 3 4 5

6

Law CCX of 2011. See http://mandiner.hu/cikk/20150602_gellert_adam_az_igazsagszolgaltatas_kudarca_a_biszku_per. See www.origo.hu/itthon/20150531-biszku-bela-itelet-jogeros-fovarosi-brosag-eletfogytiglan.html (last visited 14 July 2015). The second instance judgment was not yet directly available at the time of drafting of the present article. The whole procedure was heavily criticized by basically everyone: the defence lawyer of Biszku (see: www.origo. hu/itthon/20150608-biszku-bela-itelet-magyar-gabor-gulyas-gergely-fidesz-jobbik-igazsagszolgaltataspartatlansag.html), the prosecutor who prepared the indictment (see: http://magyarhirlap. hu/cikk/27999/A_forradalmat_kerdojeleztek_meg), the Head of the National Judicial Authority (see:

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All in all it seems fair to state that throughout the process since the 1990s, amid the failed weak efforts of prosecuting communist crimes, the actions of the legislative power, the prosecutors and the judges included worrying signs of a weak understanding of international law7 and a failure to adopt a comprehensive approach to comply with standing international obligations.8,9 The present article focuses on the international law aspects of prosecuting communist crimes in general and the Biszku case in particular. The article highlights that there was an obligation based on international law to prosecute war crimes and crimes against humanity, and that the failure of Hungarian authorities to act on this since 1990 eventually results in violation of international law. Trials could have been conducted without any specific Hungarian implementing legislation in place. The article also seeks to demonstrate the uneasiness of prosecutors and judges to directly apply international law – a phenomenon also appearing in other states. The article also incorporates the legal background of the development of individual criminal responsibility and the notion of war crimes and crimes against humanity which could be applicable for the 1956 revolution and its aftermath, and the legal obligation to prosecute such crimes domestically. Such an introduction to the more than half a centurylong existence of international crimes and the obligation to prosecute them domestically testifies to the main message of the present article, notably that international obligations do exist to prosecute communist crimes and the international community demands that such crimes are not left unpunished. Finally, in all fairness with prosecutors and judges and acknowledging the difficulties they are facing, the article also demonstrates the practical aspects and challenges of domestic prosecution, with some examples of interauthority cooperation in other countries to ensure effective trials.

7

8 9

http://index.hu/belfold/2015/06/23/megelegelte_a_birosagot_ert_tamadasokat_hando_tunde/), political parties (see www.fidesz.hu/hirek/2015-06-08/tegyunk-meg-mindent-az-igazsagtetelert/) and by experts (see: http://mandiner.hu/cikk/20150602_gellert_adam_az_igazsagszolgaltatas_kudarca_a_biszku_per). Hungarian court decisions, including Supreme Court decisions included erroneous interpretations of international humanitarian law. Just to mention one, the Supreme Court defined the scope of appliation of common Art. 3 for the events of 1956 based on the criteria of Additional Protocol II. See R. Varga, Biszku és a nemzetközi jog, http://nol.hu/velemeny/biszku-es-a-nemzetkozi-jog-1549131 (last visited on 6 September 2015). Despite the clear guidance of the Constitutional Court, the legislature did not correct the mistake where it considered violations of common Art. 3 to the Geneva Conventions as grave breaches. This was the reason why the subsequent law aimed at ensuring the Hungarian legal basis for prosecuting communist crimes was once again quashed by the Constitutional Court in its Dec. 36/1996.

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9.2

Biszku-Case Reloaded: International Law Obligations and Lacuna in Compliance with Respect to Communist Crimes

International Legal Background: Evolution of Individual Criminal Responsibility, War Crimes and Crimes against Humanity 10 in International Law

During the events that are subject to review in the present article, two kinds of international crimes come into question: war crimes and crimes against humanity. Although international humanitarian law underwent substantial development from the middle of the nineteenth century until after World War I, enforcement of the offences against international humanitarian law lagged behind. The failures in establishing an international tribunal or international military tribunals after the Versailles Treaty and the serious shortcomings of holding those accountable during the Leipzig trials indicate that while the contours of war crimes law had been increasingly well established by World War II, persons violating that law faced only a hypothetical possibility of criminal sanction. In a sense, war crimes law had not yet truly become a form of criminal law.11 While individual criminal responsibility has not been a feature of international law for a long time, the Charter of the Nuremberg Military Tribunal raised the profile of individual criminal responsibility for violations of international humanitarian law.12 Moreover, the Charter states that defendants are not free of their responsibility for violations of international law as the result of their official capacity. Additionally, the defence of superior order cannot be applied as negating responsibility. At most, a claim of adherence to superior orders may serve as a mitigating circumstance.13 It was therefore the Nuremberg and Tokyo proceedings that advanced the concept of individual criminal responsibility in international law and produced important jurisprudence in this regard. As a consequence, the International Law Commission (ILC) manifested individual criminal responsibility in its 1950 report even in case the crime in questions was not criminalized in national law.14 The ILC understood international crimes as those coming

10 Certain findings under the present title have been submitted in the author’s monograph, see R. Varga, Challenges of domestic prosecution of war crimes with special attention to criminal justice guarantees, Pázmány Press, Budapest, 2014, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2499495 (last visited on 6 September 2015). 11 T. Meron, ‘Reflections on the Prosecution of War Crimes by International Tribunals’, American Journal of International Law. July 2006/100/3, p. 559. 12 Charter of the International Military Tribunal, Art. 6. 13 Charter of the International Military Tribunal, Art. 8. 14 Principes du Droit International Consacrés par le Statut du Tribunal de Nuremberg et dans le Jugement de ce Tribunal, adopted by the UN International Law Commission on July 1950, Principle II. In: D. Schindler, J. Toman, Droit des Conflicts Armés, CICR, Institut Henry-Dunant, Genève, 1996, p. 1312.

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under the jurisdiction of the Nuremberg Tribunal, and this is how eventually crimes defined in international law became ‘crimes under international law.’ The first attempt to list war crimes was the Lieber Code of 1863, a set of regulations for the American army issued by President Abraham Lincoln. The Lieber Code listed serious breaches of the law of war, to include wanton violence against persons in the invaded country, including rape and murder, and forcing enemy members to serve in the hostile army. While the Lieber Code was a national legal instrument, it had a great effect on the development of the law of war crimes. The Versailles and Sèvres Treaties did not include a list of war crimes. The Leipzig Trials were based on the 1907 Hague Regulations, even though the Regulations did not list war crimes, because the Regulations concentrated on the payment of compensation by the state as the chief form of punishment. This did not amount to holding an individual accountable for criminal acts, and thus did not amount to individual criminal responsibility. At the same time, violations of the Hague Regulations had long been seen as violations for which members of the armed forces or civilians could be held individually responsible,15 and thus the rules of the Hague Regulations served the basis for the determination of war crimes during the Leipzig Trials. The 1919 Commission, in its report, drew up a list of war crimes,16 including murder and massacre, torture of civilians, rape, and internment of civilians under inhuman conditions.17 The list, however, and the justifications for including certain elements in the list indicate that it included both war crimes and what later became crimes against humanity. This last element was the main criticism of the United States against the findings of the Commission, indicating that violations of the ‘laws of humanity’ were vague and not well established, therefore it would violate the principle of legality.18 A few years earlier, the term ‘crimes against humanity’ was used first in a Declaration endorsed in World War I with respect to acts committed against the Armenian population, demanding the prosecution of members of the Turkish government.19 However, the term did not find its way into the peace treaty at the conclusion of World War I, because, as described above, of the intervention of the US delegation, which argued that since the details of the term were not clarified, it could violate the principle of legality. The text of the Statute of the Nuremberg Military Tribunal referred to laws and customs of war, laws, a reference primarily to the 1899 and 1907 Hague Treaties and the 1929 Geneva Conventions, none of which mentioned war crimes. Therefore it was the Nuremberg 15 See above n. 11, p. 554. 16 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference, March 29, 1919. Reprinted: 14 American Journal of International Law 1920/95/14. 98. 17 See above n. 11, p. 555. 18 See above n. 11, p. 556. 19 Ferenc Sántha, ‘Az emberiesség elleni bűncselekmények’, Miskolci Jogi Szemle, 3/1, 2008, pp. 50-69, p. 51.

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Statute that first adopted the term ‘war crime’ and provided a definition for it. The Nuremberg Statute also relied heavily on customary law to overcome the problem of a lack of proper international regulation of prohibition of attacks against civilians in the international treaties in force at the time of the Second World War. Hence, the Nuremberg Statute not only adopted the term ‘war crimes’, but also filled it with precise meaning, codifying existing customary law. The 1949 Geneva Conventions and their provisions on applying penal sanctions for violations of international humanitarian law, and provisions on grave breaches were obvious followers of the Nuremberg Statute. However, the Geneva Conventions used the term ‘grave breaches’ instead of ‘war crimes’. According to the ICRC Commentary, [t]he actual expression ‘grave breaches’ was discussed at considerable length. The USSR Delegation would have preferred the expression ‘grave breaches’ or ‘war crimes’. The reason why the Conference preferred the words ‘grave breaches’ was that it felt that, though such acts were described as crimes in the penal laws of almost all countries, it was nevertheless true that the word ‘crimes’ had different legal meanings in different countries.20 The reason for adoption of the term ‘grave breaches’ was, therefore, to emphasize the difference between these very serious acts in violation of international law, referring to them as grave breaches, in contrast to ordinary crimes or infractions under national law.21 The Geneva Conventions therefore concentrated on grave breaches of the Conventions, whether or not they represented ‘crimes’ under specific domestic laws. The lists of grave breaches in the Geneva Conventions are substantially longer than war crimes listed in the Nuremberg Statute. In addition, the 1949 Geneva Conventions made the obligation of the 1929 Convention I regarding national legislation more imperative. While the 1929 Convention I merely said that ‘[t]he Governments of the High Contracting Parties shall also propose to their legislatures should their penal laws be inadequate, the necessary measures for the repression in time of war of any act contrary to the provisions of the present Convention’,22 the obligation of the 1949 Conventions ‘[…] has […] been made considerably more imperative. The Contracting Parties are more strictly bound to enact the necessary legislation than in the past.’23 The difference basically lies in the degree of obligation. The text of the 1929 Convention I suggests that implemen20 See J. S. Pictet (ed.): Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949 (First Reprint), ICRC, Geneva, 1995, p. 371. 21 G.K. McDonald-O. Swaak Goldman (Eds.): Substantive and Procedural Aspects of International Criminal Law, The Experience of International and National Courts, Commentary, Vol. I, Kluwer Law International, The Hague, 2000, p. 70. 22 1929 Geneva Convention. Art. 29. 23 See above n. 20, p. 363.

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tation of domestic legislation is a recommendation – ‘shall propose’ –, whereas the 1949 text clearly imposes an obligation – ‘Parties undertake to enact’. According to the Statute of the Nuremberg Military Tribunal, crimes against humanity are criminal acts attached to other crimes, committed during or before an armed conflict against civilian population. The aim was to criminalize actions carried out against the German Jewish population, since they legally could not be the passive objects of war crimes. Crimes against humanity were thus the basis for prosecuting Holocaust crimes where the defined war crimes could not be used to address acts in a given case. According to the Tokyo Tribunal’s Statute, crimes against humanity could be committed in peacetime as well. Crimes against humanity served also the basis for conviction in famous trials such as Adolf Eichmann and Klaus Barbie. In the Draft Code of Offences against the Peace and Security of Mankind prepared in 1954, link to armed conflict was not mentioned anymore.24 The abandoning of the necessity to link the act committed to an armed conflict as a prerequisite for the application of crimes against humanity was strengthened by the 1986 draft, the report of which stated that this link was only a part of the notion of crimes against humanity until 1954.25

9.3

Obligation to Prosecute Grave Breaches and Crimes against Humanity

When it comes to obligation of states to prosecute these crimes, international humanitarian law and international criminal law include a variety of obligations. A common element of these obligations is that states are directed under the Geneva Conventions what to do but the Conventions do not specify how a state ought to do it. The only restrictions to such procedures are fair trial guarantees which are mentioned in human rights law instruments, and are also explicitly mentioned in the Geneva Conventions. International treaties usually define an obligation to reach a certain result – the punishment of certain crimes –, which implies that states are bound to adopt internal legislation

24 ‘Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.’ See Draft Code of Offences against the Peace and Security of Mankind 1954, Yearbook of the International Law Commission, 1954, vol. II., Para. 11, http://legal.un.org/ilc/texts/instruments/english/draft%20articles/7_3_1954.pdf (last visited 13 July 2015). 25 ‘The 1954 draft code first rendered crimes against humanity autonomous by detaching them from the context of war.’ Fourth report on the draft code of offences against the peace and security of mankind, by Mr. Doudou Thiam, Special Rapporteur, Extract from the Yearbook of the International Law Commission, 1986, Vol. II(1), Para. 28, http://legal.un.org/ilc/documentation/english/a_cn4_398.pdf (last visited 13 July 2015).

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which satisfies this objective in any way they see fit.26 This approach takes into account the consideration of state sovereignty.27 The method by which a state complies with such obligations is left to them allowing the state to develop practices which conform to their legal culture, legal system and principles. The Geneva Conventions and the Additional Protocols to the Geneva Conventions contain obligations which are based on a three-pillar system:28 the obligation to repress or suppress grave breaches and the two elements of the aut dedere aut judicare principle: the obligation to search for persons having committed grave breaches and an obligation to try them or hand them over to another state.29 Contents of these elements have been further developed by customary law and by international treaties, such as the statutes of international tribunals or the Rome Statute of the International Criminal Court. The three-pillar system of the Geneva Conventions and Additional Protocol I bases itself on the differentiation between serious violations (grave breaches) and other violations, and on a practical necessity to have these violations punished by any state. The treaties themselves list the grave breaches which states are obliged to punish.30 For other violations, there is simply an obligation to suppress them, leaving the method of such suppression to states, which may, obviously, also include penal sanctions. The aut dedere aut judicare principle stems from the fear that perpetrators of serious offences would use conflicts between national jurisdictions to escape criminal liability and thus seeks to establish a global, universal solution. Under the terms of the Geneva Conventions and Additional Protocol I, grave breaches are the most serious violations of the rules, committed in international armed conflicts. Other violations committed in international armed conflicts and violations committed in non-international armed conflicts are simply labelled as ‘violations’, ‘breaches’ or ‘acts contrary’ to the Conventions/Protocols. The difference, as noted above, lies partly in the obligation to prosecute and often in the degree of sanction. Due to the underlying understanding of the grave breaches regime, that it is the states that are responsible to carry out penal procedures, the Geneva Conventions and Additional Protocol I did not detail the method by which violations are to be included in a state’s

26 See I. Fichet-Boyle – M. Mossé, ‘L’obligation de prendre des mesures internes nécessaires à la prévention et à larépression des infractions’, in: Ascensio-Decaux-Pellet (Eds.), Droit International Pénal, Editions A. Pedone, Paris, 2000, p. 879. 27 Ibid. 28 See above n. 20, p. 362. 29 Common Art. 1 of the Geneva Conventions and the obligation to ‘ensure respect’ for the provisions of the Convention also oblige States, although on a more general basis, to eventually repress violations. See R. Varga, Háborús bűncselekményekkel kapcsolatos eljárások nemzeti bíróságok előtt (War crimes procedures in front of domestic courts), in E. Kirs (Dd.), Egységesedés és széttagolódás a nemzetközi büntetőjogban, Studia Iuris Gentium Miskolcinensia – Tomus IV, Miskolc University – Bíbor Press, Miskolc, 2009. 30 Some authors derive the obligation for repression also from pacta sunt servanda. See above n. 26, p. 871.

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Réka Varga penal legislation31 nor did they give any guidance on the procedures themselves except for the requirement of fair trial guarantees.32 The Commentary is also mainly silent on this issue, noting only that legislation shall provide sanctions and it shall not be left to the judge to deal with these.33 Most probably the difficulties states might have in adopting proper legislation and ensuring effective procedures were not foreseen by the drafters of the Geneva Conventions. While many states seemingly complied with the obligations, actual efforts to prosecute such violations highlighted the difficulties arising in implementing such international provisions within domestic legislation. Hence, the word ‘effective’ received particular significance, although not specifically analyzed in the Commentary. Legislation merely adopted to demonstrate a state’s compliance with international law but not enabling effective penal procedures is not sufficient to meet obligations under the language of the Conventions and the Additional Protocols. Many states seem to reflect they are satisfied they have met their obligation under the Conventions and Protocol without addressing the practical impact and procedural challenges with enforcing the provisions in their own domestic courts. With respect to the obligation to prosecute crimes against humanity, Principles I and II of the Nuremberg Principles state that ‘[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment’ and ‘[t]he fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.’34 Even though no treaty-based obligation exists to punish crimes against humanity, legal literature widely accepts the existence of an obligation to prosecute perpetrators of crimes against humanity, while many contest the existence of a basis of universal jurisdiction for crimes against humanity in international law.35

31 See B. Gellér, A nemzetközi jog hatása a büntetőjogi felelősségre (Effects of international law on criminal responsibility), in: K. Bárd, B. Gellér, K Ligeti, É Margitán, I.A. Wiener (Eds.), Büntetőjog Általános Rész, KJK-KERSZÖV, Budapest, 2003, p. 302. 32 See common Art. 3 to the Geneva Conventions or Art. 75 of Additional Protocol I. 33 See above n. 20, p. 363. 34 Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950. Report of the International Law Commission covering its Second Session, 5 june – 29 July 1950, Document A/1316. 35 André da Rocha Ferreira, Cristieli Carvalho, Fernanda Graeff Machry, Pedro Barreto Vianna Rigon: The obligation to extradite or prosecute (aut dedere aut judicare), International Law Commission, UFRGS Model United Nations Journal, 2013, pp. 202-221, pp. 209 and 211, www.ufrgs.br/ufrgsmun/2013/wp-content/uploads/2013/10/The-obligation-to-extradite-or-prosecute-aut-dedere-aut-judicare.pdf (last visited 13 July 2015); Jan Wouters, The Obligation to Prosecute International Law Crimes, p. 8, https://www.law. kuleuven.be/iir/nl/onderzoek/opinies/obligationtoprosecute.pdf (last visited 13 July 2015).

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Finally, of interest related to the obligation of states to enforce the provisions of international humanitarian and international criminal law, the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity was adopted in 1968. The Convention states that statutes of limitations do not apply to war crimes as defined in the Nuremberg Charter, crimes against humanity as defined in the Nuremberg Charter and genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Convention specifically indicates that the application of this provision has retroactive effect36 and that states are bound to eliminate statue of limitations in their domestic laws.37 Each of the international legal instruments listed above were in force and applicable to the events of 1956 and remained in effect after that date. Further, the principles recognized by the Nuremberg Charter were endorsed by the 1946 UN General Assembly resolution and became customary law.38 Hungary ratified the Geneva Conventions in 1954,39 and the Convention on the Non-Applicability of Statute of Limitations in 1971,40 but due to the latter’s retroactive effect, it applies to the crimes perpetrated in 1956 and afterwards. Not only is prosecution of international crimes an international law obligation binding states, but many international organizations, such as the UN, have underlined its importance. The obligation not only to prosecute war crimes and crimes against humanity but also to cooperate in such prosecution has been expressed by the United Nations General Assembly, noting that refusal by States to co-operate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purpose and principles of the Charter of the United Nations and to generally recognized norms of international law.41 Similarly, the Inter-American Commission on Human Rights in its annual report concluded with respect to the activities of the Chilean National Commission on Truth and Reconciliation that 36 Art. I: ‘No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: […].’ 37 Art. IV: ‘The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.’ 38 Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal, General Assembly Res. 95 (I) New York, 11 December 1946. 39 Law nr. 32 of 1954. 40 Law nr. 1 of 1971. 41 Question of the punishment of war criminals and of persons who have committed crimes against humanity, General Assembly Res. 2840 (XXVI) of 18 December 1971.

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[t]he Government’s recognition of responsibility, its partial investigation of the facts and its subsequent payment of compensation are not enough, in themselves, to fulfil its obligations under the Convention. […] the State has the obligation to investigate all violations that have been committed within its jurisdiction, for the purpose of identifying the persons responsible, imposing appropriate punishment on them, and ensuring adequate reparations for the victims.42 The analysis above leads us to conclude that the international community undoubtedly decided after World War II to criminalize war crimes and crimes against humanity by the force of international law and to oblige states to prosecute them. This means that such acts are punishable irrespective of the existence of implementing domestic legislation. National justice systems are bound to prosecute these in the name of the international community, as such crimes are violating not only the state itself, but the whole international community.

9.4

International Crimes Applicable to the Case in Question

It is important to identify what acts committed by the communist regime could be regarded as international crimes and, for the purposes of war crimes, what is the applicable law. That analysis also requires an assessment of whether there was on and after 1956 an armed conflict, and, if so, what the nature of that armed conflict was. A non-exhaustive list of the acts that could be relevant in the present case in and after the 1956 events for a prosecution based on international law include, among others: volleyfires (firing in the demonstrating crowd without discrimination), persecution on political grounds after 1956 against persons who took part or were involved in the revolution, including trials lacking fair trial guarantees resulting in the imprisonment and execution of a large number of persons, torture and inhumane and degrading treatment, killing and forcible transfer. As for the applicable law, although the circumstances merit a detailed examination by historians and lawyers, it seems that with the beginning of the revolution on 23 October 1956, a non-international armed conflict existed within the terms of common Article 3 of

42 Annual Report of the Inter-American Commission on Human Rights 1996, Report nr. 36/96 of 15 October 1996, Para. 77.

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the Geneva Conventions.43 This conflict transformed into an international armed conflict44 (occupation) through the intervention of Soviet forces on 4 November 1956.45 The length of the occupation is again a matter requiring careful examination. According to one possible approach, the occupation lasted until active hostilities were carried out, most probably until 15 November 195646,47 while according to another possible approach, and supported by the present author, occupation lasted much longer, as the Hungarian population was still under the control of the occupying Soviet forces, and the Hungarian government was acting based on Soviet dictates: leaders were appointed with Soviet nomination and agreement and all actions of the Hungarian government were basically hand-steered by the Soviet government. According to this second line of argument, the occupation lasted as long as the control of the occupying forces can be identified. The UN General Assembly stated at more than one occasion that the Hungarian government was installed by the Soviet Union and was subordinated to it which testifies to this latter view.48 Grave breaches of the Geneva Conventions in international armed conflicts are committed between the belligerent parties, notably the states. Therefore any violation committed by Soviet forces against Hungarian protected persons – sick and wounded, civilians, etc. – could clearly become a grave breach. The question is not so obvious with respect to Hungarian perpetrators. Here two interpretations merit attention. According to the first one, with the intervention of the Soviet forces, two parallel kinds of armed conflict took place: an international armed conflict between the Soviet Union and Hungary, and a noninternational armed conflict within Hungary, between the government and the revolutionaries. Thus, if we look at the relation between the Hungarian government functionaries and the Hungarian victims, their relation is to be considered within the framework of a noninternational armed conflict, where no grave breaches regime existed, therefore no war crimes as international crimes could have been committed. Even in this case however, it 43 The ICRC called on all parties to collect and care for the wounded and sick. This was based on common Art. 3 of the Geneva Conventions. See I. Voneche Cardia, L’octobre hongrois: entre croix rouge et drapeau rouge, Burylant, Bruxelles, 1996. Reference is based on the Hungarian translation by L. Csejdy and Sz. Kovalik Deák, socio-typo, Budapest, 2006, p. 50. 44 F. Donáth, ‘Nagy Imre 1956 november 4-i rádiószózata és a Genfi Egyezmények’, pp. 150-151, www.polhist.hu/regi/multunk/letoltes/donathf.pdf (last visited 6 September 2015). 45 See T. V. Ádány, ‘Individual Criminal Liability for the Crimes Committed in 1956’, Miskolc Journal of International Law, Vol. 3 (2006) No. 3, pp. 46-55. 46 The Hungarian courts, based on guidance from the Supreme Court and the Constitutional Court took the position that an international armed conflict took place from 4 to 15 November 1956. See above n. 44, p. 151. 47 M. Róth, ‘Circus Juris Hungarici avagy igazságtétel magyar módra’, Kortárs online, www.kortarsonline.hu/2006/10/circus-juris-hungarici-avagy-igazsagtetel-magyar-modra/5900 (last visited 14 July 2015). 48 Report of the Special Committee on the Probblem of Hungary, General Assembly Official Records, Eleventh Session Supplement No. 18 (A/3592) New York, 1957, Paras. 78, 83, 84, http://mek.niif.hu/01200/ 01274/01274.pdf (last visited 15 July 2015).

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could be argued that after the Soviet invasion on 4 November, the Hungarian leadership was in fact carrying out acts pursuant to and under Soviet orders, therefore they acted on behalf of the Soviet government. In this light it could be theoretically argued that this results in making these perpetrators individually responsible for grave breaches in the context of an international armed conflict. Therefore responsibility of Hungarian government officials and other persons for acts carried out against Hungarian citizens could well be regarded under the grave breaches regime. According to the second view, the whole conflict became international. Under this view, all conduct is subject to review under the law applicable to international armed conflicts. This is the reasoning the Hungarian courts adopted in the above mentioned Salgótarján volley-fire case, where they found the actions of the Hungarian perpetrators to be grave breaches. All these questions require further examination from a historical and a legal perspective. However, for the purposes of the present article, it is necessary to consider both grave breaches of the 1949 Geneva Conventions and crimes against humanity when discussing the responsibility of perpetrators of core international crimes during and after the events of 1956.

9.5

Applicability of the Grave Breaches Regime and Crimes against Humanity in Hungarian Criminal Cases on Communist Crimes: Were Corresponding International Rules in Force?

The applicable rule concerning crimes against humanity to the events in and after 1956 is the definition in the Nuremberg Charter. Although Hungary is not a signatory to the Charter, the provisions of the Nuremberg Charter were definitely part of international customary law by 1956. The UN General Assembly endorsed the principles and rules of the Charter in a resolution adopted in 1946.49 While the Nuremberg Charter was, therefore, customary international law and the Hungarian Constitution considered customary international law a part of Hungarian legislation without the need for any transformation,50 given the obligatory nature of international customary law, Hungary was obliged to apply the notion of crimes against humanity as of 1990, when the political barriers of prosecution of communist crimes were lifted. Underlining this argument, the Hungarian Constitutional Court also stated that the

49 Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal, General Assembly Res. 95 (I) New York, 11 December 1946. 50 See Constitutional Court Dec. 53/1993, Para. III/a.

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international community is punishing war crimes and crimes against humanity on one hand through international tribunals, on the other hand through national domestic courts.51 One general argument against directly applying international customary law in domestic proceedings is the principle of legality, that is, the contents of customary law are often not exact, or it is not even clear what customary law is.52 While this may be true with respect to customary law that is recent and continuously developing, it does not seem to present a legitimate argument with respect to crimes against humanity, the contents of which are clear both from the Nuremberg Charter and from the Nuremberg Principles. Another problematic issue with respect to direct application of international crimes which have not been domesticated in national legislation is the lack of specific sanctions in the domestic criminal code. Notably, one could argue that the nulla poena sine lege principle is violated when the judge is applying elements of a crime defined in international law which are not included in domestic criminal legislation. Under this argument, while there could be a prosecution, no sanction is available in domestic criminal law. One theoretical solution could be to apply sanctions of the corresponding ordinary crime, such as the sanction for murder in case of attacks against civilian population.53 The Hungarian Constitutional Court dealt with compatibility of application of international law with legality principles as well. It stated that international law understood the nullum crimen sine lege principle in relation to itself and not to domestic law and consequently, argued the Court, referring to the International Covenant on Civil and Political Rights and the European Convention on Human Rights, prosecution of sui generis international crimes is legal under domestic law even if their notions and punishability is not part of national law.54 At the same time, many criminal lawyers in Hungary raised the issue of lack of sanctions in case of direct application of international crimes, arguing that such procedure would violate the nulla poena sine lege principle.55 However, the European Court of Human Rights stated in 2010 in Kononov v. Latvia56 that ‘where international law did not provide for a sanction for war crimes with sufficient clarity, a domestic tribunal could, having found an accused guilty, fix the punishment on the basis of domestic criminal law.’57

51 Constitutional Court Dec. 53/1993, Para. IV.2. 52 This question was discussed with respect to the Bouterse case in the Netherlands, see Comment of Harmen van der Wilt, Bouterse case, ILDC 80 (NL 2001), C5. 53 This is what happened in Hungary at the volley fire – cases, where the Hungarian courts applied the sanctions of the conventional crimes that corresponded to the international crime, without its ‘international’ content. 54 Constitutional Court Dec. 53/1993, Para. IV.4.a. 55 See B.J. Gellér, Nemzetközi Büntetőjog Magyarországon, Adalékok egy vitához, Tullius Kiadó, Budapest, 2009, pp. 58-60. 56 Kononov v. Latvia, Appl. No. 36376/04, Judgment of the Grand Chamber of 17 May 2010. 57 Ibid., Para. 212.

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9.6

Conclusions with Respect to the (In)action of the Hungarian Legal System

As a consequence of the modern paradigm of the relations between international and national law, international law enjoys primacy over domestic law. Thus, there is an obligation under international law to prosecute international crimes. That obligation is an absolute obligation on states. It follows from this statement that Hungary seems to have been in violation of common Article 1 and Articles 146 and 147 of Geneva Convention IV and the customary obligation to prosecute crimes against humanity by not prosecuting communist crimes which occurred in 1956 and thereafter. Since these crimes are crimes to be prosecuted ex officio, criminal investigations should have been initiated in the 1990s, after the fall of communism. Who is to blame is a complex question and probably the parallel inaction or rather not appropriate action of many authorities has produced this outcome. The legislature, on its own part, could have facilitated the process already in the 1990s by including crimes against humanity in the criminal code and by offering logistical support, resources and other support to the prosecutors and judges facing the difficult task of conducting criminal procedures based on international law. This effort by the legislature would have addressed the concerns prosecutors and judges expressed in the past years in avoiding the investigation and prosecution of these offences under international law. The prosecutors and judges could also have raised this issue in the 1990s and call for a comprehensive approach which results in an adequate legal and material background for successful prosecutions. The adequate – and international law-compliant – action would probably have been to initiate criminal proceedings in the 1990s ex officio, and, at the same time, to request additional resources from the state to support effective prosecution and sentencing. What becomes clear is that the successful conduct of such trials requires an integrated approach.

9.7

War Crimes Units

In order to revolutionize the attitude of prosecutors and judges with respect to the enforcement of international crimes, an integrated unified action is required by Hungarian national authorities. Effective trials of international crimes – both historically but also contemporary crimes – in other states can be attributed to the establishment of specialized units dealing with such proceedings. The appointment of a few persons with specialized experience or expertise to address the investigation and prosecution of such actions, and designation of specific courts and judges who would be responsible for ensuring the fair trial guarantees as well as with specific competence in the area of law enable successful implementation of the obligations of states to enforce the international obligations the

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state has undertaken. The actors in these institutions receive specialized training and additional resources for their unique and important task. An additional component of the integrated unified action required to achieve full compliance with Hungary’s international obligations – not speaking of communist crimes now – is to have an effective integration of these specialized courts within the immigration process. The effective detention of those alleged to be war criminals, as well as the identification of victims or witnesses often occurs through the immigration process, with individuals entering as immigrants, migrants or refugees. Accurate and timely identification of alleged perpetrators and their effective detention, as well as the accurate and timely identification of victims and witnesses and capture of their evidence, requires specialized knowledge. The judicial, prosecutorial, investigative and immigration units must be obliged to cooperate with each other. This requires a strategic plan from the state in order to allow for the cooperation of these and other authorities and agencies to carry out the specific task. A recent summary prepared by Human Rights Watch of activities and best practices of war crimes units of a number of selected countries shows that a) the setting up of war crimes units assists war crimes prosecutions, b) these units must cooperate with each other and c) ongoing training for all components of such units is inevitable.58 Many countries have such units in place that deal exclusively with international crimes: war crimes, crimes against humanity and genocide. The first war crimes units were set up with respect to investigation and prosecution of suspects with respect to Nazi crimes. Such

58 Human Rights Watch: The long arm of justice: Lessons from Specialized War Crimes Units in France, Germany and The Netherlands, 2014, https://www.ind.nl/organisatie/themas/1F/Documents/Asiel.pdf (last visited on 6 September 2015).

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Réka Varga units were established in Germany in 1958,59 in the US in 1979,60 in Canada in 1985,61 in Australia in 1987,62 in the UK in 199163 and in Poland in 1998.64 Special units set up in the investigation and prosecution authorities usually comprise of a couple of persons within the police and/or prosecution dealing exclusively with war crimes cases. In Denmark, such a unit is comprised of 17 persons (including both investigators and prosecutors) and is a part of the Danish Prosecution Service.65 In Belgium, the unit is comprised of one senior prosecutor and five police officers are dealing only with serious international crimes.66 In the Netherlands, 31 persons in the police67 and six persons in the prosecutor’s office68 deal exclusively with international crimes at the domestic level.69

59 The `Central Office of the State Justice Administration for the Investigation of National Socialist Crimes (Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen) www. zentrale-stelle.de/pb/,Lde/Startseite?ROOT=1193201 (last visited on 6 September 2015). 60 US Department of Justice Human Rights and Special Prosecutions Section, www.justice.gov/criminalhrsp/about-hrsp (last visited on 6 September 2015). 61 Canadian Department of Justice, War Crimes Program. In 1987, the Department of Justice Canada, the Royal Canadian Mounted Police and Citizenship and Immigration Canada were given specific mandates to take appropriate legal action against alleged Second World War crime suspects believed to be in Canada. In 1998, the Government expanded its war crimes initiative to modern (post-Second World War) conflicts, because there was no real distinction between the process and policy applicable to WWII and Modern War Crimes. S. www.justice.gc.ca/eng/cj-jp/wc-cdg/prog.html (last visited on 6 September 2015). As for the efforts of the Canadian government to prosecute core international crimes, see F. Lafontaine, ‘The unbearable lightness of international obligations: when and how to exercise jurisdiction under Canada’s crimes against humaniy and war crimes act’, in Revue québécoise de droit international, 23.2 (2010), http://rs.sqdi.org/volumes/23_2-Lafontaine.pdf (last visited 13 July 2015). 62 D. A Blumenthal, T.L.H. McCormack (Eds.): The Legacy of Nuremberg: Civilising influence or institutionalized Vengeance? Martinus Nijhoff Publishers, Leiden, 2008. See review by B. Batros, Journal of International Criminal Justice, 2009/7/2, pp. 440-442. 63 See War Crimes Act 1991. 64 The Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation (IPN). See http://ipn.gov.pl/en/brief-history/brief-history (last visited on 6 September 2015). 65 SICO (Special International Crimes Office), since its establishment in 2002, has opened investigations in 237 cases related to crimes that have taken place in around 30 countries; out of these, 172 cases have been concluded until 2009. S. www.sico.ankl.dk/page34.aspx (last visited on 18 January 2012). The majority of the cases are related to the Middle East, followed by the former Yugoslavia. S. 2009 Annual Report. Annual Report 2008 www.anklagemyndigheden.dk/Documents/arkiv/SICO-2008-Summary-in-English.pdf (last visited on 6 September 2015), Annual Report 2009 – Summary in English available at: www.sico.ankl. dk/media/SICO_2009_-_Summary_in_English.pdf (last visited on 18 January 2012). Later reports could not be reached online. 66 See Strategies for the Effective Investigation and Prosecution of Serious International Crimes: The Practice of Specialised War Crimes Units, Report of REDRESS-FIDH, December 2010, summary on p. 31. These dates were current in 2010, no further update is available online. 67 Such a high number of persons assigned only to international crimes may be explained by the fact that the Netherlands is a specially affected state due to its favorable immigration policy and its determination to carry out effective war crimes procedures. 68 It should be noted that this excludes the several international or internationalized courts and the United Nations and international staff which supports those efforts. 69 Numbers actual as of 2014. See The Long Arm of Justice; Lessons from Specialized War Crimes Unit sin France, Germany and the Netherlands, Human Rights Watch, 2014, pp. 37-38.

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The specialized unit in the prosecutor’s office became operational in 2003. Until 2002, not one single prosecution was initiated; since the unit became operational, the office took eight cases to trial, resulting in six convictions, one acquittal and one retrial.70 The Netherlands has also set up an International Crimes Taskforce in 2012 to enhance cooperation and tackle remaining challenges.71 In Germany, two prosecutors are assigned permanently and four prosecutors temporarily for a period of approximately two years; from the police, ten officers are active in international crimes cases.72 Investigations into such crimes can often be lengthy, however, the Danish unit’s demonstrated aim is to be able to determine within 12 months whether there is sufficient evidence to prosecute or else investigation should be halted. In the twelve-month period in 2009, 22 cases have been decided and this goal was met in 16 cases.73 The result of the overall work of specialized units is nevertheless striking: out of 24 convictions on account of serious international crimes, 18 involved investigation and prosecution undertaken by specialized units.74 The International Federation for Human Rights (FIDH) and REDRESS in 2010, and Human Rights Watch – all these NGOs are dedicated to protection of human rights, ending impunity of perpetrators of the most heinous offences – in 2014 have undertaken projects to map the work of such existing units and to assess their usefulness; the Human Rights Watch concentrating on universal jurisdiction cases. The conclusion of FIDH/REDRESS is that ‘it will be difficult, if not impossible, to successfully prosecute a suspect for serious international crimes without special arrangements’,75 while the Human Rights Watch report concludes that [i]n addition to having motivated and experienced staff and specifically earmarked budgets, the decision to create specialized war crimes units often reflects heightened political will within the countries in question to fight impunity for the gravest international crimes.76 Indeed, numbers show that the number of investigations, prosecutions and eventual convictions are much higher in states having a specialized unit and cases are concluded within much shorter time if units exist. In Finland, for instance, ad hoc resources were provided for an ongoing case, which resulted in investigation and prosecution being concluded within three years, and the trial itself was concluded within 10 months. The case raised 70 71 72 73

See above n. 69, p. 38. See above n. 69, p. 32. See above n. 66, pp. 17-18. See www.sico.ankl.dk/media/SICO_2009_-_Summary_in_English.pdf (last visited on 18 January 2012). No further update is available online. 74 See above n. 66, p. 18. 75 Ibid., p. 21. 76 See above n. 69, p. 3.

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Réka Varga huge media attention.77 Finland’s Minister of Justice, Tuija Brax, said in an interview that the Nordic country was both capable and ready to host the trial. ‘We have specialists and lawyers working in international fields and expertise in international criminal cases […] It’s a global world, and we’re not an isolated island.’78 In most countries these time-frames would be highly praised even for an average domestic case, let alone for a case involving an international crime. It goes therefore without question that the setting up of units dealing with serious international crimes requires relatively little effort and results in huge advantages. It is well known that cases prosecuting war crimes and grave breaches tend to require more time due to the complex nature of such proceedings. The complications include the international locations of victims and witnesses, the challenges of obtaining their evidence, and of providing them with a secure environment in which to deliver their evidence, as well as ensuring the fundamental protections for those accused of such serious crimes. By way of expertise, judges hearing such cases may require evidence to be presented which addresses the history, as well as the military and psychological components of the case. The expert witnesses may include other areas which relate to the unique nature of these cases. The prosecutors and judges may have to consider questions of legality when it comes to the joint application of international and domestic law, the legality of application of international law and customary international law in the absence of domestication, as well as the need to apply sanctions of ordinary crimes to international crimes Thus, successful enforcement of the state’s international obligations requires a different approach than that which is applied in a standard domestic prosecution. International law and European law include more and more direct obligations on internal law and directly on individuals. The prosecutor and judge may no longer look exclusively into the domestic criminal code. Even if international crimes are implemented in the domestic code, the origin of such domestic legislation is found in international law including written international treaties as well as sometimes non-codified customary international law. Whatever solution Hungary chooses, a strategic step is required to change the situation. It requires a recommitment of the government to its obligations under international law, and a commitment to change fundamentally the approach being taken by the courts and the prosecutor’s office in implementing Hungary’s international obligations in and through the domestic court system. The solution would include the appointment of personnel in 77 Around 100 witnesses had been heard in the pre-trial phase, most of them abroad; 68 witnesses were heard by the trial court. Only one of the 68 witnesses called during the trial lived in Finland. The court proceedings included court sessions in Kigali and Dar es Salaam to hear witnesses, and a site visit in Nyakizu, Rwanda, where the crimes were committed. 78 See Prosecutor v. Francois Bazaramba (R 09/404), judgment of June 2011. See http://publicinternationallawandpolicygroup.org/wp-content/uploads/2011/04/wcpw_vol04issue12.html#rw1 (last visited on 15 September 2015) and Press Release of the District Court of ITÄ-UUSIMAA of 11 June 2010, www.adhgeneva.ch/RULAC/pdf_state/Finland-decision.pdf (last visited on 15 September 2015).

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the investigative, prosecution and court systems who receive specialized training in international criminal law, international human rights law and international humanitarian law. The solution requires additional resources for the research that is necessary, to include translation of international law materials for use in domestic courts, as well as other needed resources.

9.8

Summary: Is This Only Hungary’s Own Business?

Hungarian authorities have thus far seemed to treat the question of prosecution of communist crimes committed in Hungary solely as a matter of concern to its own state. However, like the prosecution of Nazi war crimes, communist crimes that amount to international crimes have not only violated the victims themselves or the interests of Hungary, but have violated the interests of the international community as a whole. Thus Hungary is obliged, in the name of the international community, to investigate and prosecute these crimes. This is precisely why the notion of international crimes was formed: to express the will of the international community to stop such conduct, making such actions criminal actions by way of international law, irrespective of the decisions of the national legislators. When there is no international tribunal proceeding in a case, trials of persons charged with international crimes must take place in national courts. These courts may be regarded, for this purpose, as organs of the international community applying international criminal law and bringing it home to the individual, who is directly subjected to international obligations […].79 The uneasiness of prosecutors and judges to directly apply international law is not only a Hungarian phenomenon: it is common in other states as well, and the results vary. Some domestic courts have reached back directly to international law,80 others were hesitant to

79 Y. Dinstein, ‘International Criminal Law’, in: Israel Yearbook on Human Rights 5/55, 1975, p. 73. 80 See Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, H (3). In this case, the case of deportation of Hutu political leader Léon Mugesera from Canada on grounds of incitement to commit genocide, the Canadian courts reached back to international law when interpreting elements of crimes against humanity. See R. Varga: Challenges of domestic prosecution of war crimes with special attention to criminal justice guarantees, Pázmány Press, Budapest, 2013, p. 90.

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Réka Varga do so.81,82 In order to find a solution, first we need to identify that there is a problem. Then we need to discuss alternative solutions and ways forward. Hungary thus needs an integrated approach not only for the prosecution of communist crimes, but to ensure the prosecution of international crimes in general. The idea behind Lex Biszku, notably to assist the prosecutors and judges by implementing rules related to international crimes should be extended to all international crimes and to all the rules around their prosecution, which practically means that the international rules on which crimes to prosecute and rules defined in international on how this should be done – non-application of statute of limitations, universal jurisdiction, and so on – should be implemented in domestic law. Prosecutors and judges would nonetheless be obliged to also apply non-codified international customary rules as well. Furthermore, the establishment of units or appointment of persons in each authority is inevitable to deal with the situation. Finally, the government should stand ready to allocate funds and ensure adequate background for the prosecutors and judges to carry out their task in compliance with international law. Prosecution and punishment of such crimes serves as retribution and expression of the moral condemnation of society, which should proclaim and enforce its condemnation of abuses in order to affirm the rule of law and fundamental societal norms.83 Thus, it sends the wrong message when a state, through all its authorities, including the legislature, the prosecutors and judges, does not do everything feasible to ensure the prosecution of international crimes, within the framework of fair trial guarantees. Therefore the Biszku-case, the question of prosecution of communist crimes and generally the issue of prosecution of international crimes cannot be considered solely through the eyes of Hungarian criminal law, but it requires the understanding of the international nature of such crimes and the violation these cause to the international community as a whole. This is not just Hungary’s business.

81 Public Prosecutor v. Van Anraat, LJN: AX6406, Rechtbank ‘s-Gravenhage, 09/751003-04 (District Court of the Hague) and LJN: BG4822, Hoge Raad, 07/10742 (Court of Appeal) (exclusive application of domestic law). In this case, the Dutch courts had differing opinions: while the District Court took the ICTY case law as a reference for the assessment of mens rea, the Court of Appeal took the opinion that although there should be a preference for the application of international law, if the case law of international tribunals is not clear, Dutch national law should be applied exclusively. See above n. 10, p. 90. 82 Supreme Court of the Netherlands, nr. HR 00749/01 CW 2323 LJN: AB1471, NJ 2002, 559. The Dutch Supreme Court in the Bouterse case did not accept reliance on customary law if it collided with national law. 83 D. Shelton, Remedies in International Human Rights Law, Second Edition, Oxford University Press, Oxford/New York, 2005, p. 396.

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World War I and the Appearance of Aerial Warfare: A Lacuna in the Texture of International Law?

Zsuzsanna Csapó*

10.1

Introduction

One hundred years passed away since the beginning of the World War I. This centenary provides a chance to rethink or think over numerous debates, draw conclusions and reveal coherences in order to – as precisely as possible – map the none or not entirely unravelled affairs, actions and prime movers. Besides the representatives of numerous professions – historians, military historians, theorists, tutors and practical experts of military sciences, today’s war correspondents, political scientists, sociologists, statisticians etc. – an international lawyer is forced to stop to engrossment by this centenary as well. Since the first great world conflagration resulted in drastic changes in several areas of international law. The interpretation of the ius ad bellum has been get into a different approach, the need for the creation of a potent (than effectively condemned to inefficiency) collective security system has been conceived, the redrawn world map brought up thousands of aspects of state succession, there has been an emphasis laid on the international protection of minority rights, the handling of the floods of refugees urged international actions, and we could extendedly count the changes launched in the scope of international law which were generated by the global cataclysm started in 1914. Evidently the ‘Great War’ fundamentally affected the scope of the classic subject of international law, the ius in bello as well. For such new challenges as the mass presence of the prisoners of war, the appearance of chemical warfare or all the innovations of total war there was of course a great need to properly react. But it seemed that the adequate answer was missing on the following topic: seemingly the appearance of the aerial warfare has

*

PhD, senior lecturer, National University of Public Service, Faculty of International and European Studies, Department of International Law, Address: H-1083 Budapest, Ludovika tér 2. E-mail: [email protected]. The paper has been published in Hungarian in Katonai Jogi és Hadijogi Szemle (Review for Military Law and the Law of War, Periodical of the Hungarian Society for Military Law and the Law of War, Vol. 2, No. 2, 2014, pp. 5-32.) and in 2014 won first prize in the ‘Inter arma silent leges’ competition organised by the Society.

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been untouched by the texture of international law, although it cannot be questioned that the emergence of the command of the air caused profound changes in modern warfare. As Giulio Douhet few years later after the end of World War I already laid down: ‘In the wars to come the decisive field of action will be the aerial field.’1 He also firmly declared that: ‘To conquer the command of the air means victory; to be beaten in the air means defeat.’2 It is a real debate if could really talk about the gap of international legal regime concerning aerial warfare or just on the contrary, the available system of laws provided an adequate and detailed base then and today in order to adjudge the legality of the conflicts fought by all sorts of military services.

10.2

10.2.1

The Conquest of the Third Theatre of War

The Appearance of the ‘Military Birds’

Battles have been fought for thousands of years on land and water as well. However the possibility for aerial warfare has only been interpreted on the level of fantasy as an impossible, inaccessible negative utopia for ages.3 Then due to technological development mankind has conquered the airspace as well, which acquisition just immediately started to serve warfare (and even the needs of the military industry generated further the as fast as possible aerial developments). According to the memorials the first successful air raid has been carried out in August, 18494 when the Austrian army tried to break the defence of Venice, which was impossible to approach due to the lagoons, with air-balloons equipped with explosives5 (today we would use the word UAV, unmanned aerial vehicle). However, the technique which was expelled to the eccentric wind courses could not totally come up to the expectations, so

1 2 3

4

5

G. Douhet, The Command of the Air: Book Three. Recapitulation, Translated by: D. Ferrari. New Imprint by Air Force History and Museums Program, Washington, D.C. 1998. Original work published 1929, p. 251. Douhet 1998, Book One. The Command of the Air, Original work published 1921, p. 28. See for instance the novel ‘Robur the Conqueror’ of Jules Verne published in 1886, or H. G. Wells’s 1908 ‘The War in the Air’ science fiction. Quoted by: O. Stone & P. Kuznick, The Untold History of the United States, Simon and Schuster, 2012, p. 23. Moreover balloons were first used to military purposes even in 1794 introduced by the French revolutionary forces. In the beginning these aerial devices were used to intelligence, observation, forwarding messages and transmitting signals. W. Lin, ‘Aeronautical Law in Time of War’, Journal of Air Law, Vol. 3. 1932, p. 79. Y. Tanaka & M.B. Young (Eds.), Bombing Civilians: A Twentieth-Century History. The New Press, 2013; T. Vanderbilt, Survival City: Adventures among the Ruins of Atomic America, University of Chicago Press, 2010, p. 53; J.D. Murphy, Military Aircraft, Origins to 1918: An Illustrated History of their Impact, ABCCLIO, 2005, p. 161; Stone & Kuznick 2012, p. 23.

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the development of aerial warfare has not yet been initiated up till the appearance of the first (manoeuverable) airships and airplanes. However, the appearance and spread of the ‘military birds’6 has not claimed a long time. First they were taken in action in 1911 in the Italian-Turkish and then in the 19121913 Balkan wars.7 Few years later in World War I they have been applied in large quantities.

10.2.2

‘Will They Have Any Role and What Kind of, Who Would Be Able to Answer This Question Now?’

In August, 1914 the journalist of the Pesti Napló was gazing still on this question, namely the possible role of the military zeppelins and airplanes in modern warfare. In the first days of the world war he was writing the following lines:8 It is for sure that compared to the past war maybe the greatest change will be the possibilities of airborne battle. Through thousands of years mankind knew only warfare on land and water. Now the third element, the air has been introduced to the fields of war. […] We have to resign ourselves to the idea that modern warfare became from the combat of two elements to the fight of three elements. And while before 1914 ‘there was no remarkable sign for airplanes or fighter pilots to decisively interfere to combat fortune’,9 in World War I aviation science became highly important. Marshal Ferdinand Foch – the French general later becoming the commanderin-chief of the Entente forces – made a huge mistake when in 1911 he labelled airplanes as only engaging sports equipment or toys and at this time he was not considering them to military purposes as worthwhile factors.10

6

Plume, ‘Három elem harca’ (i.e. ‘Fight of Three Elements’), Pesti Napló, Vol. 65, No. 184, Budapest, 4 August 1914, p. 5. 7 ‘Interview with François Bugnion: 150 Years of Humanitarian Action: First World War’, 25 March 2014. www.icrc.org/eng/resources/documents/audiovisuals/video/2014/150-years-ww1-video-interview.htm (last visited Aug. 7, 2014). 8 Plume 1914, p. 5. 9 Id. 10 J.G. Gómez, ‘The Law of Air Warfare’, International Review of the Red Cross, Vol. 38, No. 323, 1998, www.icrc.org/eng/resources/documents/article/other/57jpcl.htm (last visited Aug. 20, 2014). It is also interesting to note that, whilst László Buza in the first sentence of his study published in 1914 stated that ‘airships and airplanes play a particularly important role in modern warfare’, as regards specifically the significance of the fighter aircrafts he still concluded that ‘the experience of the Tripolitanian War shows however that bombs dropped by airplanes have rather only moral effect.’ L. Buza, ’A repülőgépek és léghajók nemzetközi jogi helyzete a háborúban’ (i.e. ‘The Status of Airplanes and Airships under International Law in Time of War’), Jogtudományi Közlöny, Vol. 49, No. 45, Budapest, 6 November 1914, p. 453.

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However the evolving air forces soon gave evidence of their real power as well as their vital importance, and so they were formed with lightning speed to a separate military service. While in the beginning the functions of the aircrafts were reconnaissance and surveillance operations at the battles, soon they became a much more active player of warfare and so they intercepted the sky as bombers contributing to the military successes with their devastating power. Shortly it became a fact: ‘Man can fight above our head as well and in the times of war it is also good to sound the sky whether any suspicious enemy experiment is approaching.’11 Aviation became a key segment of war industry which soon started to produce revolutionary developments: by 1918 instead of the sluggish, powerless and vulnerable machines from 1914 much stronger airplanes were put in operation which could fly much higher and much further with greater bomb load as well.12 As Georg Shwarzenberg said: now irrevocably ‘scientific “progress” has transformed two-dimensional into threedimensional war.’13

10.3

International Law Applicable to Aerial Warfare

However, the appearance of the new military service was not followed by the special regime of international norms, nor directly after the World War I, neither later. What could be, what can be the reason for all this? We can talk about a loophole or, just on the contrary, the creation of the particular legislation was simply redundant?

10.3.1

The Hague Peace Conferences of 1899-1907

On the peace congresses organized in The Hague in the turn of the 19th-20th centuries, where slightly oppositely to the denomination of the meetings14 the majority of the adopted treaties recorded the rules of warfare, during the delineation of the conventions laying down the basics of the ius in bello the differentiation by military services led the delegates. Namely distinct agreements were born regarding the laws and customs of war on land, and separate conventions concluded also the rules concerning naval war. Implicitly at this time the (subsequent) third military service could not even be mentioned (do not forget

11 Plume 1914, p. 5. 12 Murphy 2005, p. 86. 13 G. Schwarzenberg, ‘The Law of Air Warfare and the Trend Towards Total War’, The American University Law Review, Vol. 8, No. 1, 1959, p. 1. 14 The first Hague Peace Conference of 1899 was congregated by the initiation of the Russian Tsar Nicholas II ‘with the object of seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.’ Final Act of the International Peace Conference. The Hague, 29 July 1899. www.icrc.org/ihl/INTRO/145?OpenDocument (last visited Aug. 20, 2014).

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that the Wright brothers flew to the air in 1903 with the first ever airplane of history) so concerning military flight an autonomous treaty has not been conceived in The Hague yet. However, the embryo of the possible regulation of aerial warfare already appears here. Namely both in 1899 and in 1907 declarations were made concerning ‘the prohibition of the discharge of projectiles and explosives from balloons.’15 While the first declaration only regulated this moratorium to a 5 year period of time, the later declaration already lost its provisional characteristics, although notwithstanding its aim. Namely in the plans it appeared that the declaration will only remain in force until the next, that is the third Conference at The Hague. Nevertheless the organization of this congress was not taken place. Accordingly this latter declaration is pro forma in force, which for a moment can urge us to think it over. Sith the contracting powers assumed with the approval of this document to prohibit (until the sealing of the Third Hague Peace Conference) ‘the discharge of projectiles and explosives from balloons or by other new (!) methods of a similar nature.’ And certainly if this commitment is in force, after it every aerial attack seems to be opposite to it. We should not forget, however, that in The Hague the si omnes (‘if everybody’) clause was still functioning, so this undertaking obliged in principle only the parties when an armed conflict has been broken out between them, and the burden of the obligation immediately slid away as soon as other, non-contracting state became a belligerent as well. In the light of all this it is worth to lay down that the number of the member states of the declaration realized only 20 and among the great powers only the USA and Great Britain ratified the agreement.16 And these provisions surely cannot be regarded as customary international law (on the contrary to several other Hague rules).17 On the apropos of the conferences we should also mention that while the Hague Convention II of 1899 with respect to the laws and customs of war on land – more exactly its annexed Regulations – disposed only as ‘the attack or bombardment of towns, villages, habitations or buildings which are not defended is prohibited’, the same Article 25 of the Regulations annexed to the Hague Convention IV of 1907 had an interlining as well: attacking and bombing ‘by whatever means’ is prohibited. Supposedly (although arguable) this amendment has been made already in order to cover the attacks coming from the air.18 15 1899 Hague Declaration (IV.1) to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of Similar Nature, 26 Martens Nouveau Recueil (ser. 2) 994. 1907 Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, 3 Martens Nouveau Recueil (ser. 3) 745. 16 States parties: Belgium, Bolivia, Brazil, China, El Salvador, Ethiopia, Fiji, Finland, Haiti, Liberia, Luxembourg, the Netherlands, Nicaragua, Norway, Panama, Portugal, Switzerland, Thailand, United Kingdom, United States of America. www.icrc.org/ihl/INTRO/245?OpenDocument (last visited Aug. 20, 2014). 17 R. Bierzanek, 1923 Hague Rules. Commentary, in N. Ronzitti (Ed.), The Law of Naval Warfare. A Collection of Agreements and Documents with Commentaries, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1988, pp. 396-397. 18 D. Schindler & J. Toman, The Laws of Armed Conflicts, Martinus Nijhoff Publisher, Dordrecht, 1988, p. 201.

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The creation of a comprehensive separate special treaty on aerial warfare however, this time could only emerge as an absurd idea far away from reality in The Hague.

10.3.2

The Geneva Conventions Adopted after World War I

After in World War I it has been proved that – as Paul von Hindenburg said ‘without airmen, no Tannenberg’19 so in other words – without airplanes modern warfare is unimaginable, it has also been raised that after the world conflagration there would be a need to reconsider the regulatory framework. As a consequence of the starting up of the erosion20 of the ius ad bellum than its final outlawry,21 from the Hague Conventions the emphasis was put on the further development of the Law of Geneva, i.e. the international humanitarian law focuses on the protection of victims of armed conflicts. However, following World War I, none of the agreements (1929, 1949, 1977, 2005) revising and replacing the earlier two Geneva Conventions, so the treaties of 1864 and 1907, paid any special attention on the particular regulation of aerial warfare. The previous thematic division – which was followed by the Hague Conventions and which was differentiating based on which battleground the conflict was operating, so on land, at sea or subsequently in the air – was followed by another kind of logic. The Geneva Conventions were already concentrating on the victims or potential victims of the armed conflicts (being fought anywhere). They were already designed to protect a) wounded, sick and shipwrecked soldiers; b) prisoners of war; c) and the civilian population.22 Although it is true that in 1949 a little bit of the Hague thematic approach seemed to be reflected: since related to the wounded and sick combatants a separate agreement (First Geneva Convention) was made in case of armed forces in the field and a separate treaty (Second Geneva Convention) to the armed forces at sea. So in point of fact the latter treaty replaced the Hague Convention X – Convention for the Adaptation to Maritime Warfare

19 The successful outcome of the battle of Tannenberg was considered by Hindenburg due to the effective aerial reconnaisance. I. Német, ‘Galamb, Zeppelin és a Vörös Báró: A német légi hadviselés’ (i.e. ‘Dove, Zeppelin and the Red Baron: The German Aerial Warfare’), Rubicon, Nos. 4-5, 2014; S. Cox & P. Gray (Eds.), Air Power History. Turning Points from Kitty Hawk to Kosovo, Routledge, 2013, p. 94. 20 1907 Drago-Porter Convention, 1919 Covenant of the League of Nations. 21 1928 Briand-Kellogg Pact, 1945 Charter of the United Nations. 22 1929 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 118 LNTS 303. 1929 Geneva Convention (II) relative to the Treatment of Prisoners of War. 118 LNTS 343. 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31. 1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War, 75 UNTS 135. 1949 Geneva Convention (IV) relative to the Protection on Civilian Persons in Time of War, 75 UNTS 287.

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of the Principles of the Geneva Convention – of 1907. Regarding to the air forces, however, the need for special regulation did not emerge. And in 1977 the two additional protocols relating to the protection of victims of international and non-international armed conflicts totally left behind the differentiation between the different types of military services. 10.3.2.1

Special Rules Concerning Aerial Warfare in the Geneva Conventions of 1949 Having the horrible experiences in possession of the two world wars in 1949 the adopted four conventions on humanitarian law is containing some explicit references to aircrafts and aerial bombardment, but these on the one hand, taking into consideration the ratio, appear only in a minimal quantity in the extensive texts of the norms, and on the other hand looking at their content in point of fact cannot be estimated as such provisions specifically serving the aim of unique regulation of aerial warfare. Namely, what these allusions exactly refer to?23 a. on the one hand on account of the members of the aircraft crews it becomes clarified which cases can be considered as combatants and so whether they are entitled to the special rights and privileges or not; b. on the other hand through several paragraphs the treaties pay attention on the medical aircrafts, detailing their rights and duties (we have to mention that this was already carried out by the 1929 convention as well);24 c. and the treaties considered it to be important to call upon the medical units and establishments and internment camps to be fixed by the parties to the conflict with a distinctive emblem which can be seen from a certain distance even for the air forces (its roots can also be seen in 1929);25 d. again the category of the air vehicles emerges as well, but only in relation to the obligations of the neutral states; e. finally in relation with the prisoners of war and the internees the picture of aerial warfare turns up again since in Geneva they laid down that for this personnel it should be guaranteed as well that hiding from the aerial bombardments they should be able to escape to shelters.26 23 1949 Geneva Convention I. Arts. 13, 36-37, 42; 1949 Geneva Convention II. Arts. 13, 15, 39-40, 43; 1949 Geneva Convention III. Arts. 4, 23; 1949 Geneva Convention IV. Arts. 18, 22, 83, 88, 95. 24 1929 Geneva Convention (I), Art. 18. 25 Id., Art. 22. 26 Considering the combatants in captivity Art. 1 of the 1929 second treaty on the treatment of prisoners of war declared that its regulations should be applied both to persons captured in conflicts on land and ‘to all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations of maritime or aerial war.’ However for this latter category the treaty affixed that: ‘Subject to such exceptions (derogations) as the conditions of such capture render inevitable. Nevertheless these exceptions

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We can see that it is not out of the question that the Geneva Conventions would be paying special attention on the special regulation of aerial warfare. The paragraphs hiding within their provisions related to aircrafts, air-raid alarms and aerial bombardments are fitted to the general pattern, they show no specific content. 10.3.2.2 Special Rules Concerning Aerial Warfare in the Protocols of 1977 The upper mentioned statement based on the Geneva Conventions of 1949 totally comes through concerning the additional protocols as well. Even in 1977 the participants of the Geneva Conventions have not thought so that the regulation of the aerial warfare would even need a particular convention, or within the finally created conventions – and as we saw differentiating between the international and non-international conflicts (and not by the type of military services) – it would be worth laying special emphasis on battles fought in the air. The second additional protocol totally ignores this topic. The first protocol pays attention on the role of the airspace during armed conflict but in point of fact almost only in terms of protection of the medical aircrafts.27 Apart from these the relevant provisions are:28 a. the protocol deals with the treatment of the persons parachuting from an aircraft in distress and of the airborne troops;29 b. the treaty decidedly in terms of the military operations in the air and at the sea repeats the commitments of the parties to the conflict to take reasonable precautions in order to have as minor civilian damage as possible (so here, as it can be seen, after the

shall not infringe the fundamental principles of the present Convention; they shall cease from the moment when the captured persons shall have reached a prisoners of war camp.’ What should be and what should justify these exceptions the treaty keeps the phrasing undiscussed. 27 1977 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, Arts. 24-31, and also Ann. I. of Protocol I. Arts. 6-14. (see also Art. 5). 28 1977 Protocol I. Arts. 42, 57. and 49. 29 On the centenary of World War I we should commemorate on the comradeship, a kind of brotherly alliance and chivalry which characterized the members of the air forces of the belligerents during the ‘Great War’ and about which the commentary of the 1977 protocols states: the members of the crew of the shot hostile airplanes were not welcomed at the landing with drift of bullets but with salutation and if they were wounded their attackers wished a quick recovery for their ‘comrades’ and if they died their enemies paid tribute with flowers to their memory. Y. Sandoz, C. Swinarski & B. Zimmermann (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Martinus Nijhoff Publishers, Geneva, 1987, p. 494. As far as the notion of ‘fairness’ or ‘fair play’ is concerned, the principle of chivalry together with the principles of military necessity and humanity must be the fundamental cornerstones of the law of armed conflict still today. M.S. McDougal & F.P. Feliciano, The International Law of War: Transnational Coercion and World Public Order, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1994, pp. 521-522; T. Gill, Chivalry: A Principle of the Law of Armed Conflict? in N. Matthee et al. (Eds.), Armed Conflict and International Law: In Search of the Human Face, Asser Press, The Hague, 2013, pp. 44, 46.

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securing of the general rules, the drafters of the treaty considered it to be important to make special provisions about the aerial aspects – handling it together with sea warfare – without, however, declaring peculiar obligations); c. finally we have to stress that the section summarizing the rules concerning general protection against effects of hostilities of the protocol starts with this: The provisions of this Section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air. So this latter paragraph would provide priority to special norms. The commentary annexed to the protocol, however, notes that in the field of aerial warfare there is no precise written legislation available, only some blurred customary norms can serve as a base. According to the commentary the only codified rule can be just found in the protocol, namely the upper mentioned provision about the ones escaping with parachutes.30

10.3.3

The Initiative of the Red Cross

Turning back to the era of World War I, the Red Cross, facing with the increasing extension and intensity of aerial warfare, during the ‘Great War’ undertook the task for regularizing this topic. The ICRC planned to appeal to the participants of the conflict against the aerial bombardments. But at this time the countenance against the chemical weapons constituted priority31 and lastly the war has ended without the International Committee of the Red Cross would have been able to contribute officially in the subject of aerial warfare. Finally it was dealt with for the first time during the Spanish Civil War and the Sino-Japanese War.32 So this topic was not moved from the agenda of the organization. The Red Cross in the first general disarmament conference – organized within the framework of the League of Nations – in 1932 went as far as to initiate the acceptance of the total ban of aerial

30 Sandoz, Swinarski & Zimmermann 1987, p. 606. 31 In 1918 the Red Cross called upon the parties to the conflict to immediately discontinue the use of poisonous gases as weapons. However at that time this appeal was falling on deaf ears so during the battles these devastating instruments were used all along. But we cannot consider completely useless this action of the ICRC: in 1925 the Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare could be adopted among others as a result of their intense intervention. Interview with François Bugnion 2014. 32 Id.

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10.3.4

The 1923 ‘Hague Rules of Aerial Warfare’

Nevertheless, we can find another remarkable enterprise in this age. Namely, just shortly after the termination of World War I there was an attempt to the codification of the rules of aerial warfare. The 1921-22 Washington Disarmament Conference mandated a committee of the deputies of six states – France, Italy, Japan, the Netherlands, the United Kingdom and the United States – with the task to identify the rules. By 1923 the ‘Commission of Jurists’ framed up a draft convention.34 Finally the ‘Hague Rules of Aerial Warfare’,35 however, never became a legally binding document. The proposal of the committee neither formed even a separate treaty, nor the idea of the US was realized according to which from the draft the supplement of the Paris Convention of 1919 on Aerial Navigation could have been created.36 What was the reason for the failing of the plans? According to Remigiusz Bierzanek, on the one hand there was no will from the point of the governments to undertake legal obligations, having seen the possible role of aerial warfare in the following wars as experiencing the fast development of the occupation of airspace and the technology for the occupation from the airspace. On the other hand the opinion appeared to be general according to which the codification of the rules regarding air wars is redundant, since as a matter of fact the norms are existing, only the available rules concerning land warfare and naval warfare should be applied appropriately in the case of the air forces as well.37

33 P. Spoerri, From the 1907 Hague Conventions to the Additional Protocols of 1977 and beyond. Historical Evolution of the Law on the Conduct of Hostilities, in G.L. Beruto (Ed.), The Conduct of Hostilities. Revisiting the Law of Armed Conflict 100 Years after the 1907 Hague Conventions and 30 Years after the 1977 Additional Protocols, International Institute of Humanitarian Law, Sanremo, 2007, p. 37. ‘Atomic Weapons and NonDirected Missiles: ICRC Statement, 1950’, International Review of the Red Cross, Supplement, Vol. III, No. 4, 1950, www.icrc.org/eng/resources/documents/misc/5kylur.htm (last visited Aug. 29, 2014). 34 The jurists usually having idealistic notions were also accompanied by technical advisers (military professionals) balancing them with their pragmatism. R.H. Wyman, ‘The First Rules of Air Warfare’, Air University Review, March-April 1984, www.airpower.maxwell.af.mil/airchronicles/aureview/1984/mar-apr/wyman.html (last visited Aug. 27, 2014). 35 1923 Hague Rules of Aerial Warfare, reprinted in AJIL, Vol. 17, No. 4, 1923, Supplement, p. 245. 36 Art. 38 of the 1919 Paris Treaty expressly lays down that at the time of war the freedom of action of the contracting parties – being either belligerents or neutral states – is not limited by the regulations of the treaty. Bierzanek 1988, pp. 396, 398. 37 Id., p. 402. See, for instance, the feasible applicability of the provisions regarding attacks against undefended towns of the Hague Convention IX of 1907 (concerning bombardment by naval forces in time of war) to strategic bombing during World War I, which after the first German Zeppelin raids became more and more intense and devastating over the years after 1914.

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So on the contrary to the original ideas the regulations of the Hague Rules did not become a conventional obligation. We can still not state – as Bierzanek notices38 – that there could be no legal relevance of the material recorded in The Hague at all. Although not the complete code, but its certain provisions today undisputedly constitute a part of the customary international law39 and so they oblige all the members of the international community. Moreover it is also worth paying attention on that although in The Hague in 1923 the declared recommendations then and there could not become legally binding conventional requirements, after all numerous provisions of the Rules later appear in international treaties when framing the 1949 four Geneva Conventions or in 1977 the Additional Protocols and last but not least in 1954 the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.40 So the impact of the Rules – also in the absence of the legal value – cannot be considered as negligible to the forthcoming international legislation at all.41 It is a question whether such treaty could be created nearly after 100 years which would totally remount to the 1923 concept – adjusting the recorded material to the modern world – and would exclusively collect special rules related to aerial warfare, or the chance and sense for this would be converging to zero.

10.4

Reasons for Non-Adoption of Special Rules

According to the opinion of Michael N. Schmitt ‘law responds almost instinctively to tectonic shifts in warfare’, although it is true that it can lag behind for years from the innovations of the theatres of war.42 However, more than one century expired since the first action of fighter aircrafts even so a specific international convention concerning aerial warfare has not yet reached completion. What kind of reasons are there in the background? Why the international legislation regarding civil aviation has not been followed parallel with the evolution of the (special) system of norms for the use of airplanes for military purposes? Since not so much, only one and a half decade later after the pioneer flight of the Wright brothers in 1919 the

38 39 40 41

Id., pp. 404-405. Sandoz, Swinarski & Zimmermann 1987, p. 688. Bierzanek 1988, pp. 403-404. It is also essential to bear in mind that in the 1923 Hague Rules appeared for the first time the notion, the concept of military objective. The importance, the significant impact of this fundamental definition – see Art. XXIV – is also unquestionable. A. Jachec-Neale, The Concept of Military Objectives in International Law and Targeting Practice, Routledge, 2015, p. 21. 42 M.N. Schmitt, ‘Effects-based Operations and the Law of Aerial Warfare’, Washington University Global Studies Law Review, Vol. 5, No. 2, 2006, p. 265.

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43 R.F. Williams, ‘Developments in Aerial Law’, University of Pennsylvania Law Review, Vol. 75, Nos. 2-3, 1926, p. 148. 44 1944 Convention on International Civil Aviation 15 UNTS 295; 1944 International Air Services Transit Agreement 84 UNTS 389 and 1944 International Air Transport Agreement 171 UNTS 387. 45 Bierzanek 1988, p. 398. 46 Wyman 1984.

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Philip Spoerri draws the attention to that after Hiroshima and Nagasaki on the Diplomatic Conference of Geneva of 1949 presumably it could also play a role to the lack of the creation of the special rules – not leaving out of consideration of course all the other impedimental effects resided in the cold war – that the states did not wish to get tangled up to unprofitable, unproductive debates on the legality of nuclear weapons.47

10.5

A Lacuna in the Texture of International Law?

The statement can be heard several times at several places according to which aerial warfare is an unregulated field, there are no norms which would cover it.48 Or, if there are such norms, they are anarchic.49 Does this allegation really stand its ground just because no special international treaty has been created concerning the air wars? It is an argument from the side of those who are denying the existence of coherent regulation that in Nuremberg, so during the trials of the Nazi leaders after World War II we could not find any crime related to aerial warfare among the counts;50 due to the lack or uncertainty of relevant system of norms.51 (However, it is no doubt that there have been numerous such crimes committed.) Lacking such (special) international treaty would indeed a complete freedom characterize the aerial warfare in the fields of available means and operational methods? I do not share this conviction. On the one hand in the absence of (special) conventional obligation the customary international law could serve as a basis and benchmark. So it is not an unregulated field at all. We should not forget the Martens Clause that cannot be missed from the codification treaties which just appeared first in the area of ius in bello. As the Hague Convention No. IV of 1907 defines:52

47 Spoerri 2007, From the 1907 Hague Conventions […], p. 38. 48 Remigiusz Bierzanek for instance quotes the opinion of W. G. Downey expressed on the 43rd meeting of the American Society of International Law. Bierzanek 1988, p. 405. Hamilton DeSaussure cites Marshal of the Royal Air Force Sir Arthur Travers Harris as an example. H. DeSaussure, ‘The Laws of Air Warfare: Are There Any?’, International Law Studies, Vol. 62. The Use of Force, Human Rights, and General International Legal Issues, US Naval War College, 1980, p. 281. 49 Bierzanek 1988, p. 407. 50 Although among others Göring was also sitting in the dock. (It is a generally accepted point of view that for the carpet bombing carried out by the Axis Powers none was blamed in Nuremberg because both sides performed such actions in the same way.) De Saussure 1980, p. 284; P.J. Goda, ‘The Protection of Civilians from Bombardment by Aircraft: The Ineffectiveness of the International Law of War’, Military Law Review, Vol. 33, 1966, p. 109. 51 Bierzanek 1988, p. 406. 52 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 3 Martens Nouveau Recueil (ser. 3) 461. Preamble.

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Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. So even during World War I – namely hardly one decade after the first flight and successful landing of an airplane when the non-development of the relating conventions could be charged to the really short time and when on paper both the rules of land and naval warfare has been recorded, but not the rules concerning war in the air – and ever since then the aerial warfare did not experience to be exempt from obligations deriving from legal norms. It was always a regulated area although it is doubtless that due to the character of the relevant customary norms it had numerous uncertainties but was provided with univocal basic rules. The substantive norms, the canons were always given (and are given today as well since we do not even have specific rules at present.) These foundation stones provide such a fundament which, I believe would permit the detailed legislation but at the same time make it unnecessary too. Namely during the aerial warfare, just like in the case of ground and sea operations, four principles should be kept in mind. Should it be any special topic these have to direct the commanders and the executors. These principles are: the requirement of humanity, the precept of distinction,53 the military necessity and the aspects of proportionality. These four essential requirements would guide us whether the given attack could be considered as legitimate: be it either ground or naval or even aerial warfare. The British Prime Minister, Neville Chamberlain was conceiving likewise in 1938: I think we may say that there are, at any rate, three rules of international law or three principles of international law which are as applicable to warfare from the air as they are to war at sea or on land. In the first place, it is against international law to bomb civilians as such and to make deliberate attacks upon 53 Although in the legal world discrimination should be avoided, in the field of humanitarian international law it is even desired, actually more than that, it is a basic expectation. See for instance Art. 51 of Protocol I of 1977 which declares: ‘Indiscriminate attacks are prohibited. Indiscriminate attacks are: […] those which employ a method or means of combat the effects of which cannot be limited […] and are of a nature to strike military objectives and civilians or civilian objects without distinction.’ In other cases of course the classic prohibition of discrimination can be found out of the provisions of the Geneva norms. So accordingly the common Art. 3 of the four Geneva Conventions of 1949 states the following: ‘Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.’

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World War I and the Appearance of Aerial Warfare: A Lacuna in the Texture of International Law? civilian populations. […] In the second place, targets which are aimed at from the air must be legitimate military objectives and must be capable of identification. In the third place, reasonable care must be taken in attacking these military objectives so that by carelessness a civilian population in the neighbourhood is not bombed.54

In addition to the above, the rules which were recorded from 1864 in the Geneva and from 1899 in the Hague conventions could naturally be adapted – when they could be considered as relevant – in the cases of aerial warfare as well. (Paul Fauchille already proposed in 1911 that the rules adopted in The Hague in 1907 related to the siege and bombardment carried out by the ground and naval forces should be applied inrelation to the aerial warfare as well.)55 Let us take an example: Article 51 of Additional Protocol I of 1977. The paragraph states that the indiscriminate attacks are prohibited. At the same time it defines this category and points out that – among others – an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilian or civilian objects must be regarded as inadmissible. Although not even a word mentions the air forces, unequivocally the so called saturation bombing as such (inter alia) is qualified by the article as contrary to international law. Furthermore, as far as the development of law by analogy is concerned, the following must be highlighted. When in 1977, as an absolute new rule, the paragraph appears in Protocol I related to – the above already mentioned – persons parachuting from an aircraft in distress in point of fact what else happened then the adaptation of the long ago codified customary rules to the shipwrecked members of armed conflicts at sea?56 In my view, all the relevant provisions could be transplanted in a similar manner, mutatis mutandis, when there is a need to alteration at all. But why should, just for example,57 in the case of air bombardments other regulations be created which already and clearly were fixed in relation to the attacks launched by the field artillery? And similarly all the international treaties which order to ban either type of weapons should be applicable in the case of all military services. What should explain the different

54 55 56 57

Quoted by: Goda 1966, pp. 97-98. Id., p. 95. Sandoz, Swinarski & Zimmermann 1987, p. 495. Wyman 1984.

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treatment for instance in the cases of bacteriological, toxin or chemical weapons, or asphyxiating gases etc.? In my opinion no rational reason can be found for this.

10.6

Would There Be a Need for Special Rules?

Taking into consideration the system of the norms of aerial warfare we can frame three options (not excluding each other): a) We need such rules which can be applied and should be applied to all forms of warfare. b) The norms of land and sea warfare should be adapted by analogy to the battles fought in the air as well. c) There is a need specifically to the particular regulations related to aerial warfare.58 According to my point of view it is redundant to differentiate between the three dimensions of war. The same basic rules should be applied in the case of every military service, differentiation is unnecessary.59 However, the viewpoints of those are worth investigating who argue for the importance of unique legislation. Let us see how convincingly. Indeed, the statement is categorical according to which the lack of a specific code governing the acts of the air forces at present is one of the greatest deficiencies of the law of armed conflicts.60 And although by creating Protocol I of 1977 numerous aspects of aerial warfare could be covered, several topics still remained open. According to Yoram Dinstein, due to the fast and continuous development of aerial techniques and strategies, there is a huge gap between the present practice and the prevailing positive law, which is waiting for liquidation.61 Elbridge Colby was warning even in 1925 that the idea according to which the accepted rules regarding ground forces or sea forces could also be used to the atmosphere is false. In his opinion we cannot make the rules of aerial warfare by analogy where there is no analogy. An aircraft cannot be compared to a seagoing vessel. For instance it cannot be stopped in the air and be forced to boarding. If it perpetrates an infringement in the airspace and opposes its interception it can only be destroyed. It is not able to transport a great quantity of contraband either (do not forget it is only 1925). And we could further count – in the view of Colby – where this constrained analogy is unable to function.62

58 Schwarzenberg 1959, p. 2. 59 It can be resulted from the above mentioned that in my opinion neither the land nor the naval warfare necessitate separate regulations. So the dilemma cannot even emerge that whether the pilot of the military airplane supporting ground or sea operations would ‘switch off’ one of the system of laws and ‘switch on’ the other set of standards when he or she intercepts the shore of seas or oceans. Wyman 1984. 60 The opinion of Professor Howard Levie is quoted by: De Saussure 1980, p. 281. 61 P. Spoerri, The Contemporary Challenges to the Law on the Conduct of Hostilities, in Beruto 2007, p. 150. 62 E. Colby, ‘Aerial Law and War Targets’, American Journal of International Law, Vol. 19, 1925, p. 702.

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A recently executed project deserves attention under which the Harvard’s Humanitarian Policy and Conflict Research (HPCR) group published a manual in 2009 decidedly dealing with the topic of ‘international law applicable to air and missile warfare’.63 Why the experts launched out on such a huge enterprise 8 decades after the creation of the Hague Rules?64 According to their explanation it is evident though that from 1923 numerous such treaties were adopted which tried to match to the challenges of modern warfare (the Geneva Conventions of 1949 and 1977 and further on a series of disarmament treaties) and so these abundantly consist rules on the functioning of air forces in accordance with international law, but they do not cover however all the important aspects of aerial warfare (moreover with the exemption of the 1949 conventions these are not universal treaties so they do not oblige all states).65 The San Remo Manual, published in the mid-1990s, served as a sample for the researchers made by the International Institute of Humanitarian Law in the topic of ‘international law applicable to armed conflicts at sea’.66 The aim of the group of international experts of the HPCR67 was also to frame up such a document that would be a nonbinding instrument – such as the San Remo Manual – but accepted as a compass, functioning as a guideline, which would reveal the general practice of states accepted as law and the relevant conventional obligations.68 (It should be noticed that the San Remo Manual related to naval warfare also richly contains paragraphs related to air law.) Of course the Hague Rules of 1923 served as another model. But when in the 1920s the aerial warfare was so to say in its infancy, the role, the strategic importance, the facilities, etc. of air forces have come through revolutionary changes during the 8 decades. The HPCR Manual intended to match to these new challenges as well and wished to react on all the relevant novelties of modern warfare.69 What kind of – not sufficiently regulated – questions would justify, according to the experts, the importance of the identification of special norms? Let us see their most important arguments. They take the view that the currently available rules based on treaties for example inadequately react to the requirements posed by the threat of international

63 HPCR Manual on International Law Applicable to Air and Missile Warfare. Program on Humanitarian Policy and Conflict Research at Harvard University, Bern, 15 May 2009. 64 The project initiated by the HPCR was launched exactly 80 years after 1923, in 2003. 65 Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare. Program on Humanitarian Policy and Conflict Research at Harvard University, 2010, p. 1. 66 L. Doswald-Beck (Ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Grotius Publications, Cambridge University Press, Cambridge, 1995. 67 The group led by Yoram Dinstein comprised more than 30 theoretical and practical professionals who on the one hand were coming from governmental spheres (military and civilian) and on the other from the staff of the ICRC. International Humanitarian Law Research Initiative, IHL in Air and Missile Warfare, About the Project, www.ihlresearch.org/amw/about-project (last visited Aug. 29, 2014). 68 Id. 69 Commentary on the HPCR 2010, p. 1.

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terrorism. Thus – definitely since September 11, 2001 – the system of laws of armed conflicts should be able to give an adequate answer to the problem of the hijacked civilian aircrafts used as weapons.70 And not least it should keep pace with the unstoppable development of military technology, and so military aircraft technology and should fulfil the gaps appearing in the system of norms concerning high-tech warfare.71 In order to understand the reasonableness of the special norms it could help if we just review schematically the content concept of the Manual so the main track of its chapters. However, I consider it to be conducive that as a first step we carry out an overview of the Hague Rules of 1923 and after that, providing a chance to compare the two documents, we get the 2009 Manual to take place. So first let us see the structure of the Hague Rules. The titles of the chapters in sequence are: I. Applicability: Classification and Marks (of aircrafts); II. General Principles; III. Belligerents; IV. Hostilities; V. Military Authority Over Enemy and Neutral Aircraft and Persons on Board; VI. Belligerent Duties Towards Neutral States and Neutral Duties Towards Belligerent States; VII. Visit and Search, Capture and Condemnation; VIII. Definitions. The Manual follows the undermentioned framework: A. Definitions; B. General Framework; C. Weapons; D. Attacks; E. Military Objectives; F. Direct Participation in Hostilities; G. Precautions in Attacks; H. Precautions by the Belligerent Party Subject to Attack; I. Protection of Civilian Aircraft; J. Protection of Particular Types of Aircraft (civilian airliners, aircraft granted safe conduct); K. Specific Protection of Medical and Religious Personnel, Medical Units and Transports; L. Specific Protection of Medical Aircraft; M. Specific Protection of the Natural Environment; N. Specific Protection of Other Persons and Objects(civil defence, cultural property, objects indispensable to the survival of the civilian population, UN personnel); O. Humanitarian Aid; P. Exclusion Zones and No-Fly Zones; Q. Deception, Ruses of War and Perfidy; R. Espionage; S. Surrender; T. Parachutists from an Aircraft in Distress; U. Contraband, Interception, Inspection and Capture; V. Aerial Blockade; W. Combined Operations; X. Neutrality. The question appears: do not the existing general rules cover all of these subjects? Reviewing the titles and the content of these chapters, I consider that all the relevant provisions applicable to these issues can be found, without any exceptions, in the conventions and protocols of 1949 and 1977 or in the Hague treaties.72 70 Id. See about this topic: G. Sulyok, ‘An Assessment of the Destruction of Rouge Civil Aircraft under International Law and Constitutional Law’, Fundamentum, English Edition, No. 5, 2005, pp. 5-30. 71 The experts also emphasized that – since international law is not a static law – the Manual itself would need a revision as time goes by in relation to the future changes. International Humanitarian Law Research Initiative, About the Project, www.ihlresearch.org/amw/about-project (last visited Aug. 29, 2014); About the Manual, www.ihlresearch.org/amw/aboutmanual (last visited Aug. 29, 2014). 72 To give only some examples:

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10.7

Conclusion

According to my point of view it is definitely useful, though unnecessary to draft a special international treaty concerning aerial warfare. Why is it unnecessary? Because the available norms are sufficiently adaptable in the cases of all military services. There is nothing which would explain the differentiation. If a new type of weapon, new type of method appears in warfare due to the technological progress the foundations will not change, they should be applied the same way. To bring up an example just from the field of airspace used for military purposes: even after the appearance of the drones, so the unmanned aerial vehicles in the near past the question emerged also if there is a need to react on the challenges of the drone warfare with the creation of a new international treaty or the already existing rules are adequate and sufficient enough. I consider that although the drones unquestionably meant and still mean a novelty but in their case it would not explain the necessity of special rules. Why should different norms be applied for instance during the definition of a target for the pilot of an airplane than for the drone operator who is thousands of kilometres far from the person or object that should be liquidated?73 The applicable provisions are the same.74 Why could the special regulation be useful after all? Because the unequivocal, precise system of norms would evidently foster compliance and would facilitate the sanctioning –

see HPCR Manual, Chapter E. (‘Military Objectives’) and Protocol I, Art. 52. (‘General Protection of Civilian Objects’); – or HPCR Manual, Chapter G. and H. (‘Precautions’) and Protocol I, Arts. 57-58. (‘Precautionary Measures’); – or HPCR Manual, Chapter L. (‘Specific Protection of Medical Aircraft’) and Protocol I, Arts. 21-31. (‘Medical Transportation’); – or let us compare HPCR Manual, Chapter M. (‘Specific Protection of the Natural Environment’) with Protocol I, Art. 55. (‘Protection of the Natural Environment’); – or HPCR Manual, Chapter N. (‘Specific Protection of Cultural Property’) with the Hague Convention of 1954 (‘for the Protection of Cultural Property in the Event of Armed Conflict’); – or HPCR Manual, Chapter R. (‘Espionage’) with Protocol I, Art. 46. (‘Spies’); – or HPCR Manual, Chapter T. (‘Parachutists in Distress’) with Geneva Convention II, Chapter II. (‘Wounded, Sick and Shipwrecked’), and so forth and so on. 73 See: Zs. Csapó, Drónok harca – kérdések kereszttüzében. Van-e szükség új nemzetközi szabályozásra? (i.e. Game of Drones – In the Crossfire of Questions. Do We Need the Renewal of the International Legal Framework?), in Zs. Csapó (Ed.), Emlékkötet Herczegh Géza születésének 85. évfordulójára. A ius in bello fejlődése és mai problémái. (i.e. Memorial Volume to Herczegh Géza’s 85th Birthday: Development and Current Problems of Ius in Bello), University of Pécs Faculty of Law, 2013, pp. 39-63. 74 Just for example the most important are (from Protocol I of 1977): ‘It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ (Art. 35.) ‘The Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.’ (Art. 48.) ‘Indiscriminate attacks are prohibited.’ Such as an ‘attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ (Art. 51).

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of infringements. In 1949 the members of the delegations just waking up from the horrors of World War II did not either decide on the Diplomatic Conference of Geneva to – following my already explained logic – only record the golden rules of humanitarian law and be satisfied with the declaration of some principles (humanity, distinction, military necessity, proportionality or their consequences since the right of the parties of a conflict to choose the methods or means of warfare is not limitless, the prohibition to cause unnecessary suffering, etc.). Then and there (and later at the congress in the 1970s as well) they thought that the more detailed rules would serve for their basic aims the protection of the victims of armed conflicts. Let us just think how in-depth paragraphs the third ‘prisoners of war’ Geneva Convention operates with. It deals meticulously and exhaustively on the accommodation, nutrition, medical treatment, religious activities, labour, etc. of the POWs and does not only settle for sketching up the – otherwise univocal – frames (such as the declaration of the prohibition of discrimination or the requirement to respect humanity). At that time the drafters of the treaty saw in this thorough regulation the guarantee to moderate the atrocities of the up and coming conflicts. That is why all the initiatives could be welcomed which would clarify the rules of ius in bello. How much chances we find today to the creation of a convention containing articles intend to codify or to develop progressively rules concerning the military aspects of international air law? According to the present state, only exiguous. Its reason is on the one hand the lack of the political will from the states and on the other the abandonment of the structure of the Hague legislation at the turn of the 19th-20th centuries and starting from 1949 the crystallising and spread of another type of framework. Nevertheless whether we turn back or not to the differentiated regulation according to military services we can surely state that: in the case of all the armed conflicts at the time of the centenary of World War I the regulations which should be complied with are unequivocal whether these battles are fought on land, at sea or in the air. Only the norms should be respected! Whether there should be no need to apply them? It is to be regretted that one and a half decade after the turn of the millennium someone who would wish this – aware of the current incidents and processes, monitoring what is going on – would be a naive utopian. Although it is doubtless that not either in 1914 none could even suspect where the world is going to…

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A Five-Step Legal Assessment in the Joint Targeting Process – An Overview

Károly Végh*

11.1

Introduction

The targeting process has become an integral element of the conduct of modern warfare, especially in multinational coalition operations.1 Sophisticated targeting processes have been in place and applied during several military campaigns such as the NATO intervention in Kosovo,2 the 2003 US operations in Iraq,3 the NATO-led and US operations in Afghanistan,4 and also during the NATO operations in Libya.5 In very brief terms, at the risk of oversimplification, the joint targeting process covers the military commander’s decision-making process during which ‘targets’ are identified and validated, and the means and methods of the planned attack against them are determined.6 Undoubtedly, the operational legal advisor is an inevitable participant within this process as the primary legal advisor to the commander; each targeting process contains a specific legal assessment in order to ensure compliance with the applicable norms of the law of armed conflict.7 *

1 2

3

4

5

6 7

LL.M (Groningen), Legal officer, Hungarian Defence Forces and PhD student at University of Debrecen, Faculty of Law. The views expressed are those of the author only and do not necessarily reflect the position of the Hungarian Defence Forces. M.N. Schmitt & E.W. Widmar, ‘On Target’: Precision and Balance in the Contemporary Law of Targeting, Journal Of National Security Law & Policy, Vol. 7, 2014, pp. 379-380. T. Montgomery, Legal Perspective from the EUCOM Targeting Cell, in A. E. Wall (Ed.), Legal and Ethical Lessons of NATO’s Kosovo Campaign, US Naval War College International Law Studies, Vol. 78, 2002, pp. 189-197. J. M. Fyfe, The Evolution of Time Sensitive Targeting: Operation Iraqi Freedom Results and Lessons, College of Aerospace Doctrine, Research and Education, Air University US Air Force, Research Papers 2005-02, (www.dtic.mil/dtic/tr/fulltext/u2/a476994.pdf); M.N. Schmitt, The Conduct of Hostilities During Operation Iraqi Freedom: An International Humanitarian Law Assessment, Yearbook of International Humanitarian Law 2003, Vol. 6, T.M.C. Asser Press, 2006, pp. 73-109; M. N. Schmitt, Targeting and International Humanitarian Law in Afghanistan, in M.N. Schmitt (Ed.), The War in Afghanistan: A Legal Analysis, US Naval War College International Law Studies, Vol. 85, 2009, pp. 189-197. C. De Cock, Operation Unified Protector and the Protection of Civilians in Lybia, in M.N. Schmitt & L. Arimatsu (Eds,) Yearbook of International Humanitarian Law 2011, Vol. 14, T.M.C. Asser Press, 2012, pp. 213-236. For potential definitions see I. Henderson, The Contemporary Law of Targeting, Martinus Nijhoff Publishers, 2009, p. xix; W. H. Boothby, The Law of Targeting, Oxford University Press, 2012, p. 4. Art. 82 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 requires that ‘legal advisers are available

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The present study, after a short overview of the operational targeting process, aims to present a five-step legal assessment model comprising of the primary legal questions to be answered during the targeting process. With regard to the methodology of this study, I will provide an overview and summary of existing and emerging notions, principles and interpretations of the law of armed conflict for each step of the assessment, and highlight the most widely debated cases – all these synthetized in a practice-oriented approach. Whereas an in-depth analysis of each legal issue falls beyond the scope of this overview, this study will also reference the potential differences within the legal assessment with respect to international or non-international armed conflicts.

11.2

A Brief Overview of the Targeting Process from the Perspective of the Legal Advisor

‘Targeting’ is an operational term of art, used primarily in the context of planning and execution of military operations.8 In its broadest – technical – meaning, targeting is the process to create ‘effects’ that lead or directly contribute to the accomplishment of mission objectives set out by the military commander.9 Hence, the careful selection and engagement of individual targets (e.g., a supply route) is closely linked to certain operational effects10 to be achieved (e.g., disruption of enemy lines of communication), and the accumulation of those effects is to create an end-state that meets the planned operational objectives (e.g., the inability of the adversary to maintain its fighting capabilities).11 As for the classification of such effects, targeting doctrines usually refer to lethal and non-lethal targeting.12 The first refers to the use of kinetic force against the adversary; the latter is generally used in non-kinetic operations, such as information operations, key

[…] to advise military commanders […] on the application of the Conventions and this Protocol’, setting out a clear requirement to appoint qualified legal advisors to military commanders, ensuring the compliance of military decisions with the applicable law of armed conflict. 8 The most referenced targeting doctrine, taken as a reference in this study as well, is that of the United States of America: Joint Publication 3-60of the United States Joint Chiefs of Staff on Joint Targeting, 31 January 2013 (hereinafter: JP 3-60) (http://cfr.org/content/publications/attachments/Joint_Chiefs_of_Staff-Joint_Targeting_31_January_2013.pdf). Several states have their own targeting doctrines describing the role and process of joint targeting; also, NATO has its own targeting doctrine issued in Allied Joint Publication (AJP)-3.9 Joint Targeting (2008). 9 JP 3-60, p. vii. 10 Id., pp. I-6-I-7. 11 Id., p. II-33; M. N. Schmitt, Effects-based Operations and the Law of Aerial Warfare, Washington University Global Studies Law Review, Vol. 5, No. 2, 2006, p. 274. (http://openscholarship.wustl.edu/law_globalstudies/vol5/iss2/2). 12 JP 3-60, p. I-6.

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leader engagements, or as certain methods of psychological operations.13 The present study focuses on the first, i.e., on the legal aspects of lethal targeting.14 Operational targeting is executed in a so-called ‘join targeting cycle’ which is a sixphase process consisting of (1) identifying the desired end state and the commander’s objectives, (2) target development and prioritization, (3) capability analysis and weaponeering, (4) commander’s decision and force assignment, (5) mission planning and force execution, and (6) assessment.15 The order of these phases and the individual tasks to be performed in each of them is strictly regulated by doctrine and is adhered to by operational ‘targeteers’.16 In very simple terms, during the joint targeting cycle, phase 1 focuses on understanding the commander’s objectives, be it, in a hypothetical example, the disruption of the adversary’s ability to sustain its war-fighting capability in theatre, to which the effects are attached, e.g., that the adversary becomes unable to supply its forces.17 In phase 2, targets are selected, analysed and validated to create such effects, for example lines of communication, enemy supply units and their equipment.18 Having set up an approved, legally validated target, in phase 3 the appropriate engagement means and methods (including ‘weaponeering’) are chosen and analysed in order to find the most feasible and effective solution to reach the desired ‘operational effect’, e.g., aerial bombardments of enemy supply equipment with air-tosurface precision guided munition.19 This is followed, in phase 4, by the assignment of tasks for execution to a certain command or unit, be it e.g., a fighter-bomber aircraft squadron.20 In phase 5 this unit prepares for the engagement, conducts further pre-strike analysis and prosecutes the target on order.21 Finally, in phase 6, the assessment of the effects and effectiveness of the attack is conducted, forming the basis of further decisions on the conduct of the operation.22

13 On non-kinetic targeting see P. Ducheine, Non-Kinetic Capabilities: Complementing the Kinetic Prevalence to Targeting, ACIL Research Paper 2014-26 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2474091). 14 Hence, further reference to targeting in this paper shall be understood as ‘lethal targeting’. 15 JP 3-60, p. II-3. For a description of NATO’s targeting process see M. Roorda, NATO’s Targeting Process: Ensuring Human Control Over and Lawful Use of ‘Autonomous’ Weapons, ACIL Research Paper 2015-06, pp. 3-11 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2593697). For an overview of targeting doctrine and practice see A. Jachec-Neale, The Concept of Military Objectives in International Law and Targeting Practice, Routledge, 2015, pp. 202-205. 16 JP 3-60, p. GL-9. 17 Id., p. II-4. 18 Id., pp. II-5 – II-13. 19 Id., pp. II-13 – II-16. 20 Id., pp. II-19 – II-20. 21 Id., pp. II-21. 22 See JP 3-60, p. II-31.

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As seen in the description above, the targeting process focuses on ‘effects’. This military concept of ‘effects-based operations’ (EBO)23 and effects-based targeting has been analysed and also criticized by several legal experts due to its ambiguous relationship and potential non-compliance with the key principles of the law of armed conflict.24 To highlight the most crucial elements, at the risk of running ahead in my analysis, it is to be ensured that the ‘operational effects’ to which targets are selected do not overstretch the legal concept of ‘military advantage’ within the notion of the ‘military objective’ or during the proportionality analysis, thereby breaking the inherent limitations within the laws on attack.25 On the other hand, it is also argued that an effects-based targeting, especially when applied through precision attacks, may well limit or reduce the conflict’s collateral effects on the civilian population.26 In order to ensure that this effects-based targeting process complies with the law of armed conflict, the validation stage within phase 2 (‘target development’) of the joint targeting cycle includes a detailed legal assessment of the proposed target.27 This is one of the most important stages when the prepared target is being revised and evaluated by the legal advisor.28 Beyond that, the legal advisor is also to provide a reasoned legal advice in relation to the compliance with the principles of discrimination, humanity, proportionality and on meeting the requirement of precautionary measures. Hence, the legal advisor’s presence is to be maintained during all phases of the joint targeting cycle.29 From a legal perspective then, it is the legal advisor’s role to assess the applicable norms of the international law of armed conflict on ‘attack’30 in the light of the facts, calculations and operational assumptions presented to him or her. In the following chapters, this author will provide an overview of a five-step legal assessment model to ensure that the planning and execution of the attack, i.e., the decision

23 On the military concept of ‘effects-based operations’ see: J. N. Mattis, USJFCOM Commander’s Guidance for Effects-based Operations, Parameters, Autumn 2008, pp. 18-25. (http://strategicstudiesinstitute.army.mil/ pubs/parameters/Articles/08autumn/mattis.pdf). 24 See e.g., Boothby, 2012, pp. 489-511; Henderson, 2009, pp. 126-128; Schmitt, Effects-based Operations, 2006, pp. 274-291; J. Dill, The 21st-Century Belligerent’s Trilemma, European Journal of International Law, Vol. 26, No. 1, 2015, pp. 93-94. 25 Thereby, this author agrees with the assessment by Henderson, 2009, p. 128. 26 M.N. Schmitt, Precision Attack and International Humanitarian Law, International Review of the Red Cross, Vol 87, No. 859, September 2005, p. 453. 27 JP 3-60, p. II-11. 28 Ibid. See also reflected in: G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge, 2010, p. 531. 29 Schmitt, 2005, p. 450-454. 30 The literature on this issue varies between the ‘law of targeting’ and the ‘law on attack’. This author prefers the latter term, due its closer link to the terminology applied in the relevant international conventions. See Boothby, 2012; M. N. Schmitt, Fault Lines in the Law of Attack, in S. Breau and A. Jachec-Neale (Eds.), Testing the Boundaries of International Humanitarian Law, British Institute of International and Comparative Law, 2006, p. 277.

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resulting from the targeting process complies with the requirements of the law of armed conflict.

11.3

A Five-Step Legal Approach during the Targeting Process

The core issues surrounding the lawfulness of attacking a target have been identified and analysed by several scholars in many different ways. Schmitt and Widmar outlined five essential elements through which the legal assessment may be conducted, namely ‘(1) target; (2) weapon; (3) execution of the attack; (4) collateral damage and incidental injury; and (5) location.’31 Ian Henderson has set up an ‘IHL 6-step targeting process’32 focusing on (1) ‘location of the target’, (2) its ‘lawfulness as a military objective’, (3) taking ‘all feasible precautions’, (4) ‘assessing collateral damage’, (5) ‘taking care in the tactical situation to ensure hitting the desired aim point’, and (6) ‘cancelling or suspending the attack if the assessments under steps 2 or 4’’are no longer valid.’33 In another approach, the legal assessment for targeting is grouped around three key principles of law, namely ‘distinction’, ‘proportionality’ and the requirement of ‘taking precautionary measures’ (this latter broken down into further elements).34 As it can be seen, the legal assessment within the targeting process revolves around identical or similar concepts and principles, however, often viewed from different angles and with divergent amplifications. This author offers another approach, aimed at mirroring the logic and concept of the joint targeting cycle set out above, consisting of five major questions, namely: 1. The location of the planned attack and the adversary – how does the geography of the operational theatre and the legal nature of the adversary affect the applicable legal framework? 2. The target – a. is the targeted object a legitimate ‘military objective’? b. can the targeted person(s) be attacked lawfully? 3. Proportionality – is the expected incidental loss of civilian life or harm to civilian objects or a combination thereof excessive in relation to the concrete and direct military advantage anticipated?

31 32 33 34

Schmitt & Widmar, 2014, p. 380. Henderson, 2009, p. 234. Henderson, 2009, p. 237. L. R. Blank, Extending Positive Identification from Persons to Places: Terrorism, Armed Conflict and the Identification of Military Objectives. Utah Law Review, 2013, p. 1232.

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4. Precautions in attack – have feasible precautions been taken during the planning and execution phases in order to ensure that the targets are lawful military objectives and to minimize collateral damage, as well as to refrain from disproportionate attacks? 5. Legal assessment in relation to the weaponeering solution – are there any further legal restrictions with regard to the chosen means and methods of target prosecution? It will be demonstrated in the chapters below that the assessment model outlined above corresponds the requirements of the targeting doctrines and encompasses the core legal problems and principles under the law of attack.35

11.3.1

Step 1 – The Location of the Attack and the Adversary

The location and legal nature of the target has a direct effect on the determination of the applicable legal regime during the targeting process. In a complex joint operations area,36 international and non-international armed conflicts may co-exist; regular armed forces, non-state armed groups either under the control of another state or acting independently may appear in theatre simultaneously, blurring the operational, and also the legal picture.37 With special regard to targeting, it has been argued by authors and also been confirmed by jurisprudence that the laws on attack, including the definition of military objectives, the principle of proportionality as well as the requirement to take precautionary measures are identical in their essential characteristics both in international and non-international armed conflicts.38 On the other hand, some authors note that the operational reality, the nature of the actors and the interplay of other international legal regimes in non-international armed conflicts may not necessarily support this direct flow of terms and provisions

35 It is submitted here that the law of targeting is to be found among the international humanitarian legal norms concerning the conduct of hostilities, and more precisely, within the laws on attack. 36 For a definition of the joint operations area see JP 3-0, US Joint Operations Doctrine, 11 August 2011, p. IV-13 (www.dtic.mil/doctrine/new_pubs/jp3_0.pdf). 37 See e.g., J. G. Stewart, Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict, International Review of the Red Cross, Vol. 85, 2003, pp. 315316. 38 See Rules 7-20 in J-M. Henckaerts& L. Doswald-Beck (eds.), Customary International Humanitarian Law, Vol. 1, ICRC, Cambridge, 2005, pp. 25-67; M. N. Schmitt et al., The Manual of the Law on Non-international Armed Conflict With Commentary, International Institute of Humanitarian Law, Sanremo, 2006; Y. Dinstein, Non-International Armed Conflicts in International Law, Cambridge, 2014, p. 211; International Criminal tribunal for The former Yugoslavia (ICTY), Prosecutor v. Dusko Tadic, Decision on Defence Motion for In terlocutory Appeal on Jurisdiction, Case No. IT-94-1-T, 2 October 1995; Prosecutor v. EnverHadžihasanović& Amir Kubura, Decision On Joint Defence Interlocutory Appeal Of Trial Chamber Decision On Rule 98bis Motions For Acquittal, Case No. IT-01-47, ICTY App. Ch, 11 March 2005; Prosecutor v. Stanislav Galic, Judgement and Opinion, Case No. IT-98-29, ICTY Tr. Ch. I, 5 December 2003.

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from the realm of international armed conflicts.39 Due to different approaches regarding the scope and content of the applicable law in non-international armed conflicts, it is important to first have a clear understanding of the overall legal framework for the targeting process. Here, some of the controversies will be highlighted. While an armed conflict between two or more states’ armed forces, by virtue of common Article 2 of the 1949 Geneva Conventions constitutes an international armed conflict, the involvement of organized armed groups in the hostilities logically begs for further differentiation. It is argued here that an armed conflict – reaching a certain threshold of intensity – between a state’s regular armed forces and non-state organized armed groups, is to be classified as a non-international armed conflict.40 This, however, may transform into an international armed conflict, if the organized armed group conducts its operations ‘on behalf’ of another state.41 What exactly the correct test for proving this acting ‘on behalf’ is, is subject to ongoing discussions among scholars. One view supports the so-called ‘Tadic-test’,42 referring to the ‘overall control’ exercised by another state over the organized armed group.43 The other view prefers the approach based upon the terms ‘belonging to’ in Article 4A(2) of the 3rd Geneva Convention Relative to the Treatment of Prisoners of War of 1949, arguing for applying coherent notions within the law of armed conflict.44 A significant difference, also relevant from a targeting perspective, between the two is that the latter test provides for a lower threshold in terms of the required nexus between the organized armed group and the state in order to ‘internationalize’ the conflict.45 It is submitted here that eventually, it is the belligerent state’s own legal approach that determines the application of one or the other test. 39 L. Hill-Cawthorne, Developing the Law of Non-International Armed Conflict: A View of the Harmonization Project, EJIL:Talk! (www.ejiltalk.org/developing-the-law-of-non-international-armed-conflict-a-view-ofthe-harmonization-project/); S. Sivakumaran, Re-envisaging the International Law of Internal Armed Conflict, European Journal of International Law, Vol. 22, No. 1, 2012, pp. 219-264. This author notes that there are clear indications on the willingness of states to apply the laws of attack applicable in non-international armed conflicts as much as possible in non-international armed conflicts. 40 See e.g., Schmitt et al., 2006, p. 2; Prosecutor v. Tadic, above, Para. 70; Rome Statute of the International Criminal Court, Art. 8(2)f). 41 Also discussed in A Cassese, The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, European Journal of International Law, Vol. 18, No. 4, 2007, p. 649-668; K. Okimoto, The Relationship Between a State and an Organised Armed Group and its Impact on the Classification of Armed, Amsterdam Law Forum, Vol 5, No. 3, 2013, p. 37. 42 Stemming from Prosecutor v. Tadic, Judgment, Case No. IT-94-1-A, ICTY App. Ch, 15 July 1999, Para. 120. 43 See M.N. Schmitt, Charting the Legal Geography of Non-International Armed Conflict, Military Law And The Law Of War Review, Vol. 52, No. 1, 2013, p. 96; G. S. Corn, Regulating Hostilities in Non-International Armed Conflicts: Thoughts on Bridging the Divide between the Tadić Aspiration and Conflict Realities, US Naval War College International Law Studies, Vol. 91, 2015, p. 284. 44 K. Del Mar, The Requirement of ‘Belonging’ under International Humanitarian Law, European Journal of International Law, Vol. 21, 2010, No. 1, pp. 105-124. M. Milanovic, What Exactly Internationalizes an Internal Armed Conflict, EJIL: Talk, www.ejiltalk.org/what-exactly-internationalizes-an-internal-armedconflict/. 45 Del Mar, 2010, p. 113.

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As for geographical aspects, the targeting of organized armed groups in cross-border operations, i.e., when the target is outside of the ‘hot battlefield’46 may lead to controversies regarding the applicable legal framework. We will assume, for the sake of this example, that there is an ongoing non-international armed conflict between governmental forces and a non-state organized armed group, and this conflict spills over state boundaries; the organized armed group escapes into, hides in the neighbouring country, or maintains camps, operational sites across the border.47 Still, there is no assumption or proof with regard to any nexus between the organized armed group and the neighbouring state, which could clearly turn the conflict into an international armed one. One view is that the applicable legal framework for targeting this group is the law applicable to non-international armed conflict, despite the cross-border element.48 An opposing view is that unless the territorial state gives its consent to the operations, this becomes an international armed conflict.49 This author is of the view that unless actual hostilities (‘resort to armed force’) take place between the intervening forces and the territorial state’s forces, the applicable legal regime remains that of non-international armed conflicts. On the other hand, if there is an ongoing international armed conflict between two states, additional hostilities (in the context of the ongoing conflict) between one state’s forces and organized armed groups from the other state would not create an additional non-international conflict; here, the author argues that the organized armed groups are to be treated as ‘belonging to’ the other belligerent party, as highlighted above. Therefore, ‘battlefield geography’50 and the legal status of the adversary forces are indeed interrelated factors with regard to conflict classification. Having then determined the legal framework to be applied, attention is to be turned on the substantive rules of the ‘law of attack’.

11.3.2

Step 2 – The Target

From an operational standpoint, a target can be any object, subject or other entity, including an area upon which an effect is to be created. From a law of armed conflict per-

46 J. C. Daskal, The Geography Of The Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone, University Of Pennsylvania Law Review, Vol. 161, Vo. 5, 2013, p. 1166. 47 See also in M. N. Schmitt, Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law, Columbia Journal of Transnational Law, Vol. 52, 2013, pp. 85-87. 48 Schmitt, 2013, p. 103. 49 See D. Akande, Classification of Armed Conflicts: Relevant Legal Concepts, in E. Wilmhurst (Ed.), International Law and the Classification Of Conflicts, Oxford University Press, 2012, pp. 73-75. 50 See Daskal, 2013, p. 1166.

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spective, a target can essentially be an object or a person (‘human’), pending further conditions.51 11.3.2.1 Step 2 (a) – Objects as Targets In accordance with the basic principle of distinction, only ‘military objectives’ may be attacked.52 Hence, any object selected during the target nomination stage must comply with this legal requirement. The definition of a ‘military objective’ is to be found in Article 52(2) of Additional Protocol I of 1977, providing that […] military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. In accordance with the generally applied interpretation of this definition, any object selected as a potential target must meet two cumulative conditions, namely (1) to effectively contribute to military action by its nature, location, purpose or use, and (2) its total or partial destruction, capture or neutralization shall, in the circumstances ruling at the time, offer a definite military advantage.53 This dual, cumulative requirement will now be disassembled into its constitutive elements. 1 Effective Contribution to Military Action The analysis of the notion of military objectives usually starts with the interpretation of the notions of ‘nature’, ‘location’, ‘purpose’ or ‘use’. From the perspective of the targeting process, these elements shall be interpreted in light of the specific meaning of ‘military action’ in the given armed conflict to which they ‘effectively’ contribute. It is argued that an effective contribution to military action encompasses a nexus, be it direct or indirect, to the ‘war-fighting’ or ‘combat operations’ of the adversary.54 It is also noted that this term should not be interpreted too narrowly, in a strictly tactical context.55 These two 51 See M.N. Schmitt, Targeting in Operational Law, in T.D. Gill & D. Fleck, The Handbook of the Law of Military Operations, Oxford University Press, 2010, pp. 247-252; Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, 2004, p. 85. 52 Dinstein, 2004, p. 82. 53 See e.g., Boothby, 2012, p. 100; Y. Sandoz, C. Swinarski & B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff, 1987, p. 635; H. B. Robertson, The Principle of the Military Objective in the Law of Armed Conflict, United States Air Force Academy Journal of Legal Studies, Vol. 8, 1997, pp. 48-49; A. Boivin, The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare, University Centre for International Humanitarian Law Research Paper Series No. 2/2006, Geneva, 2006, p. 15. 54 Dinstein, 2004, p. 87; Henderson, 2009, p. 64. 55 Schmitt & Widmar, 2014, pp. 392-394.

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limitations provide us some reference, especially in light of the ‘operational effects’ to be achieved. This means that the effective contribution must provide a nexus to the military, and not to the overall political, or economic efforts of the adversary.56 With regard to the scope of such military actions, the other end of the scale is that such actions are not to be limited to the micro-level of the combat, that is, the adversary’s military actions are to be examined within the whole spectrum of operations, including the kinetic and non-kinetic actions. The other crucial element is the ‘effective contribution’, namely the nexus that binds the objects to the military actions.57 The attribute ‘effective’ seems to be less helpful in practice. On one hand, it is argued that ‘effective’ is to be interpreted as ‘not insignificant’,58‘factual’,59 or having a ‘proximate nexus.’60 On the other hand, it is also argued that an effective contribution to the enemy’s military action has a direct relevance regarding the extent of the military advantage to be gained; hence, the two criteria are essentially the two sides of the same coin.61 However, from the targeting perspective, it is still to be ensured that (1) the object’s contribution is linked to military actions, and (2) the nexus between the object and the military action is manifest, logically deducible and not too remote.62 In the context of a non-international armed conflict, military actions of non-state actors opposing governmental forces should be viewed as inclusive all those operations and activities which have a factual and logical nexus to acts of violence against governmental forces within the context of the ongoing armed conflict. 2 By Nature … It is argued that a military objective by nature has an inherent military character which qualifies the object in question as an eo ipso military object.63 It means that its fundamental character, its purpose renders it for a primarily and essentially military use.64 Examples in international armed conflicts include military equipment and armament, e.g., fighter aircraft, warships, military command and control posts, military airbases and ports, barracks, etc.

56 See e.g., A.P.V. Rogers, Law on the Battlefield, Manchester University Press, 2nd edition, 2004, p. 59; HPCR Manual on International Law Applicable to Air and Missile Warfare, Cambridge University Press, 2013, p. 121 (Hereinafter: HPCR Manual). 57 See Dill, 2015, p. 85. 58 Schmitt, Targeting in Operational Law, 2010, p. 253. 59 Schmitt & Widmar, 2014, p. 392. 60 Dinstein, 2004, p. 87. 61 Dinstein, 2004, p. 85; Boivin, 2006, pp. 15-16. 62 See Henderson, 2009, p. 55. 63 Dinstein, 2004, p. 88. 64 Henderson, 2009, p. 55.

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In non-international armed conflicts, facilities, for example training camps or bases established by non-state armed groups to train and accommodate their fighting personnel may arguably be treated as military objectives by nature, due to their inherent purpose.65 From an operational perspective, the practical importance of an object being a military objective by nature is that it remains targetable throughout the conflict, even if it is not being used in actual combat.66 Nevertheless, it shall not be forgotten that even if the targeted object has an intrinsic military character, its effective contribution to the adversary’s military action is to be proven, and shall not be treated as given.67 If the targeted object, although military by nature, has no discernible or only too remote nexus to the ongoing operation of the adversary, its qualification as a valid target within the given operation may become questionable.68 3 By Location … A military objective by location refers to objects whose geographical position has a specific importance in connection with the operations.69 It is then the location of the object which is to be judged during the targeting process. Usual examples refer to special mountain passes or bridges as single routes to the theatre of operations.70 Beyond that, commentators note that purely civilian objects that are located in an area with a definite operational importance, as a hill may hence become a valid military target.71 Targeting an object by its location usually offers a military advantage by denying access to certain areas or to channel the movement of the adversary. In the author’s view the above criteria are equally valid and applicable in non-international armed conflicts, with due regard to the manoeuvring abilities of different non-state organized armed groups.72 4 By Purpose … According to the ICRC Commentary to Additional Protocol I,73 this term refers to an ‘intended future use’74 of the object. From a targeting perspective, this particular classification is forward looking; the subject of the analysis is the intention of the adversary to use the given objective in connection with its military operations. The importance of this ele65 66 67 68 69 70 71 72

Blank, 2013, p. 1249. HPCR Manual, 2013, p. 116. (Commentary on Rule 22. a). Henderson, 2009, p. 55; Boothby, 2012, p. 100. Henderson, 2009, p. 56. Sandoz et al., 1987, p. 636. Rogers, 2004, p. 69; HPCR Manual, 2013, p. 117. Dinstein, 2004, p. 92; Henderson, 2009, p. 57. M. John-Hopkins, Regulating the conduct of urban warfare: lessons from contemporary asymmetric armed conflicts, International Review of the Red Cross, No. 878, pp. 469-493. 73 Y. Sandoz, C. Swinarski & B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987. 74 Id., p. 636, Para. 2022.

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ment lies within the operational need to prosecute the target, under certain conditions, before its use by the adversary, in order to gain military advantage.75 In this case, as noted, reasonable and reliable information is needed on the intentions and plans of the adversary.76 From the legal perspective, the information should satisfy the criteria of rationality and a definite degree of reliability.77 In asymmetrical wars the means of warfare are often unconventional. Several objects or materials can be transformed into weapons or other equipment directly supporting combat operations.78 In this author’s position, if there is reliable information that such items are being prepared to be transformed or even are undergoing transformation into combat equipment or weapons, targeting them could arguably be based upon their ‘purpose’. 5 By Use … Under the current practice of the law of armed conflict, a civilian object may become a military objective through its use for military purposes.79 Hence, civilian objects lose their general protection from attack if and until such time as they are used in connection with military actions.80 This particular classification has two essential characteristics. First, the use of the objective shall be factual and not assumed. Secondly, this classification has a temporal limitation; an object can only be targeted as long as it is used in such a way.81 A practical issue for the targeting process is the degree of the use, namely whether the object or facility is used totally or partially for military purposes. One view is that an object becomes military objective by its use ‘regardless of the extent of military usage.’82 However, this author hesitates supporting this view, due to its peril of oversimplifying the potentials in targeting an object. A more prudent approach would be to analyse each object on a caseby-case basis whether there is a material possibility to limit the attack to those parts of the object that are being used for military purposes.83 This requirement, in this author’s view, does not only stem from the principles of proportionality and precaution in attacks, but is also deducible from the principle of distinction.

75 HPCR Manual, 2013, p. 117. 76 Id.; Report of the Expert Meeting ‘Targeting Military Objectives’ Organized by the University Centre for International Humanitarian Law Geneva, University Centre for International Humanitarian Law, 2005, p. 7. (www.geneva-academy.ch/docs/expert-meetings/2005/1rapport_objectif_militaire.pdf). 77 M.N. Schmitt, Essays on the Law and War at the Fault Lines, T.M.C. Asser Press, 2012, p. 200. 78 Examples may be steel pipes to be turned into rockets or their launchers, fertilizers to be turned into explosives or insecticides to home-made chemical weapons. 79 Dinstein, 2004, p. 91. 80 Henderson, 2009, p. 58. 81 Id. 82 Schmitt & Widmar, 2014, p. 393. 83 By an example: in a building with separate wings, only that part that is acutally used for military purposes should be made subject of an attack.

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Within the targeting process, those nominated target objects that, beside their military usage, continue maintaining a civilian function, such as ports or railway hubs, are generally characterized as ‘dual-use’ objects.84 This classification is acknowledged as an operational term of art, with the primary aim to highlight the military (and also political) sensitivity of a potential target. From a target classification perspective, if their use for military purposes is confirmed, such objects are valid military objectives;85 however, the temporal requirement is still to be met here. If there is reliable information on regularly recurring (instead of parallel) military use, the category of ‘purpose’ may be taken into account.86 A continuous ‘dual-use’ character plays a significant role in other phases of the targeting process, namely when the proportionality test is conducted, and also when potential limitations on prosecution are determined as part of the precautionary measures. 6 Military Advantage In order for an object to be classified as a military objective, under Article 52(2) of Additional Protocol I, it is to be demonstrated that its ‘total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ The elements of this condition are (1) the military nature of the advantage, (2) its definite character, and (3) that it is reasonably anticipated during the targeting process.87 Regarding the first element, commentaries to the law applicable to international armed conflicts note that the advantage shall be of military value and cannot be purely political.88 This means from a targeting perspective that the strike against the selected target must have a certain positive effect on own military operations or a negative effect on those of the adversary, within the military domain. The proper interpretation of the notion of ‘military advantage’ during the targeting process is therefore closely linked to the core of the targeting process, namely the ‘operational effect’. As noted by an author, effects-based targeting views the adversary as a ‘system of systems’89 and aims at destroying its centre of gravity with selected attacks. However, discrepancies may arise if the planned operational effect is linked to political, social or even psychological centres of gravity.90 A notable example is if the planned operational effect is the disruption of the political support for the adversary’s leader by its population.91 Whilst it is absolutely reasonable to account for 84 85 86 87 88 89 90

JP 3-60, p. A-3. HPCR Manual, 2013, p. 119. See the view of Jachec-Neale, 2015, pp. 69-70. See e.g., Boothby, Dinstein, 2004, p. 86; Solis, 2010, p. 522; Rogers, 2004, p. 71. Schmitt, Effects-based Operations, 2006, p. 274. See M. Sassoli, Legitimate Targets Of Attacks Under International Humanitarian Law – Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 27-29, 2003, Program on Humanitarian Policy and Conflict Research at Harvard University, p. 4. (www.hpcrresearch.org/sites/default/files/publications/Session1.pdf). 91 See e.g., Sassoli, 2003, p. 4; Schmitt, 2012, p. 183.

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the disruption of the support by the civilian population in terms of strategic or even operational objectives, there is no room for such considerations when assessing the military advantage anticipated from a planned attack.92 Hence, it is to be ensured that the planned, or in legal terms, anticipated military advantage is related to the adversary’s military actions or capabilities. Here, it is important to recall an often used interpretive guidance,93 stemming from the United Kingdom’s (and other states’) statement upon ratification to Additional Protocol I, providing that military advantage is to be assessed through ‘the attack considered as a whole and not only from isolated or particular parts of the attack.’94 In this respect, this author offers the view that an ‘attack as whole’ may be best viewed from the operational level of a campaign, with a view to the effects of interconnected tactical level fires and manoeuvres. From a practical perspective, the above frames the assessment of military advantage: it should not restrict itself to the potential tactical gains but shall be deducible from a clearly identifiable (planned) operation instead of the campaign as a whole. The second element requires the military advantage to be ‘definite’, meaning ‘concrete’ and ‘perceptible’.95 However, it does not mean that it shall be significant or decisive.96 With regard to the third element, it is to be noted briefly here that in the targeting process, the assessment on the anticipated military advantage is heavily reliant on the available information and on the phasing of effects. For the commander to make his reasoned, operational judgement, his or her task is to assess duly and prudently all the information at hand when the nominated object is being approved as a target. 11.3.2.2 Step 2 (b) – Humans as Targets The targeting of persons under the law of armed conflict revolves around the principle of the protection of civilians and their distinction from other persons either having a belligerent97 status or from those who directly participate in the hostilities.98 Under the provisions of the law of international armed conflict, the following categories of persons are deemed 92 See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Para. 55. (www.icty.org/x/file/Press/nato061300.pdf); W. J. Fenrick, Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia, European Journal of International Law, Vol. 12, No. 3, 2001, p. 498. 93 See e.g., HPCR Manual, pp. 35-36; Boivin, 2006, p. 22. 94 See the statement of the United Kingdom upon ratification of Additional Protocol I of 1977, reprinted in A. Rogers & R. Guelff, Documents on the Laws of War, Oxford University Press, 3rd Edition, 2000, p. 511. 95 M. Bothe, K. J. Partsch, W. A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, 1982, p. 326. 96 Schmitt, Targeting in Operational Law, 2010, p. 253. 97 Reference to this notion varies between ‘combatants’ and ‘belligerents’. The author prefers the latter due to its more comprehensive meaning. 98 Arts. 43 and 50(1) of Additional Protocol I of 1977. See Solis, 2010, pp. 188-189. N. Melzer, Interpretive Guidance On The Notion Of Direct Participation In Hostilities Under International Humanitarian Law, ICRC, 2009, pp. 20-21.

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targetable per se, based upon their status:99 members of the regular armed forces (including militias forming part thereof) of a state,100 except for certain protected members such as medical personnel or chaplains, and those hors de combat,101 members of other militias or volunteer groups, if they meet certain structural conditions,102 members of regular armed forces who profess allegiance to an authority not recognized by the belligerent state,103 members of a levee en masse.104 Also, those civilians who directly participate in the hostilities, are targetable ‘for such time as they take a direct part in the hostilities.’105 With regard to targeting members of the adversary’s armed forces and related militias, there is usually less ambivalence during the targeting process; however, positive identification and status assessment are unavoidable elements, especially, if the adversary’s forces fail to properly distinguish themselves from the overall civilian population. Some controversy surrounds the targeting of certain political-military leaders who may not be formal members of the armed forces but have authority and control over their activities.106 Here, the guiding principle is arguably the nexus to and the degree of the involvement into the planning and execution of military operations, or participation in the military decisionmaking process.107 Beyond that, both theoretical and practical difficulties arise in relation to targeting members of non-state organized armed groups and with regard to the exact meaning of ‘direct participation in the hostilities’ by civilians.108 In summary, as also accepted by the

99 See G. Corn & C. Jenks, Two Sides Of The Combatant Coin: Untangling Direct Participation in Hostilities From Belligerent Status in Non-International Armed Conflicts, University of Pennsylvania Journal of International Law, Vol. 33, No. 2, 2011, pp. 341-342; G. S. Corn et al., Belligerent Targeting and the Invalidity of a Least Harmful Means Rule, US Naval War College International Law Studies, Vol. 89, 2013, pp. 548-550; Schmitt, Targeting In Operational Law, 2010, pp. 248-249. 100 Arts. 43(2) and 50(1) of Additional Protocol I of 1977, Art. 4 A.(1) of Geneva Convention III of 1949. 101 Arts. 41 and 43(2) of Additional Protocol I of 1977. 102 Art. 50(1) of Additional Protocol I of 1977, Art. 4 A.(2) of Geneva Convention III of 1949. 103 Art. 50(1) of Additional Protocol I of 1977, Art. 4 A.(3) of Geneva Convention III of 1949. 104 Art. 50(1) of Additional Protocol I of 1977, Art. 4 A.(6) of Geneva Convention III of 1949. 105 Art. 50(3) of Additional Protocol I of 1977; B. Boothby, ‘And For Such Time As’: The Time Dimension To Direct Participation In Hostilities, New York University Journal of International Law and Politics, Vol. 42, 2010, pp. 741-768. F. J. Hampson, Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law, US Naval War College International Law Studies, Vol. 87, 2011, pp. 187-216. 106 See Boothby, 2012, p. 530; Schmitt, The Conduct of Hostilities During Operation Iraqi Freedom, 2006, pp. 82-83. 107 Id., p. 83; Henderson, 2009, pp. 111-113. 108 For different views see e.g., M. N. Schmitt, Deconstructing Direct Participation In Hostilities: The Constitutive Elements, New York University Journal of International Law and Politics, Vol. 42, 2010, pp. 697-739; E. Christensen, The Dilemma Of Direct Participation In Hostilities, Journal of Transnational Law & Policy, Spring, 2010, pp. 281-309; Melzer, 2009; K. Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance, New York University Journal of International Law and Politics Vol. 42, 2010, pp. 641-657. Boothby, 2010, pp. 741-768.

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Károly Végh ICRC Interpretive Guidance,109 members of non-state organized armed groups can be targeted.110 However, with regard to the membership criteria, and especially the requirement of a ‘continuous combat function’, opinions are at variance.111 The ICRC position is that individuals who ‘continuously assume a function involving direct participation in hostilities’112 are considered as members of an organized armed group, and hence become targetable as long as this function applies. The opposing view argues that all individuals who are members of an organized armed group, irrespective of their actual function within that group, are targetable based upon this status of them.113 From another viewpoint, even if certain elements of the concept of the continuous combat function can be accepted, focus should be moved from the nature of the conducts to the nature of the individual’s nexus to the group, also taking into account the diversity among organized armed group and their potentials to develop wings or organs with an essentially political function.114 This author is of the view that the ICRC position in this regard, nevertheless accepted as stemming from a practical approach, has the very practical peril of blurring the distinction between status-based and conduct-based targeting.115 As summarized by Corn and Jenks, [s]tatus based targeting authority is […] triggered by the determination that a proposed object of attack is a member of an opposition belligerent force. In contrast, conduct based targeting is based on the determination that an individual presumed inoffensive is engaged in conduct hostile to the friendly force.116 Although the continuous combat function appears to support the status-based targeting of persons, its core element is still based upon a certain conduct, focusing on its temporal and material scope.117 Hence, beyond the confirmation of a person’s mere membership within or affiliation to a non-state organized armed group, the application of the ‘continuous combat function’ element further requires confirmation regarding that person’s role and activities within the group and the actual threat this conduct poses to own forces.118 109 Above n. 98. 110 Melzer, 2009, pp. 27-28. 111 See e.g., studies above at footnote 108, N. Melzer, Keeping The Balance Between Military Necessity And Humanity: A Response To Four Critiques Of The ICRC’s Interpretive Guidance On The Notion Of Direct Participation In Hostilities, New York University Journal of International Law and Politics, Vol. 42, 2010, pp. 831-916; Dinstein, 2015, pp. 59-61. 112 Melzer, 2009, p. 34. 113 See Schmitt & Widmar, 2014, p. 387; Watkin, 2010, p. 655. 114 Cf., the argument by Melzer, 2010, pp. 848-850. With regard to the problem of complex armed groups consisting of separate political and military wings, see S. Sivakumaran, The Law of Non-international Armed Conflict, Oxford University Press, 2012, pp. 359-362. 115 Corn & Jenks, 2011, pp. 343-344. Corn et al., 2013, pp. 548-550. 116 Ibid., p. 341. Footnotes omitted. 117 Corn & Jenks, 2011, p. 343. 118 See Melzer, 2009, Section B, pp. 41-68.

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This, while putting a significant burden on the state party in many conflict environments, goes clearly beyond of what is actually required if the targeted person is a member of the regular armed forces of the adversary under status-based targeting.119 Therefore, continuous combat function should rather be used as a supporting methodology in assessing the status of the targeted person, while relying primarily on the nature and internal characteristics of the armed group as a whole and the nexus of the person to that group.120 In summary, the targeting of persons is arguably focusing either on their status of combatants or develops a specific threat assessment in relation to the conducts (amounting to direct participation) of the targeted person.121 With regard to non-state organized armed groups, current legal discussions indicate that overlaps between the two approaches may become unavoidable, with an emerging requirement to shift the balance towards the protection of civilians in potential borderline cases. Having analysed the above constituent elements, the legal advisor shall come to a clear conclusion whether or not the nominated target constitutes a lawful ‘military objective’ or a lawful ‘human target’122 under the law of armed conflict. This judgement is decisive in order to arrive at the next step of the assessment.

11.3.3

Step 3 – Proportionality

With regard to black letter law, the principle of proportionality is reflected in three distinct provisions within Additional Protocol I of 1977, namely in Article 51(5) para. b), stating that attacks violating the principle of distinction are treated as indiscriminate, and in Article 57(2) para. a) (iii) and Article 57(3), within the context of precautionary measures. In brief terms, the principle of proportionality puts an obligation on the belligerents to avoid or cancel an attack if it ‘may be expected to cause incidental loss to civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’123 The operational difficulty with regard to this principle lies within the prima facie comparison and weighing of two different concepts, namely the anticipated military advantage against the expected ‘harm’124 to civilians. In extremis, e.g., balancing the military value of a destroyed enemy battle tank against the life of five or more people would lead

119 120 121 122 123 124

Schmitt & Widmar, 2014, p. 387. Cf., K. Watkin, 2010, pp. 691-692. Corn & Jenks, 2011, pp. 336-337. An expression used by Henderson, 2009, p. 79. See Additional Protocol I of 1977, Art. 51(5)b). Fort the sake of simplicity, the term ‘harm’ will be used to summarize the ‘loss to civilian life, injury to civilians, damage to civilian objects, or a combination thereof’ as expressed by the law.

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Károly Végh to inherently incorrect conclusions and misconceptions.125 The various subjective elements in the text cited above, such as ‘expected’, ‘excessive’ or ‘concrete and direct’ turn this judgement rather to an operational art than to a purely legal analysis. Nevertheless, a few elements deserve some clarification here. First, the expected ‘harm’ is arguable measured through the foreseeable primary and collateral effects of the attack. These include the primary effects of the attack itself (e.g., the physical destruction of a bridge) and also those secondary or residual effects that follow from the attack and are ‘reasonably foreseeable’126 based upon available information, and deducted from own and from the adversary’s system analysis. However, it is argued here that this requirement shall not include mere generic assumptions or purely theoretical probabilities.127 For example, it is reasonably expected that the destruction of the adversary’s ammunition depot will cause collateral effects not only in the close vicinity of the facility, but, due to secondary explosions, in the wider area as well. As noted above, this expectation and calculation is essentially information-based. Secondly, the attribute of ‘military advantage’ is different in the proportionality principle from that in the definition of the military objective; it becomes ‘concrete and direct’ from ‘definite’. While the core of the military advantage remains the same, the angle of the assessment changes here.128 This author argues that the anticipated military advantage within the proportionality principle, whilst should not be limited to actual tactical level gains,129 requires a more proximate nexus and a more direct deduction from the actual attack than required by the ‘definite’ attribute.130 Another factor that makes this process rather complicated is the lack of universal yardsticks or standards guiding the commander’s decision-making. It has been argued elsewhere that the standard reference point should be the mind-set of the ‘reasonable military commander’, albeit less helpful in practice.131 Eventually, the commander needs to come to a reasonable conclusion, based upon the outcomes of the planning, that the military advantage to be gained by the attack will not be significantly outweighed by the

125 126 127 128 129

See also H. Olesolo, Unlawful Attacks in Combat Situations, Martinus Nijhoff Publishers, 2008, p. 158. See Schmitt & Widmar, 2014, p. 405. See Schmitt, Fault Lines, 2006, p. 296. See Bothe et al., 1982, p. 407. See the discussion between Y. Shany, A. Cohen and M.N. Schmitt on proportionality in relation to the Israeli targeting practices, available on JustSecurity.org, https://www.justsecurity.org/22786/contextualizing-proportionality-analysis-response-schmitt-merriam/ and https://www.justsecurity.org/22948/response-cohenshany/. 130 See also Henderson, 2009, p. 200. 131 R. McLaughlin, The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications, Yearbook of International Humanitarian Law, Vol. 13, 2010, p. 232; E. Cannizzaro, Proportionality in the Law of Armed Conflict, in E. Clapham & P. Gaeta, The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, 2014, p. 339.

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expected collateral ‘harm’.132 This assessment is forward looking; it is based upon calculations, information and also military art. Phase 3 of the joint targeting cycle contains a ‘collateral damage estimation’133 to assist the commander’s decision making process with regard to the principle of proportionality.134 This highly technical methodology not only provides for calculations and assessments on the anticipated collateral effects but also offers certain mitigation measures.135 A recent scholarly analysis of the US practice of this methodology noted its practical efficacy in avoiding or significantly limiting collateral damage to civilians.136 Even though the target qualifies as a military objective and the planned means and methods of engagement indicate a compliance with the principle of proportionality, further precautions are still to be taken.

11.3.4

Step 4 – Precautions in Attack

The obligation to take precautionary measures in attacks has been codified in Article 57 of Additional Protocol I of 1977, and has been accepted as reflecting customary international humanitarian law.137 The obligation itself has several layers and elements, consisting of obligations (1) to take all feasible precautionary measures to ensure that the targeted objective is a valid military objective under the law or armed conflict,138 and (2) to take all feasible precautionary measures to avoid or minimize collateral damage to civilians or to civilian objectives. The latter element can be further divided into the following requirements: (1) to select, if feasible, means and methods with a view to minimize collateral damage to civilians or civilian objectives,139 (2) to refrain from disproportionate attacks,140 (3) if there is a reasonable choice, to select the objective with similar military advantage which is ‘expected to minimise damage to civilians or civilian objectives’,141 and (4), whenever possible to give ‘effective advance warning.’142 The above requirements appear primarily during the target planning procedure; however, precautionary measures are also to be 132 See e.g., M. Newton& L. May, Proportionality in International Law, Oxford University Press, 2014, p. 164. 133 JP 3-60, pp. II-14. and II-16. 134 For a brief description of the methodology see J. D. Wright, ‘Excessive’ Ambiguity: Analysing And Refining The Proportionality Standard, International Review of The Red Cross, Vol. 94, No. 886, 2012, p. 832. 135 JP 3-60, p. III-1. 136 G. McNeal, The US Practice of Collateral Damage Estimation and Mitigation, Pepperdine Working Paper (2011), (http://works.bepress.com/gregorymcneal/22/). 137 HPCR Manual, 2013, p. 25; see also Rule 15 of the ICRC Customary International Humanitarian Law Study, in Henckaerts & L. Doswald-Beck (Eds.), Vol. 1, 2005, pp. 51-55. 138 Additional Protocol I of 1977, Art. 57(2) Para. a) (i). 139 Id., Art. 57(2) Para. a) (ii). 140 Id., Art. 57(2) Paras. a) (iii) and b). 141 Id., Art. 57(3). 142 Id., Art. 57(2) Para. c).

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applied before and during target prosecution, as dictated by Article 57(2) para. 2) b) of Additional Protocol I. Hence, if, due to newly available information, or to any change in the circumstances, it would become apparent that (1) the targeted object is not a valid military objective, or (2) the attack would cause excessive loss of civilian life or damage to civilian objects or a combination thereof, the attack shall be cancelled or suspended. As discernible from the conditions set out above, the obligation to adopt precautionary measures revolves around the highly subjective notion of ‘feasibility’. What is feasible, is, according to the general interpretation of this notion, to be judged taking into account all relevant circumstances, be it humanitarian or military in nature, including, among others, the available information, the accuracy and foreseeable effects of the available weapon systems, the geographical environment, and also the location of the target and of own forces or civilians.143 As with the principle of proportionality, the precautionary measures are eventually subject to the commander’s assessment, in light of all the factors influencing the conduct of the operations. Here again, the standard requirement falls back on reasonableness, ‘common sense and good faith.’144 With regard to the first element of the principle set out above, the verification of the object to be targeted is done through a ‘positive identification’ (PID)145 process. Law requires this to be maintained during the whole target planning and execution phase, in order to ensure compliance with the principle of distinction. Regarding the feasible choice of means and methods in order to minimize collateral damage, the following examples will be given.146 The advancement and more extensive use of precision-guided weapons or munitions arguably reduce the risk to cause unintended collateral damage to civilians and comply with the principle of discrimination at the highest possible level.147 However, as experience from recent operations demonstrates, the availability of such weapons, primarily due to financial and technical reasons, is limited.148 Proposals have been put forward that the employment of precision guided weapons in certain operational environments is indeed a legal obligation, stemming from the precautionary principle; however, this cannot be deducted from the current legal norms and would lead too far against the principle of military necessity.149 Even if such weapons are 143 See reflected in Henckaerts et al. (Eds), 2005, Commentary to Rule 15, p. 54; HPCR Manual, 2013, Commentary to Rule 1(q), pp. 26-28. 144 Sandoz et al., 1987, Para. 2198, p. 682. 145 See JP 3-60, p. II-21. 146 See similar examples mentioned by the NIAC Manual, p. 28. 147 Schmitt, 2005, p. 453. 148 See e.g., R. Romão, Targeting and Adaptation in Combat: Examining the Libya Case, Baltic Security and Defence Review, Vol. 15, No. 1, 2013, pp. 13-14 (www.baltdefcol.org/files/files/BSDR/BSDR_15_1.pdf). 149 See e.g., J. F. Quéguiner, Precautions Under The Law Governing The Conduct Of Hostilities, International Review of the Red Cross, Vol. 88, No. 864, 2006, pp. 801-802; C. B. Puckett, Comment: In This Era Of ‘Smart Weapons’, Is A State Under An International Legal Obligation To Use Precision-Guided Technology In Armed Conflict?, Emory International Law Review, Vol. 18, 2004, p. 645; HPCR Manual, 2013, p. 83.

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available, their employment is subject to other factors, such as operational decisions on the timing of certain effects, the economy of force in a lasting conflict or even the protection of own forces – all these count in the ‘feasibility’ assessment.150 With regard to risk to own forces as an element of consideration, the protection of own forces is an essentially acceptable factor that needs to be taken into account when assessing the feasibility of precautionary measures. However, it shall not lead to overly limiting the activities in order to positively identify and validate military objectives or efforts to minimize collateral damage to civilians.151 On the other hand, accepting greater risk on the price of providing the highest possible level of precautionary measures may arguably lead to the loss or significant reduction of the military advantage to be gained by the attack, which leads back to the balance within the proportionality assessment. As seen, satisfying the legal requirement of taking feasible precautionary measures is linked to both phases 4 and 5 of the joint targeting cycle, up to the moment of releasing the missile or ordnance. In this regard, this obligation extends from the operational level decision-making down to the tactical level mission execution.

11.3.5

Step 5 – Special Legal Considerations in Relation to the Weaponeering Solution

Beyond the limitations stemming directly from the principle of distinction (e.g., avoiding indiscriminate attacks or the use of indiscriminate weapons) and from the obligation to take feasible precautionary measures (e.g., to use smaller ordnance, special timing or special impact angle to minimize collateral effects, or to give advance warnings) there are further potential international legal constraints and restraints with regard to the selection and employment of weapons. Such limitations may equally stem from the prohibition of causing ‘unnecessary suffering or superfluous injury’, as codified in Article 35(2) of Additional Protocol I of 1977. This prohibition applies equally to certain weapons per se and to the employment of certain weapons.152 The use of several weapons has been outlawed by virtue of the 1980 Geneva Convention on Certain Conventional Weapons and its Protocols.153 It is the task of both the operational legal advisor and the weaponeering expert to observe and ensure compliance with the limitations above.

150 See also Quéguiner, 2006, pp. 809-811; HPCR Manual, 2013, pp. 83-84. 151 See also, HPCR Manual, 2013, p. 28. 152 See N. Sitaropoulos, Weapons and Superfluous Injury or Unnecessary Suffering in International Humanitarian Law: Human Pain in Time of War and the Limits of Law, Revue Hellénique de Droit International, Vol. 54, 2001, pp. 71-108; Solis, 2010, pp. 269-272. 153 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980.

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Especially in coalition operations, when the target prosecution is to be executed by different military units from several participating states, their individual international legal obligations under the various conventions may arguably cause difficulties with respect to selecting the appropriate weaponeering solution.154 This may not only include obvious cases such as whether or not missiles with cluster munitions are to be applied but also to issues relating to the divergent interpretations when a weapon is deemed to be incendiary or causing superfluous injuries. Hence, it may then be argued that such additional limitations on the options for weaponeering have a definite impact on the operational commander’s assessment in relation to both proportionality and precautionary principles, by restraining the practically available means and methods at a given time and space. Eventually, this becomes a closed cycle of assessments and re-assessments of objects, weapons, methods and legal implications, in search for the optimal solution to be submitted to the commander for approval.

11.4

Conclusions

Every armed conflict has an impact on civilians; a fact that military commanders cannot escape from. Collateral damage, incidental loss of civilian life – regrettably – accompanies the conduct of military operations. During the last decade, several critiques have been expressed in connection with major military campaigns, demanding a higher level care for civilians.155 It has been argued throughout this study that the targeting process embedded in various military doctrines aims to ensure that the conduct of attacks complies with the law of armed conflict. The single phases of the joint targeting cycle are designed to be capable of incorporating the relevant legal principles of the law of attack. However, compliance with the law is never assumed as given, notwithstanding the sophisticated methods to assess a targeted object’s military character or to mitigate collateral effects. It is the legal advisor to the commander whose active participation and legal control during the targeting process is needed to close the ‘cycle’ in its very concept – in order to live up to its essential goal. The law of targeting has often been characterized by experts as being ‘at the very heart of the law of war.’156 The various concepts, notions and definitions, although often interpreted differently, all lead us back to the key principles of the law of armed conflict, namely 154 Jachec-Neale, 2015, pp. 244-246. 155 See e.g., Human Rights Watch, Targeting Saada – Unlawful Coalition Airstrikes on Saada City in Yemen, Report of 30 June 2015, www.hrw.org/report/2015/06/30/targeting-saada/unlawful-coalition-airstrikessaada-city-yemen; Office of the High Commissioner for Human Rights, Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July – 10 September 2014, www.ohchr.org/Documents/Countries/IQ/UNAMI_ OHCHR_POC_Report_FINAL_6July_10September2014.pdf. 156 Boothby, 2012, p. vii; See also Schmitt & Widmar, 2014, p. 379.

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distinction, proportionality, military necessity and humanity – all accumulated in this single area of the law of armed conflict. This author shares the view that maintaining the proper balance between the principles of military necessity and humanity may arguably be a key approach behind a prudent targeting decision.157 It is then their correct interpretation within each definition and principle that makes the legal analysis an essential part of the targeting process.

157 Cf., M. N. Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, Virginia Journal Of International Law, Vol. 50, No. 4, 2010, pp. 795-839.

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Experiences in the Application of NCRS Compatible National Crisis Response Measures’ System in Connection with the Ukrainian Crisis

László Keszely* The NATO Crisis Response System (NCRS) entered into force on 31 September 2005 and replaced the long outdated NATO Precautionary System (NPS). In the NCRS Manual, the Alliance made a recommendation toward the member countries and invited the different nations to establish their respective national crisis response systems in harmony with the NCRS or to adjust their existing systems accordingly. According to the recommendation, the Hungarian Government – after years of discussions, disputes, and compromises – established the NCRS Compatible National Crisis Response Measures’ System (NCRMS), effective as of 2011.1 The system was applied under real circumstances 9 years after the establishment of the NCRS for the first time. For that, an event no less than a significant change to the international security situation right next to the border of the Alliance was required. With regard to the events in Ukraine, the Alliance found that the time has come for applying the crisis response system – that had only been tested in exercises – in a real life situation. So far, the following experiences may be concluded in Hungary regarding the application of the system:2 NCRS measures include 5 basic elements: preventive options, crises response measures, alarm states indicating terror threat, counter-surprise, and counter-aggression.3 It is strange * 1 2 3

COL dr. Laszlo Keszely Hungarian Ministry of Defence, Defence Administration Office. Article originally published in Hungarian in HADTUDOMÁNY 2015/1-2, pp. 120-125. Government Decree No. 278/2011 (XII. 20.) on the purpose, tasks, and procedures of the NCRS compatible National Crisis Response Measures’ System and the duties of stakeholders. The name and content of particular crisis response measures may not be covered in this article as they include classified information. The preventive options include measures to be applied in the early phase of a crisis that precede the acute phase. They aim to prevent the crisis from occurring or escalating by applying particularly soft measures. By type, these may be diplomatic, economic, military, arms control and public affairs measures. Crisis response measures Crisis response measures are protocols developed and consolidated in advance with a view to controlling crises that have already escalated to a somewhat acute phase. Counter-surprise means a set of protocols NATO may use if an air attack, a ballistic missile with a traditional or non-traditional warhead, a terror attack, or cyber attack is launched unexpectedly. These protocols focus primarily on the measures to

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that, out of these options, preventive options were not applied at all. NATO has sought to prevent further escalation and deterioration in the relations between the NATO and Russia from the very beginning. Consequently, it consistently refrained from implementing actions that might be deemed provocative, for which purpose the use of soft measures offered by the preventive options would have been the ideal means. However, the Alliance has taken numerous steps in practice, including ones on the field of diplomacy and military diplomacy, such as – among others – increasing the number of exercises at the Eastern borders of NATO. While the substances of the related preventive options were the same or similar to the above measures, their official introduction was ignored. It should also be noted that economic preventive options were not on the Alliances’ agenda, despite that means of economic pressure – including the use of economic sanctions and bans – have been applied by NATO member countries both in Europe and overseas in a consistent and powerful manner. In Europe, such measures were mostly applied under the aegis of the European Union, thereby giving a fine example of the ‘distribution of activities’ between the two international organisations. From among the means of the NCRS only the crisis response measures have been applied, however, not separately, but periodically in small or even major packages. Recommendations have arrived from NATO bodies as well as individual member countries. It was a typical trend in the responses of the member states that the ones that located at the Eastern border of the Alliance, primarily within the post-Soviet region, and the former states of the Warsaw Pact showed the highest level of activity. The powerful actions taken by Poland were even more prominent than most, giving a fine example of how much the population and administration of the country felt threatened by the events. Nevertheless, NATO – consistently observing its moderate reactions policy noted above – considered the submitted proposals carefully. These efforts toward acting carefully were clear during the entire decision-making process regarding such proposals. One of the manifestations of this was that a significant proportion of the crisis response measures were ‘pre-authorised’ measures falling within the competence of SACEUR,4 the supreme commander of the Alliance in Europe. SACEUR could have decided on the introduction of such measures on his own as part of his powers and competences. However, he requested the position or approval of the North Atlantic Council through the Military Committee in each case and without exception, meaning

4

be taken immediately. Counter-aggression may be applied if a NATO member country, the allied forces, assets, or infrastructure is under armed attack. In practice, this category includes operations falling within the scope of Art. 5 of the Washington Treaty, where – under Art. 51 of the UN Charter – the Alliance exercises its rights pertaining to collective self-defence. The terror threat alarm levels aim to prevent potential terror attacks and, as the case may be, to mitigate the impact of carried-out attacks, and to prevent further attacks. Supreme Allied Commander Europe.

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that the confirmation of the military and political leadership was sought before each and every decision of SACEUR. The above factors had an advantageous impact on the decision-support and decisionmaking processes of the member states because the approval procedure carried out at Alliance-level included numerous rounds and left sufficient time for the member states to make well-grounded decisions. When SACEUR submitted its proposals to the Military Committee and the North Atlantic Council, the member countries also received copies of the proposals on the use of any measure, thereby allowing the nations sufficient time to consider their decision in advance and to prepare for the implementation of such decisions, if necessary. This was of great significance because, among others, the member states adopted the NATO Crisis Response System at different levels and in various ways. Some countries simply translated the original NATO document and considered the adaptation process completed – some even apply the original English language document without any translation. These countries faced a rather difficult situation because they needed to establish a suitable national decision-making procedure in an ad hoc manner and had to adopt their respective decisions within a matter of days. These tasks posed serious challenges on numerous occasions even to older member countries with a long history and tradition of cooperation in the Alliance, considering that not even such member countries had any experience regarding the ‘real life’ application of the NATO Crisis Response System. The Military Committee reviewed the submitted proposals carefully and forwarded only a select few to political leadership for approval. The North Atlantic Council shared the view of the Military Committee and accepted the submitted proposals at all times, showing that the opinion of military and political leadership regarding the situation was consistent and harmonious. The North Atlantic Council either approved the measures that fell within its competence or authorized SACEUR to implement the measures falling into his competence. After the North Atlantic Council had made his decision, SACEUR ordered the NATO forces under its command to implement authorized measures without delay and requested the member states to introduce the appropriate national decisions. The period required by each nation to consider the proposed measures and develop a national position varied. Consequently, the member states adopted their decisions on the introduction of such national level measures at different times. The first – and largest – set of measures was introduced by Romania within 2 days after the initiation was made. Most member states adopted their decisions within a period of one or one and a half weeks, while it took over two weeks for some nations to send their reports to NATO on the introduced measures. Hungarian experts were of the opinion that Hungary should adopt its decision at the same time as most other member states, instead of acting too early or too late. Fortunately, NCRMS – including the Collection of National Measures – was already available at the time, and the experiences regarding the application of national

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László Keszely measures gained in the course of the NATO Crisis Management Exercises (CMX)5 and other exercises were also available. The first set of NATO measures were received by the Ministry of Defence on a Friday and the primary evaluation of the measures was commenced immediately. As the national measures were already elaborated in detail, it did not take more than 10 minutes to identify the national counterpart of each crisis response measures introduced by NATO. It helped to identify the ministry that responsible for the measure, the cooperating entities, the relevant pieces of legislation, and the tasks to be carried out, broken down by the entities responsible for each task. The Defence Administration Inter-ministerial Coordination Working Group (DAICWG)6 was convened on the very same day, and the representatives of each ministry were informed about the measures taken by the Alliance and the corresponding national measures. During the weekend, each ministry reviewed the proposed national measures and resumed the meeting of DAICWG on the following Monday with finalized proposals. The members of DAICWG represented each and every ministry, meaning that the meetings of DAICWG provided a more concise alternative to the otherwise lengthy reconciliation of the Government’s proposals by the public administration entities. Against such background, it was fairly easy and smooth to produce a proposal for the Government regarding the national position of Hungary and the introduction of national measures that were deemed justified by the professional bodies. This solution did in fact speed up the normal course of public administration procedures, which is a fundamental requirement in a crisis. Under regular circumstances, the reconciliation and finalization of Government’s proposals usually takes a long time – even weeks or months, occasionally. However, the timeframe open for the preparation of decisions might be as short as a few hours in a crisis. DAICWG is capable of operating within such a short timeframe. It can convene and submit its proposal to the Government within hours – a capability that was confirmed in practice during the crisis in Ukraine. In the course of identifying and evaluating the sets of measures initiated by NATO, it turned out that the introduction of a single measure falls within the competence of the Government, while all other measures may be applied upon the decision of the competent minister. However, Hungary carried out the decision-making process just as carefully as NATO, and together with the only measure in the set that fell within the competence of the Government – the measures falling within the competence of individual ministers – were also submitted to the Government for approval. In agreement with the proposal of 5 6

Crisis Management Exercise. DAICWG is the decision supporting body of the Government in national defence administration related matters, including the provision of opinions and proposals. It is chaired by the Director-General of the Defence Administration Office of the Ministry of Defence, and consists of the experts of various ministries and major entities involved in national defence affairs.

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DAICWG, the Government introduced the measure falling within its competence and also authorized the ministers concerned to introduce the measures falling with their respective competences. Broad inter-ministerial discussions were carried out in each case since DAICWG met even in situations where a ministry could have decided on the application of a measure at its own discretion. This procedure turned out to be rather useful even beyond exercising caution because, in the inter-ministerial working group, each and every sector was provided with general information regarding NATO’s position on the current situation, the measures introduced by the Alliance, and the initiatives aimed toward the member countries. Furthermore, representatives of the ministries could inform each other regularly about the crisis response activities carried out on their respective fields, the measures introduced, the completed and pending tasks, and they also could discuss the national position Hungary should take regarding the various crisis response measures initiated by NATO. With regard to the sectorial and professional fields, the Ministry of Defence was the responsible entity for most of the initiated measures, while the Ministry of Internal Affairs was the responsible entity for the introduction of only one proposed measure. Nevertheless, each and every measure consisted of a mix of military and civilian components, meaning that civil bodies and organisations were involved in the introduction of each measure falling within the competence of the Ministry of Defence. Accordingly, and despite the short time available, discussions needed to be carried out with a relatively high number of entities. In other words, inter-ministerial and interagency cooperation – which is indispensable in modern crisis management –, and joint and coordinated engagement of military and civil capabilities was achieved, that labelled ‘Comprehensive Approach’ in scientific literature. Previously, the various ministries expressed concerns during the inter-ministerial discussions regarding the development of NCRMS because, in their view, the Ministry of Defence intended to introduce a ‘mandatory regime’ by using legislation to make the measures listed in the Collection of National Measures mandatory, and because that regime would be also inconsistent with domestic legislation and the distribution of powers and competences. In order to eliminate such concerns, a compromise was reached, under which the measures listed in the Collection should be regarded as samples and supplementary tools, instead of being mandatory, and they may be amended or replaced by entirely different provisions at any time. However, the ministries did not use this option during the Ukrainian crisis because the availability of adequately prepared measures made the performance of their tasks considerably easier, so they did not need to develop new measures within a matter of hours. Furthermore, those measures had already been discussed with all involved parties, meaning that all potential stakeholders had already agreed to it. It was the primary goal of introducing the NCRS and NCRMS to develop measures that are adequately prepared, discussed, and even exercised by the involved actors in advance,

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and which are on hand and can be applied immediately at any time. This possibility is especially useful in crisis situations when events unfold at extreme speed and the time period available for the preparation and making of decisions is radically shortened.

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Part II Forum: The XY Case

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The Case of X.Y. v. Hungary – A Judgment of the European Court of Human Rights on Pre-Trial Detention

Eszter Kirs and Balázs M. Tóth*

13.1

Facts of the Case

1

The applicant was arrested on charges of a series of car thefts on 15 November 2007. His pre-trial detention was ordered on 17 November 2007 due to the danger of absconding, collusion, and repetition of crime. The applicant’s pre-trial detention continued until 29 May 2008 when the strictest coercive measure was replaced by house arrest. Therefore, his pre-trial detention was upheld for six and a half months. Meanwhile, the applicant’s requests for release were rejected and pre-trial detention was repeatedly prolonged at the statutory intervals. He was not granted access to the evidence supporting his detention, and his relevant complaints were rejected by the decision-making authorities. Due to the circumstances of detention and the sexual assault suffered from fellow inmates, the psychological condition of the applicant deteriorated gradually as confirmed by official psychiatric expert opinions. The applicant’s house arrest was lifted on 26 June 2008 and was replaced with a restriction on leaving Budapest. On 15 November 2009, all restrictions on the applicant’s personal liberty were lifted.

13.2

Procedure at the Domestic and International Courts

On 17 November 2007, the Pest Central District Court ordered the applicant’s detention on remand, reiterating in essence the reasons in the prosecution’s motion, namely, the *

1

Eszter Kirs, PhD, Legal officer at the Hungarian Helsinki Committee. Adjunct professor of the Department of International Law at the University of Miskolc. Member of a defence team at the UN International Criminal Tribunal for the former Yugoslavia. Balázs M. Tóth, PhD, Head of the Law Enforcement and Human Rights Programme at the Hungarian Helsinki Committee. Assistant professor of the Department of Legal Theory and Sociology at University of Miskolc (2008-2013). This paper is the extended English language version of the following paper: ‘Az Emberi Jogok Európai Bíróságának ítélete az előzetes letartóztatásról – A személyes szabadsághoz való jog korlátozásának kritériumai a legszigorúbb kényszerintézkedés vonatkozásában’ published in the Jogesetek Magyarázata (Case Notes, Opten), 2014/1, pp. 78-84. The authors thank András Kristóf Kádár for his valuable comments. X.Y. v. Hungary, No. 43888/08, 19 June 2013.

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dangers of absconding, collusion, and repetition of crime. In the course of making its decision, the Court failed to take into account the particular circumstances of the applicant, i.e. that he was the father of a minor child and had a regular income out of which he was paying a mortgage. There was also reason to presume his willingness to cooperate with the authorities, since he had attended all court hearings in another criminal case conducted against him. At the same time, his alleged accomplice – who was accused with many more accounts of car theft than the applicant – was released on bail in October 2007 in spite of the facts that he had previously absconded, had no lawful income or any relative who depended on his support. The main difference between the two accused was that the alleged accomplice, unlike the applicant, had confessed to the crime. On 29 November 2007 the Budapest Regional Court rejected the applicant’s appeal reasoning that the preparations made by the applicant to buy property abroad substantiated the presumption of the danger of absconding and that the applicant might have a criminal lifestyle, a predisposition to repetition of crime, since there was another prosecution under way. The subsequent judicial decisions prolonging pre-trial detention and rejecting the applicant’s requests for release did not refer to any additional argument. Since the applicant was not granted access to evidence underlying his detention, he filed a complaint with the competent authorities on 18 December 2007, on 8 and 28 February, and on 28 March 2008. These complaints were also rejected. A decision issued on 14 February 2008 prolonged pre-trial detention only until 17 February, due to a typo. When the applicant asked to be released on 18 February, the detention facility rejected his request and turned to the Pest Central District Court which then corrected its own decision aiming to prolong pre-trial detention until 17 May 2008. On 11 March 2008, the Regional Court – the court of second instance – concluded that the District Court should not have corrected the decision on the prolongation of pre-trial detention since the correction amounted to a substantive amendment of the decision, and making such amendments went beyond the competence of the District Court. Nevertheless, the Regional Court upheld pre-trial detention. The applicant suffered from a personality disorder including fear of crowds and of being locked up. His psychological condition deteriorated even further as he was sexually assaulted by fellow inmates. These facts were confirmed by expert opinions and were indicated in the request for release filed on 3 April 2008. Again, this motion was rejected by the District Court – as well as the appeal by the Regional Court – based on the reasoning that the applicant could be provided with the necessary medical treatment within the health-care system of the detention facility. In its decision issued on 29 May 2008, the Regional Court held that the danger of absconding had lessened and the prolongation of pre-trial detention was not necessary any longer. The Regional Court also added that, taking into account the deteriorating health condition of the applicant and the incident of sexual assault, house arrest was the

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appropriate coercive measure. On 26 June 2008, the house arrest was lifted and replaced with a restriction on leaving Budapest. The lack of need for any coercive measure was declared on 15 November 2009 by the competent courts and all restrictions on the applicant’s personal liberty were lifted. The applicant turned to the European Court of Human Rights (ECtHR) on 2 September 2008, and his case was communicated to the Hungarian Government on 10 October 2011. The applicant argued that his detention between 18 February and 11 March 2008 violated Article 5 § 1 of the European Convention on Human Rights (hereinafter, ECHR).2 He presented his views as regards Article 5 § 3 and 4 of the ECHR based on the following grounds: 1. He debated that the precondition of pre-trial detention – i.e. a ‘reasonable suspicion’ of his having committed a crime – existed. Even the court of second instance ordering pre-trial detention found the evidence underlying such reasonable suspicion to be controversial. 2. The judicial orders prolonging his detention were not individualized, his personal circumstances were not taken into consideration, the risk of his absconding, collusion, and repetition of crimes were not convincingly demonstrated, and the decision-making judicial bodies failed to assess the possibility of applying less stringent, alternative coercive measures. The Hungarian Government argued that the Regional Court had not found the evidence against the applicant to be controversial and the personal circumstances of the applicant were taken into account by the courts, resulting in the termination of his pre-trial detention.3 3. The applicant argued that he was not granted access to the investigation files that are relevant to his pre-trial detention and, consequently, the authorities violated the principle of equality of arms. The Government, as a response, emphasized that the selection of the pieces of evidence relevant to pre-trial detention falls under the discretionary power of the prosecutor, and the decision-making judge received all such pieces of evidence.4 The applicant found the entire period of pre-trial detention unjustified and argued that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 5 of the ECHR since his alleged accomplice having a ‘more serious’ criminal record was released on bail. The applicant argued that he had been discriminated against on account of the fact that he had not confessed to the crime.5 The Second Section of the ECtHR delivered its unanimous judgment on 19 June 2013. 2 3 4 5

X.Y. v. Hungary, No. 43888/08, 19 June 2013, 26. Id., 30-35. Id., 43-48. Id., 53.

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13.3

The Reasoning of the ECtHR Judgment

13.3.1

Violation of Article 5 § 1 of the ECHR

For the purpose of evaluating the legality of detention, the ECtHR relies on Article 5 of the ECHR, as well as the compliance of domestic substantive and procedural laws with the very purpose of Article 5, i.e. the protection of individuals against arbitrariness. Accordingly, in the case of X. Y., it took into account that – according to the secondinstance Budapest Regional Court – the Pest Central District Court exceeded its competence when it prolonged the applicant’s detention on 18 February 2008. Hence the applicant’s detention between 18 February and 11 March 2008 was unlawful. Consequently, the ECtHR found that the detention during that specific period had no domestic legal basis and the principle of legality was violated together with Article 5 § 1 of the ECHR.6

13.3.2

Violation of Article 5 § 3 of the ECHR

The ECtHR maintained, in accordance with its previous case law, that the issue of whether any period of detention is lawful must be assessed in each case based on the thorough analysis of personal circumstances of the detainee. It is not sufficient to refer to the abstract notion of public interest, and the specific pieces of evidence must indicate the existence of a genuine public interest that outweighs the presumption of innocence and the rule of respect for individual liberty. The decisions of the relevant authorities made on the request for release must be based on specific facts and evidence underlying the need of detention. Reasonable suspicion of a crime is not a sufficient reason in itself to prolong detention. After a certain lapse of time, growing attention must be paid to the personal circumstances of the detainee and to the issue of whether the given circumstances justify the prolonged deprivation of liberty. In the course of deciding upon the issue of sufficient justification of detention, the ECtHR pays special attention to the question whether not the domestic authorities acted with ‘special diligence.’7 In the present case, the Court did not find that the authorities acted arbitrarily when establishing that there was a reasonable suspicion.8 Nevertheless, the ECtHR found the proceeding of the domestic authorities to be in violation of the ECHR because the authorities failed to give careful consideration to the personal circumstances – such as the gradually deteriorating psychological condition – of the applicant. According to the Court, even though the Hungarian authorities were not obliged to release the applicant or to order his medical treatment in a civil hospital, they 6 7 8

Id., 27-29. Id., 36. Id., 37-39.

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were obliged to consider alternative measures ensuring the applicant’s appearance at the trial, being aware of his psychological problems and the atrocity that he had suffered. The decision-making authorities failed to comply with this obligation and failed to consider alternative measures such as release on bail or house arrest throughout the 6 months and 11 days period of pre-trial detention. The ECtHR found that pre-trial detention was not a necessary coercive measure for the interests of criminal justice and therefore regarded it as a violation of Article 5 § 3 of the ECHR.9

13.3.3

Violation of Article 5 § 4 of the ECHR

The ECtHR pointed out in its judgment that courts deciding upon the legality of detention must provide due process guarantees. The proceeding must be contradictory and the equality of arms must be ensured. Accordingly, the accused must be granted access to the materials of the case. The access to the files must be granted also as regards the materials of investigation which include significant information in relation to the necessity of pretrial detention of the accused. The disclosure of evidence must take place in good time, prior to the applicant’s first appearance before the judicial authorities. In the present case, the authorities rejected the applicant’s complaints as regards the access to the case files, but did not deny his statements on the denial of access. The burden of proof was shifted to the Hungarian Government. The Government was unable to prove that the applicant was granted access to the documents. Therefore, the ECtHR held that there was a violation of the principle of equality of arms and Article 5 § 4 of the ECHR.10 As regards the prohibition of discrimination and Article 14 of the ECHR, the ECtHR found the complaint as manifestly ill-founded and rejected it.11

13.4

Ratio decidendi

The Second Section of the ECtHR held unanimously that the Hungarian State is responsible for the violation of Article 5 of the ECHR. It held that the respondent State was to pay EUR 18,000 as compensation for pecuniary and non-pecuniary damages and EUR 4,500 for costs and expenses. In accordance with its previous case law, the ECtHR pointed out that – with regard to the respect of right to liberty and the presumption of innocence – the prolongation of pretrial detention is not justified if the decision-making authority refers solely to the reasonable

9 Id., 40-42. 10 Id., 50-52. 11 Id., 53.

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suspicion of a crime and other abstract reasons. With the lapse of time, growing attention must be paid to the personal circumstances of the accused and to the issue of whether the interests of criminal justice can be served also by alternative coercive measures such as release on bail or house arrest. The procedure regarding the necessity of the prolongation of detention must be adversarial and must be conducted with respect to the principle of equality of arms and to the right of the accused to access the case files.

13.5

13.5.1

Comments on the Reasoning of the Judgment

Article 5 § 1 of the ECHR

The judgment (in our view and apart from the conclusions to be discussed later in the present paper) applies the legal standards developed by the case law of several decades correctly. This paper does not aim for providing an overall assessment of those legal standards, but does point out some essential principles. It is uncommon for the ECtHR to establish in cases concerning Hungary that there was a violation of the principle of legality in cases of pre-trial detention.12 However, such a violation was established by the Court in this case. The principle is composed of the following two elements: 1. The arrest must be based on domestic law and it must be conducted in full compliance with the relevant domestic legal regulations.13 2. The provisions of domestic law must comply with the ECHR, hence, they must meet the following ‘qualitative criteria’ deriving from the general requirement of the rule of law: a) the relevant provision must be codified by valid domestic laws, b) must be properly accessible, c) its enforcement must be foreseeable, d) it cannot imply the unlimited or unreviewable power of the executive authorities, e) and it must provide efficient guarantee against potential arbitrariness.14 The Hungarian legal regulation clearly meets requirement (2), while the violation of the principle of ‘in accordance with the law’ was committed in this case through the District

12 The single case where the Court held that there had been a violation of the principle of legality in the case of pre-trial detention: Kovács Ferencné v. Hungary, Appl. No. 19325/09, 20 December 2011. 13 See Kovács Ferencné v. Hungary, Appl. No. 19325/09, 20 December 2011, 18-19; Czine Ágnes – Szabó Sándor – Villányi József, Strasbourgi ítéletek a magyar büntetőeljárásban (Strasbourg Judgments in the Hungarian Criminal Procedure, HVG Orac, Budapest, 2008), p. 257. 14 Malone v. the United Kingdom, No. 8691/79, 2 August 1984, 67.

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Court’s violation of the domestic laws and the unlawful detention of the applicant between 18 February and 11 March 2008.15

13.5.2

Article 5 § 3 of the ECHR

13.5.2.1 The Length of Pre-Trial Detention The Strasbourg case law is less consistent regarding the length of pre-trial detention, but the fundamental principles have been established. In the course of assessing the issue of whether the length of pre-trial detention was reasonable, the ECtHR takes into consideration a number of factors, such as: (1) the complexity of the case,16 (2) the attitude of the applicant,17 and (3) the attitude of the authorities.18 According to the interpretation of Article 5 § 3, special diligence of authorities may be expected if the accused is in detention.19 A general rule cannot be set with regard to the reasonable length of pre-trial detention, but usually no acceptable reason can be demonstrated that would justify any pre-trial detention to be prolonged for over four years.20 In addition, considering the case law of the ECtHR, we can maintain that the Court may easily hold that there was a violation of Article 5 § 3 of the ECHR, if the pre-trial detention had been prolonged for over 2 years.21 Shorter length of pre-trial detention might also qualify as a violation of Article 5 § 3, if the detention cannot be justified by any reason. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.22 It is remarkable that in the present case the ECtHR qualified even 6 months as being unjustified.

15 Some cases where the quality of legal regulation did not comply with the ECtHR standards: Nasrulloyev v. Russia, No. 656/06, 11 October 2007, Gillan and Quinton v. the United Kingdom, No. 4158/05, 12 January 2010, Makaratzis v. Greece, No. 50385/99, 20 December 2004. 16 Zaprianov v. Bulgaria, No. 41171/98, 30 September 2004, 55-65, Bogdanowicz v. Poland, No. 38872/03, 16 January 2007, 47-53. 17 Assenov et al. v. Bulgaria, No. 24760/94, 28 October 1998, Koşti and others v. Turkey, No. 74321/01, 3 May 2007. 18 Toth v. Austria, No. 11894/85, 12 December 1991, Assenov and others v. Bulgaria, No. 24760/94, 28 October 1998, 157, Debboub alias Husseini Ali v. France, No. 37786/97, 11 September 1999, 46, Kalashnikov v. Russia, No. 47095/99, 15 July 2002 120, Vaccaro v. Italy, No. 41852/98, 16 November 2000, 43. Czine Ágnes – Szabó Sándor – Villányi József (2008), pp. 264-271. 19 Grád András, A strasbourgi emberi jogi bíráskodás kézikönyve (Handbook on Human Rights Jurisdiction of Strasbourg, Strasbourg Bt, Budapest, 2005), p. 182. 20 Tomasi v. France, No. 12850/87, 27 August 1992, 85-99. 21 David Harris – Michael O’Boyle – Colin Warbrick, Law of the European Convention on Human Rights. 2nd edition (OUP, Oxford, 2009), p. 181. 22 Rokhlina v. Russia, No. 54071/00, 12 October 2005, 67.

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13.5.2.2 The Ordering of Pre-Trial Detention: The Notion of Reasonable Suspicion In the present case, the ECtHR, after considering the issue of due diligence of the decisionmaking authorities, found nothing in the case file demonstrating that the domestic authorities acted arbitrarily when they established that there was a reasonable suspicion that the applicant had been implicated in a series of car thefts.23 This is a debatable statement since even the judgment itself refers to the fact that the Budapest Regional Court held that, when ordering pre-trial detention, the courts are not in a position to assess the evidence underlying the reasonable suspicion against the accused.24 This means that the Budapest Regional Court did not even assess the facts establishing reasonable suspicion. In our opinion, this itself resulted in the violation of Article 5 of the ECHR as regards the pre-trial detention ordered in the present case due to the following reasons. The ECtHR earlier provided the following definition on reasonable suspicion: ‘a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.’25 The wording of this definition clearly refers to the requirement that the issue of whether reasonable suspicion was given in a specific case must be assessed by a judge. Accordingly, the investigative judge is entitled and obliged to assess the evidence presented by the parties. Otherwise, it would make no sense to require the submission of evidence underlying reasonable suspicion, and pre-trial detention should be ordered even if the evidence presented did not prove the existence of reasonable suspicion or other statutory preconditions of ordering pre-trial detention in view of the investigative judge. This is the only interpretation that complies with the international standards of restriction of the right to liberty. Therefore, violation of the ECHR should have been established in the present case due to the fact that the decision-making court failed to assess the evidence concerning reasonable suspicion. This failure does not meet the requirement that the authorities of States Parties must proceed with ‘special diligence’ in the course of ruling on pre-trial detention.26 This conclusion reflects the view of the authors of the present paper and may be subject to debate. However, it is an unquestionable fact that the ECtHR failed to consider and qualify the acts of domestic authorities as to the question of whether the assessment of evidence had complied with the requirement of due diligence. 23 24 25 26

X.Y. v. Hungary, No. 43888/08, 19 June 2013, 37. Id., 9, 11. Fox, Campbell and Hartley v. United Kingdom, No. 12244/86, 12245/86 and 12383/86, 30 August 1990, 32. Jabłoński v. Poland, No. 33492/96, 21 December 2000, 80; Imre v. Hungary, No. 53129/99, 2 December 2003, 43.

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13.5.2.3 Prolongation of Pre-Trial Detention Out of the possible reasons of prolongation of pre-trial detention, the danger of absconding, gravity of charges, or potential sanctions in the abstract are clearly not sufficient arguments. The ECtHR pointed out in the case of Letellier v. France that such a danger cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial.27 According to the findings drawn in the case of Neumeister v. France, the possibility of absconding and the necessity of pre-trial detention must be assessed considering the personality, residence, income, occupation, and family and other ties of the accused.28 This principle may be described as the requirement of individualized decision-making. According to the judgment delivered in Svipsta v. Latvia, the judicial decision must specify the specific details taken into account by the judge, and the lack of such detailed reasoning in itself renders the detention unlawful, even if otherwise sufficient reasons were given for the justification of pre-trial detention. In the above case, the pre-trial detention of the applicant was prolonged on six occasions by the Latvian courts that issued decisions which included only brief, stereotypical formulae enumerating the statutory criteria. The Latvian Government argued during the Strasbourg procedure that this was not a significant issue since the decision-making courts listened to and read the parties’ submissions and delivered their decisions by carefully weighing all such submissions. The ECtHR rejected this argument, stating that: it is the wording of a judicial decision which most clearly reveals the precise intentions and reasoning of the court. In the instant case, not one of the six orders in question contained any indication that the judge who issued it had taken into consideration the arguments and specific facts submitted to the court.29 As regards the deliberation on the application of alternative measures, according to the findings drawn in the case of Ilowiecki v. Poland,30 under Article 5 § 3 of the ECHR, the

27 Letellier v. France, No. 12369/86, 26 June 1991, 43. 28 Neumeister v. Austria, No. 1936/63, 27 June 1968, 3-15. Francis G. Jacobs – Robin C. A. White, The European Convention on Human Rights (Clarendon, Oxford, 1996), pp. 90-98. 29 Svipsta v. Latvia, No. 66820/01, 9 March 2006, 130. 30 Iłowiecki v. Poland, No. 27504/95, 4 October 2001, 76.

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authorities are obliged to consider alternative measures of ensuring the appearance of the accused at the trial when deciding whether a person should be detained.31 The ECHR provides not only the right of the accused to be brought promptly before a judge or to be released pending trial, but also prescribes that the order to release may depend on such conditions that ensure the appearance of the accused at the trial. The ECtHR considers the health of the applicant in this respect. Having the relevant case law in mind, Article 5 § 3 of the ECHR cannot be interpreted so that it would oblige the authorities of States Parties to release the detained person due to his or her medical condition. However, a serious health problem the detainee may have must be given careful consideration in the course of deciding on the issue of whether detention can be replaced by alternative measures, since poor health condition may reduce the risk of both absconding and evading justice.32 Weighing the above features of the case, the ECtHR could not come to any conclusion other than holding that the failure to consider the possibility of alternative measures due to the deterioration of health resulted in pre-trial detention in violation of the Convention.

13.5.3

The Ignored Article 14

The failure of the ECtHR to evaluate the issue of the prohibition of discrimination is one of the weaknesses of the judgment. We share the applicant’s view that the fact that his alleged accomplice – who had more serious criminal record and was accused of more crimes even in the relevant case – was released on bail while he was detained should be qualified as a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 5 of the ECHR. According to the legal standard set by the ECtHR in the case of Rasmussen v. Denmark,33 a violation of Article 14 shall be established if the following four criteria are met: The case falls within the ambit of one or more of the other substantive provisions of the Convention. There was a difference in treatment of the affected individuals. The Court pointed out that there is no call to determine on what ground this difference was based, the list of grounds appearing in Article 14 not being exhaustive. The affected individuals were placed in an analogous situation. No objective and reasonable justification exists for the different treatment. Under the case law of the ECtHR, a difference of treatment is discriminatory for the purposes of

31 Mándi Veronika, ‘Alkotmányossági aggályok a szabálysértési őrizetbe vétel gyakorlata kapcsán’ (Constitutional Concerns with regard to the Practice of Petty Offence Arrest) – Büntetőjogi Szemle 2013/1-2, pp. 46-47. 32 See Jabłoński v. Poland, No. 33492/96, 21 December 2000, 84-85. 33 Rasmussen v. Denmark, No. 8777/79, 28 November 1984, 29-42.

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Article 14 if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realized.’ If the present case is assessed under the foregoing legal standard, the above conclusion would stand, i.e. that there was a violation of Article 14. The case falls within the ambit of Article 5 of the Convention since both individuals were detained, and the ECtHR found Article 5 to be applicable to the assessment of the case. The alleged accomplice of the applicant was released, while the pre-trial detention of the applicant was prolonged. According to the presented legal standard, the ground of differential treatment is irrelevant as any differentiation in terms of the conventional rights requires justification. In this regard, one probable reason can be pointed to: the accomplice confessed to the crime as opposed to the applicant. We discuss this issue under Point (4) of the present assessment. The situations the two affected individuals were in were analogous. Both of them were arrested on charges of a series of car thefts. They were subjected to prosecution for the same criminal offences in which they were allegedly accomplices. A reasonable justification for the different treatment – i.e. that the accomplice was released as opposed to the applicant – could have been that the danger of absconding or of the repetition of the crime was higher regarding the applicant. However, the particular circumstances of the applicant would have supported a different conclusion. He was the father of a minor child and had regular income out of which he was paying a mortgage. His intent to cooperate with the authorities could have been presumed since he had attended all the hearings in another criminal case conducted against him. By contrast, the alleged accomplice of the applicant was accused with even more accounts of car theft than the applicant and he had the record of previous absconding, and he had no legal income or any relative who depended on his support. Only one feature could be taken into account for the benefit of the accomplice, namely that he had confessed to the crime, which was the sole reason of his release. Bearing in mind all the personal circumstances indicating a lack of risk of absconding on the side of the applicant, it would be difficult to come to a different conclusion that his pre-trial detention was ordered due to the denial of confession. This is far from being a reasonable and acceptable ground for justification. No one can be obliged to confess to a crime because of the right to remain silent and the prohibition of required self-incrimination. Hence, the decision-making authority held the use of a fundamental procedural right against the applicant. Any distinction made on the basis of this ground cannot be regarded as justified and, consequently, the measure violated the prohibition of discrimination and Article 14 of the ECHR.

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Eszter Kirs and Balázs M. Tóth Certain facts of the case34 are particularly telling, namely, that the accomplice who had been released later absconded, contrary to the applicant who appeared at each and every procedural act even after his release.

13.6

Article 5 § 4 of the ECHR: Access to Case Files

The ECtHR held Hungary to be responsible for the violation of Article 5 of the ECHR in a number of cases. The conclusions drawn in the present case reveal that there are systemic problems in the application of pre-trial detention in Hungary as regards the compliance with the ECHR. The legal reasoning of the analyzed judgment has not been addressed with regard to the right of the accused to access the case files. The following paragraphs offer critical remarks on the earlier and current legislation, and this paper is concluded with a de lege ferenda proposal. The ECtHR held Hungary accountable for the violation of Article 5 § 4 of the ECHR on four occasions within the period of approximately one month. This was possible due to the fact that the affected accused persons had not been granted access to the case files and, therefore, were not able to challenge the legality of their detention.35 The reasons for that can be summarized as follows: In the course of criminal procedures in Hungary, the right of the accused to access the case files was de jure restricted, since it could not be exercised during the investigation, unless the investigative authority believed that exercising the right to access the case files did not endanger the interests of investigation. The relevant statutory provisions did not provide for any guarantee for preventing the investigative authorities from arbitrary concealment of the materials of the criminal case from the accused. This resulted in the practice that files were almost never disclosed to the accused during the investigation of particularly serious crimes. However, decision No. 166/2011 (XII. 20.) of the Constitutional Court pointed out, with reference to the case law of the ECtHR, that the

34 Information about the facts of the case were provided by the attorney of the applicant. 35 In each case, the ECtHR pointed out that procedural guarantees generally ensured in a judicial proceeding shall be enforced during the judicial procedure concerning detention. The proceeding shall be adversarial and the equality of arms shall be guaranteed. The principle of equality of arms is not respected if the defence lawyer is not granted access to the investigative files that are essential for the arguments on the legality of detention. The access to files shall be granted promptly so that the affected parties can get familiar with them before the judicial hearing. X.Y. v. Hungary, No. 43888/08, 19 June 2013, 50; A.B. v. Hungary, No. 33292/09, 16 April 2013, 36; Hagyó v. Hungary, No. 52624/10, 23 April 2013, 68; Baksza v. Hungary, No. 59196/08, 23 April 2013, 47.

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Therefore, as a principle, the right to access the files may be restricted only with regard to documents that are not needed for the justification of detention. The pool of these documents can be particularly small since most of the documents on file are relevant to the general (reasonable suspicion) and special conditions (those provided by Article 129 of the Code on Criminal Procedure) of pre-trial detention. Article 44 of Act CLXXXVI of 2013 on the amendment of certain acts on criminal matters amended the legal rules pertaining to the right to access the case files as stipulated in Article 211(1) of the Code on Criminal Procedure. The amendment entered into force on 2 January 2014. According to the current regulation in case of filing a motion for pre-trial detention, the investigative documents serving as basis for the motion shall be attached to the motion notice sent to the accused and the defense.37 The amendment was necessary because the previous provisions of the Code on Criminal Procedure were inconsistent with the provisions of Directive 2012/13/EU of the European Parliament and the European Council on the right to information in criminal proceedings, in addition to the Strasbourg standards. The Directive provides for unrestricted right of the accused and the defense to access those files which are essential for challenging the lawfulness of detention effectively. The right to access the documents of the criminal case can be restricted only if the accused is not detained and such access would lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security. [Articles 7(1) to (4)] According to the relevant provisions of the Directive, ‘access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence.’ [Article 7(3)]. It seems clear that the regulation introduced by the amendment of the Code on Criminal Procedure was a step forward, but some risk have remained and, in our view, the amendment has not yet achieved full compliance with the obligations deriving from the EU Directive that should have been fully implemented by 2 June 2014. Under the grammatical interpretation of the new rule, the prosecutor remained entitled to select from the

36 166/2011. (XII. 20.) AB hat. ABH, Vol. XX/12, 1314-1342. III/1. 37 Art. 211(1) of Act XIX of 1998 on the Code of Criminal Procedure.

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investigative documents and to attach to the disclosed motion for pre-trial detention only those documents that support the general and special conditions of pre-trial detention without attaching those that may be used to challenge the existence of the general or special conditions. This regulation should be replaced with a rule requiring the prosecutor to attach all investigation files to the motion for the order or prolongation of pre-trial detention, and the power to impose any limitation on the right to access should be conferred onto the investigative judge instead of the prosecutor. Accordingly, the accused in pretrial detention or house arrest would be granted full access to the documents of the investigation, except where the investigatory judge imposes any limitation onto that right upon the motion of the prosecutor, provided that certain files are irrelevant to the review of the legality of detention and the disclosure of the file would endanger the interests of investigation. Furthermore, the current regulation fails to provide expressis verbis that the accused and his attorney shall be granted access to the files promptly so that they can review the documents thoroughly before the hearing on the coercive measure. This norm also follows from relevant international standards. Moreover, adequate provisions should also be adopted to ensure that the relevant provisions of the Code on Criminal Procedure are also applied in cases where the arrested person38 files a complaint on the legality of the arrest. The need for such provisions is supported by the fact that arrest is also a type of detention where the access to files should be granted according to international standards, so that the legality of arrest can be efficiently challenged in a corresponding procedure. Considering that the complaint filed with regard to the legality of arrest does not need to be decided upon39 in cases where pretrial detention of the arrested person was requested by the prosecutor, this rule would be relevant only to cases where no such prosecutorial motion was filed. If a motion for pretrial detention is filed, the main rule would apply and sufficient time should be allowed to the accused before the hearing on pre-trial detention to exercise his right of access the files.

38 Id., Art. 126. 39 Id., Art. 195(6a).

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Ádám Békés*

14.1

The Convention and the Court in General

The Convention for the Protection of Human Rights and Fundamental Freedoms (better known as the European Convention on Human Rights, hereinafter the ‘Convention’) was set up in 1950, based upon the concept of an unique system, in which the essential human rights are to be declared in such manner that European citizens may apply directly to an international court in case these fundamental rights and freedoms have not been respected by one of the member states. Due to the permanent and ever rising will of the Parties to develop the practical implementation of human rights, nowadays 47 states participate in the Convention, the members also agreed to submit to international legal supervison of their obligation to secure the benefits defined in the Convention to everyone within their jurisdiction. Apparently it means that more than 800 million Europeans1 can exercise and if neccessary vindicate to themselves their fundamental rights directly via the protection machinery established in 1959 in Strasbourg, known as the European Court of Human Rights (hereinafter the ‘Court’). The main purpoese of the Court is to examine alleged violations and ensure that member States comply with their obligations under the Convention. Over the past 50 years of its existence the Court has dealt with more than 267,000 *

1

Ádám Békés is senior lecturer of the Péter Pázmány Catholic University Faculty of Law and Political Sciences Criminal Law Department since 2006, he has Ph.D. degree. Collaterally he also holds a practice as a lawyer, his legal office mainly dealing with criminal, international and commercial law cases was grounded in 2004. He is member of the Hungarian Criminal Law Association since 2007. Moreover at the same time in 2004 he graduated as economist from the Corvinus University Budapest. He carries out some researches relating to the European criminal law. Moreover the nationals of third countries living there or in transit and the legal entities located within the jurisdiction of a State Party, not to mention those persons who fall within their jurisdiction due to the extraterritorial acts committed by the member states to the Convention outside their respective territories. European Court of Human Rights, Bringing a Case to the European Court of Human Rights – A practical guide on admissibility criteria (with a foreword by Sir Nicolas Bratza), Wolf Legal Publishes, Strasbourg, 2011, p. 1. (hereinafter: ‘Bringing a Case to the ECHR’).

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applications and has delivered approximately 12,000 judgements. In regard of this overwhelming work load a number of reforms have had to be implemented in order to decrease the massive influx of individual applications ensuring the effectiveness of the supervisory system of the Convention. However despite of the innovations the Court may be described as a victim of its own success2 as on 1 January 2010 – compared to the previous years3 a multiplied measure of – 119.300 applications were pending before the Court. The main reason of the Court’s great succes is that it delivers legally binding decisions. On one hand it means that those States found to have breached the Convention are under an obligation to excecute the Court’s judements by taking the adequate – individual as well as general – measures to redress the violation, furthermore prevent any further infringement of the Convention from the same issue. Consequently on the other hand its the elementary interest of the Parties to ensure the compability of their own legislation with the Convention, which results in the trend that the Court through its judgements strives to harmonize the Contracting States’ legislation. Moreover one of the most important characteristics of the Court’s case law is its evolutive nature as ‘the Convention is a living instrument which […] must be interpreted in the light of present-day conditions’4 therefore ‘the impact of the Court’s judgements has repercussions for people’s everyday lives.’5 According to the aforementioned features, the judicial forum and the Convention together have clearly become an essential and powerful istrument for adressing new challenges and consolidating the rule of law and democracy in Europe. Naturally as part of its complex mechanism the Court has not only shed light on problems related to civil law issues but substantive and procedural criminal law as well. The most relevant provisions of the Convention in regard of criminal law are Articles 57, declaring the right to liberty and security, furthermore the right to a fair trial and the fundamental principel of nullum crimen sine lege. As Article 5 is one of the regulations bearing utmost importance from a criminal law aspect, the main purpose of the present study is to reveal its operation both in practice via submitting the related case law of the ECHR with special emphasis on one of the latest Hungarian cases, the Application No. 43888/08. On the contrary – as it was above mentioned – to ensure the effectiveness of the Court’s functioning and to avoid the controversy of regressum ad infinitum, procedural limitations

2 3

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Council of Europe, The European Court of Human Rights in Facts and Figures, Council of Europe Publishing, Strasbourg, 2010, p. 7 (hereinafter: The ECHR in Facts and Figures, 2010). According to the statics in 1995 the Court had to deal with only 709 applications, the vast majority of them issued by the prior Committee. V. Berger, The case-law of the European Court of Human Rights (Az Emberi Jogok Európai Bíróságának joggyakorlata), HVG-Orac, Budapest, 1999, p. 3. Judgement of 25 April 1978 in Tyrer v. UK, Series A No. 26, pp. 15-16, Para. 31; Judgement of 7 July 1989 in Soering v. the UK, Series A No. 161, p. 40, Para. 102; Judgement of 23 March 1995, Loizidou v. Turkey, Series A No. 310, pp. 26-27, Para. 71. The ECHR in Facts and Figures, 2010, id., p. 8.

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had to be introduced concerning indivual applications. Clearly, it would exceed the formal frame and direct scope of this study to expose the admissibility criteria in details, however, prior to the review of the provisions of Article 5, a bald statement of the facts seems to be neccessary in order to clarify the substance of this legal instrument.

14.2

Individual Applications – Admissibility Criteria

The vast majority – approximately 90%6 – of the individual applications are rejected without examined on the merits of the case due to lack of one of the admissibility criteria laid down by the Convention. These criteria are determined by the revised principels declared in Interlaken in Switzerland7 which manifested in the adoption of Protocol No. 14 to the Convention – which came into force on 1 June 2010 – introducing the new criterion of significant disadvantage. These requirements stipulated in Articles 34-35 of the Convention can be divided into 3 main groups, as procedural grounds for rejection, those related to the jurisdiction of the Court, and the others concerning the merits of the case.8 Prior to analysing these groups of inadmissibility reasons, it has to be emphasized that the right to apply to the Court guaranteed in Article 34 is absolute and admits of no hindrace,9 giving Europeans the genuine right to take effective legal action at international level. However it has been already recognized in the Mamatkulov and Askarov case10 that effectivity is one of the key components of the machinery for the protection of human

6

According to the statics submitted in the official guide of the ECHR 95% of the individual claims fail to satisfy one of the admissibility criteria, while Hungarian experts Kristóf András Kádár and Dániel Karsai reckon this proportion 80-90%. Bringing a Case to the ECHR, 2011, id., p. 3. A. K. Kádár & D. Karsai: Az Emberi Jogok Európai Bíróságának esetjoga a gyakorlat számára, Novissima Kiadó, Budapest, 2013, p. 10 (hereinafter: Kádár-Karsai, 2013). 7 On 19 February 2010 representatives of the State Parties met there to discuss the future of the Court. 8 This is official standpoint of the ECHR, while Kristóf András Kádár and Dániel Karsai define only 2 major groups as the criterion of the Court’s jurisdiction and the – both formal and substantive – requirements raised against the application itself. 9 For correspondence with the freedom to communicate with the Convention institutions in case of detention (also related to Art. 5) see Peers v. Greece, No. 28524/95, ECHR-2001-III, Para. 84, and Kornakovs v. Latvia of 15 June 2006, No. 61005/00, Para. 157. 10 Mamamtkulov and Askarov v. Turkey [GC], Nos. 46827/99 and 46951/99, ECHR 2005-I, Paras. 100, 122.

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Ádám Békés rights,11 therefore complaints in abstracto of a violation of the Convention are to be rejected as well as in case of12 the abuse of this right.13 As for the state of the applicants it has to be clarified that under Article 34 exclusively those can complain to the Court, who consider themselves victims of a breach of the Convention.14 Briefly, due to the fact that the victim status of the applicant is a fundamental element of the procedure, it has to be examined and ensured at all stages of the proceedings before the Court15 that the applicant can claim to be a victim of on alleged violation.16 It also has to be noted that the victim status is not permanent during the procedure, therefore several circumstances may lead to the loss of it.17 As the first step of submitting the causes resulting an application’s rejection, it is worth listing the procedural grounds for inadmissibility defined in Article 35 as the following: – non-exhaustion of domestic remedies18 11 On the contrary the Court also found in this judegement that the domestic authorities must refrain from putting any form of pressure on applicants in order to have the application be withdrawn or modified, meaning that direct and indirect measures as well are prohibited. Moreover in the Cotlet v. Romania case it was declared that the vulnerability of the applicant and the risk of influcing him or her especially in case of a pre-trial detention shall be considered by the Court with intense awareness. Mamamtkulov and Askarov v. Turkey [GC], Nos. 46827/99 and 46951/99, ECHR 2005-I, Para. 102, Cotlet v. Romania of 3 June 2003, No. 38565/97, Para. 71. 12 Meaning that complaints against a provision of domestic law only appearing to contravene the Convention (Monnat v. Switzerland, No. 73604/01, ECHR 2006-X, 31-32. Para.), or the applications aiming an actio popularis (judgement of 6 September 1978 in Klass and Others v. Germany, Serie A No. 28, 33. Para.; Burden v. the United Kingdom [GC], No. 13378/05, ECHR 2009, 33. Para.), are to be rejected. 13 Art. 35 § 3 of the Convention: judgement of 15 September 2009 in Mirolubovs and Others v. Latvia, No. 798/05., Para. 62. 14 Approaching the provison from an other aspect, it rules that national regulations and procedure moreover their conformity with the Convention can only be examined in respect of the scope of the application, and exclusively in such measure as the applicant could be held as victim of the alleged violation. A. Grád: A strasbourgi emberi jogi bíráskodás kézikönyve (Reference Book of Human Rights Jurisdiction in Strasbourg), Strasbourg Bt., Budapest, 2005, p. 64. (hereinafter: A. Grád, 2005.) 15 Judgement of 29 March 2006 in Scordino v. Italy, Appl. No. 36813/97, Para. 179. 16 The notion of victim is also interpreted by the Court in an unique way, without reference to the domestic provisons, resulting that 2 types of victims can be distinguished from the Court’s case-law such as direct, and indirect victim. In the first case, the act or omission in issue must directly affect the applicant, while in the second variant an individual application may be accepted also from a person not being directly affected by the alleged violation of the Convention, though providing that there is a personal and specific link between the direct victim and the applicant, e.g. the Court accepted the application of a wife concerning her husband’s compulsory detention in a psychiatric hospital under the breach of Art. 5. V. Judgement of 17 March 2009 in Houtman and Meeus v. Belgium, No. 22945/07, Para. 30. 17 The main pricipels of ceasing the victim status during the proceedings are laid down in the Burdov case (judgement of 7 May 2002 in Burdov v. Russia, No. 59498/00, Paras. 27-32), however for instance the death of the direct victim (Fairfield v. the UK (dec), No. 24790/04, ECHR 2005-VI), or in case of criminal proceedings the domestic acquittal of the applicant – as it compensates almost any breach of the relating Art. 6 of the Convention – may lead to the loss of victim status (judgement of 29 April 2008 in Aupek v. Hungary, No. 15482/05; Kulcsár v. Hungary of 24 January 2008, No. 37778/04, Para. 16). n. Kádár-Karsai, 2013, id., p. 27. 18 Interestingly the criterion of the exhaustion of domestic remedies seems to be one of the most disputed questions in the Hungarian applications concerning criminal procceedings, especially related to the institutions

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non-compliance with the six-month time-limit anonymous application redundant application (identical applicants, complaints or facts) application already submitted to another international body abuse of the right of application

The second group of the admissibility reasons are related to the jurisdiction of the Court and are also known as incompatibility based upon ratione personae, loci, temporis or materiae. From these provisons, in regard of the frame of the study, only the problems concerning criminal law, especially Article 5 are to be mentioned. The first issue worthy of analysing from a criminal law aspect occurs related to the temporal limitation of the Court’s jurisdiction in connection with pending proceedings or detention. Although the ECHR’s jurisdiction is limited to the period subsequent to the ratification of the Convention,19 the Court has frequently taken into account the state of the judicial procedure for guidance prior to the ratification.20 This manner of the Court is also applicable for cases concerning breach of Article 5. III pre-trial detention21 or even the conditions of detention under Article 3.22 However on one hand the temporal jurisdiction of the Court could not be established in a case regarding a procedural complaint pursuant to Article 5. V, where the deprivation of liberty occured before the Convention’s entry into force.23 On the other hand related to a case in which a person was convicted prior to the ratification date but the conviction was quashed after that date, the Court declared its jurisdiction to examine the complaint under Article 3 of Protocol No. 7.24 The second topic which is worth dealing with from the sphere of the Court’s jurisdiction is the question of ratione materiae as defined in Art. 35 III a) and Article 32 mainly in regard of the applicability of Article 6 (right to a fair trial) which results in the autonomous concept of civil rights and obligations and criminal charges. As for the civil head of the Article it has to be highlighted that generally it can be characterized with a pecuniary

19

20 21 22 23 24

of judicial review, appeal for new trial (both considered in general ineffective in the Bartos case), appearance of private party or substitute private accuser (found effective in both the Barta and Réti cases) and objection to the unreasonable continuance of the proceedings. See in: Judgement of 6 July 2006 in Árpádné Bartos v. Hungary, No. 9300/04. Judgement of of 10 April 2007 in Barta v. Hungary No. 26137/04. This principle was clearly declared in the Blecic v. Croatia case. Apparently however this date evidently differs in case of each State Parties, e.g. in Hungary the Convention came into force on 5 November 1992. Judgement of 8 March 2006 in Blecic v. Croatia, No. 59532/00, Para. 70, n. Kádár-Karsai, 2013, id., p. 31. Judgement of of 15 October 1999 in Humen v. Poland [CG], No. 26614/95., Para. 59, judgement of 10 December 1982 in Foti and Others v. Italy, Series A No. 56., Para. 53. Judgement of 30 November 2004 in Klyakhin v. Russia, No. 46082/99, Paras. 58-59. Judgement of 15 July 2002 in Kalashnikov v. Russia, No. 47095/99, ECHR 2002-VI, Para. 36. Judgement of 28 September 2006 in Korizno v. Latvia case (dec), No. 68163/01, n. Bringing a Case to the ECHR, 2011, id., p. 55. Judgement of 3 July 2008 in Matveyev v. Russia, No. 26601/02, Para. 38.

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dimension and with a special, broader notion of civil issues compared to the domestic jurisprudence. Upon this exceeeding interpretation of the provisions the Court found the civil head of Article 6. I applicable also to a civil-party complaint in criminal proceedings,25 or even to other not strictly pecuniary measures such as the right to liberty26 or prisoners’ detention arrangements.27 The concept of criminal charge has also an autonomous meaning, independent of the standardization adopted by the domestic legal systems.28 The notion of charge acccording to the Court’s related judgements can be defined as ‘‘the official notification given to an individual by the competent authority of an allegation that he/she has committed a criminal offence’ which can also be applied during the test whether ‘‘the situation of the suspect has been substantially affected.’29 The applicability criteria of the criminal head of Article 6 were clarified in the Engel and Others v. the Netherlands case30 as: – classification in the national law – nature of the offence – severity of the penalty that the person concerned risks incurring. The reason of the submission of the above mentioned facts is that – as a result of the extended interpretation of the Court’s practice – some requirements of Article 6, such as the reasonable–time provision or the right of defence also bear relevance at a pre-trial stage (inquiry, investigation), their applicability always depending on the special features of the proceedings and the circumstances of the case.31 It may seem therefore that there is a contrast manifested in the question of whether to apply Article 6. I with its extended content or Article 5 to a case at a pre-trial stage? The sub-paragraph c) of Article 5. I clearly allows the deprivation of liberty exclusively in case of criminal proceedings, moreover this provision is to be read in conjunction with sub-paragraph a) and with paragraph 3, forming a closed regulation in whole as it was stated in the Ciulla case.32 Consequently the autonomous notion of criminal charge can be considered relevant for the applicability of the provisions of Article 5 I a) and c) and III.33 On the other hand this results in the fact that detentions solely related to one of the grounds listed in the other sub-paraparagraphs of Article 5. I

25 Judgement of 12 February 2004 in Perez v. France [GC], No. 47287/99, ECHR 2004-I, Paras. 70-71. 26 Judgement of 7 January 2003 in Laidin v. France (No. 2.), No. 39282/98. 27 Judgement of 17 September 2009 in Enea v. Italy [GC] No. 74912/01, ECHR 2009, Paras. 97-107; Judgement of 6 April 2010 in Stegarescu and Bahrin v. Portugal, No. 46194/06. 28 Judgement of 26 March 1982 in Adolf v. Austria, Series A No. 49, Para. 30. 29 Judgement of 27 February1980 in Deweer v. Belgium, Paras. 42, 46; Eckle v. Germany, Para. 73. n. Bringing a Case to The ECHR, 2011, id., p. 67. 30 Judgement of 8 June 1976 in Engel and Others v. the Netherlands, Series A No. 22., Paras. 82-83. 31 Judgement of 28 October 1994 in John Murray v. the UK, Series A No. 300-A, Para. 62. 32 Judgement of 22 February 1989 in Ciulla v. Italy, Series A No. 148, Para. 38. 33 Judgement of 23 September 1998 in Steel and Others v. the UK, Reports 1998-VII, Para. 49.

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do not fall within the ambit of the criminal head of Article 6.34 The relation between Articles 6 and 5 IV is also worthy of clarification due to the close link between them in the sphere of criminal proceedings. These provisions pursue different purposes: Article 6 is not applicable in case of reviewing the lawfullness of a detention because it falls within the scope of Article 5, which can be therefore appreciated as lex specialis in relation with Article 6.35 At last the grounds for inadmissibility based on the merits of the case are to be mentioned such as the applications manifestly ill-founded and those cases lacking significant disadvantage. The term manifestly ill-founded may apply to the applications as a whole or to a particular complaint within the broader context of the case.36 The concept of the notion of manifestly ill-founded applications origins from the requirement of subsidiarity as one of the most relevant fundamental principles of the Convention. Briefly, it means that the Court may intervene only where the domestic authorities fail in their obligations.37 As for the notion of significant disadvantage which came into force with Protocol No. 14. on 1 June 2010,38 it is composed of three distinct elements: the strict requirement of significant disadvantage, and two so-called safeguard clauses. In the Korolev v. Russia case it was stated by the Court that despite of a real breach of the Convention from a solely legal point of view, the infringement should attain a minimum level of severity to warrant consideration by the Court generally – but not exclusively39 – measured from a pecuniary

34 Judgement of 30 July 1998 in Aerts v. Belgium, Reports 1998-V, Para. 59. 35 Judgement of 15 November 2005 in Reinsprecht v. Austria, No. 67175/01, ECHR 2005-XII, Paras. 36, 39, 48, 55. 36 Bringing a Case to the ECHR, 2011, id., p. 92. 37 In the broad category of manifestly ill-founded applications 4 main reasons can be recognized causing inadmissibility. The case-law of the Convention revealed the cause of fourth instance applications, emphasising that that the Convention’s protection machinery cannot serve as a court of appeal or in the same way as a Supreme Court. The explanation of this limitation is defined in Art. 19, declaring that the Court cannot exceed the boundaries of the general powers delegated to it, futhermore that the autonomy of the national legal systems are to be respected by the Court as well. Therefore the Court is exclusively qualified to deal with errors of facts or law allegedly commited by a national court, only in case that it may reach the level of infringement of the rights and freedoms declared in the Convention. The second type of manifestly ill-founded applications are those clearly lacking any kind of violation of the Convention, also the cases in which no appereance of arbitrariness or unfairness can be revealed, or when it is obvious that the interference complained of was proportionate, at last those cases in which a legal standpoint of refusing the Convention’s violation can be established relying on the former case-law of the Court (identical cases). The last two groups formed from manifestly ill-founded applications, are the unsubstantiated complaints lacking evidence, and the applications clearly confused or far-fetched. 38 It is worth mentioning that the Court started to apply the new requirement rapidly, as the first rejection based upon this provision was delivered exactly on 1 June 2010, the day of Protocol No. 14. coming to effect. A. Grád & M. Weller: Reference Book of Human Rights Jurisdiction in Strasbourg (A strasbourgi emberi jogi bíráskodás kézikönyve), 4th edn, HVG-Orac, Budapest, 2011, 79. (hereinafter: A. Grád & M. Weller, 2011). 39 Judgement of 19 January 2010 in Bock v. Germany, No. 22051/07.

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Ádám Békés aspect.40 The safeguard clauses on one hand are meant to ensure that an applicaion will not be declared inadmmisible if respect for human rights as declared in the Convention or the Protocols thereto requires an examination on the merits of the case. Apparently this provision can only be applied in case questions of a general character would arise, e.g.: clarifying a State Party’s obligations or to induce the respondent State to resolve a fundamental deficiency affecting people in the same position as the applicant.41 On the other hand the second safeguard clause’s function can be defined as to have it examined by the Court whether the complained case has been duly considered by a domestic tribunal. This provision can be considered as an other manifestation of the principel of subsidiarity requiring that an effective remedy against violations be available at national level.42

14.3

The Right to Liberty and Security in General

As the main scope of this study is to submit the considerations and consequences of the judegement in No. 43888/08 application of 19 March 2013, it seems to be vital to review the provisions of Article 5 in a general manner as well. Article 5. I implements specially the notion of deprivation of liberty detailly defined by the following a-f) sub-paras.43 As a first step of analysing these provisions the Guzzardi case has to be highlighted in which the Court distinguished between restriction and deprivation of liberty, stating that only the latter one falls within the scope of Article 5. The starting point in the examination of a given measure shall be the victim’s concrete situation, though account must be taken of a whole range of criteria such as type, duration, effects and manner of implementation also.44 Moreover the main purposes of the provision were also laid down in this judegement declaring that Article 5 I is contemplating the physical liberty of the person, its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion.45 In a Belgian case it was also emphasized by the Court 40 For the minimum level of financial loss which can be considered severe, see cases: Judgement of 24/05/2011 in Ionescu v. Romania, Appl. No. 24916/05, Judgement of 23/09/2010 in Vasilchenko v. Russia, Appl. No. 34784/02. 41 Bringing a Case to the ECHR, 2011, id., p. 103. 42 Judgement of 1 July 2010 in Korolev v. Russia, Appl. No. 25551/05. It was also stated in the judgement of 14 December 2010 in Holub v. Czech Republic case that the case itself in the more general sense – and not the ‘application’ in its legally closed notion – needs to have been duly examined by the domestic court. 43 The Hungarian translation deals with the notions letartóztatás as equivalent of arrest, and őrizetbe vétel as synonym of detention. Lamentadly this is an unfortunate translation as the original meaning of detention is broader than the Hungarian expression. Grád, 2005, id., 148, A. Grád & M. Weller: 2011, id., p. 175. 44 However it was also noted that difference between deprivation of and restriction upon liberty is none the less merely one of a degree or intensity, and not one of nature or substance, which relativeness may lead in borderline cases to the fact that the distinction made is purely based upon the Court’s opinion. 45 Judgement of 6 November 1980 in Guzzardi v. Italy, Series A No. 39, pp. 33-35, Paras. 92-95, 95.

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that the fact of willing consent to incarceration does not indisputably mean lack of deprivation of liberty: the authorities measures shall always comply with Article 5, even in case of surrender or cooperative detainees.46 However it is obvious from the wording of Article 5 I that there are several cases when providing the specific requirements mentioned in the provisions, deprivation of liberty can be considered lawful. The legitimacy of all the cases listed in the a-f) sub-para.s is based upon the criterion of a procedure prescribed by law. The notion of this requirement origins from the Court’s will to refer back to national law, laying down the obligation to ensure the conformity of both substantive and procedural domestic law with the Convention. Consequently it was stated by the Court that failure to comply with domestic law entails a breach of Article 5 and therefore it always must be ascertained whether national law was correctly applied.47 Moreover it is also the task of the Court to distinguish cases of error from those of intentional infringement of procedure prescribed by law,48 which especially bears utmost importance in cases in connection with such sensitive measures resulting deprivation of liberty. Due to these consequences it was noted in the Betham case that a period of detention will in principle be lawful if it is carried out pursuant to a court oder, on the contrary the error of the court under domestic law not neccessarily affect the validity of the detention.49 Although is has to be truly emphasized that even exceeding the prescribed period of detention in custody entails itself a violation of Article 5. I c) as it was first clearly stated in the K.-F. v. Germany judgement.50 Moreover in regard of detention the Court also pointed out in the Kawka v. Poland case that: the lawfulness of detention under domesic law is the primary, but not always a decesive element […] [however it has to be examined that the measure] was compatible with the purpose of Article 5, para. 1, of the Convention, which is to prevent persons from being deprived of their liberty in an abitrary manner.51 The Court summarized the criteria of a procedure prescibed by law in the Dougoz v. Greece judgement52 as the requirement that any arrest or detention have a legal basis in domestic law, which shall be sufficiently accessible and precise, in order to avoid all risk of arbitrariness.

46 47 48 49 50 51 52

Judgement of 28 May 1970 in Chahal v. the UK of 15 November 1996, Reports 1996-V, Para. 118. Judgement of 18 June 1971 in De Wilde, Ooms and Versyp v. Belgium, Series A No. 12. Judegement of 27 September 1990 in Wassink v. the Netherlands, Series A185-A, Para. 41. Judgement of 18 December 1986 in Bozano v. France, Series A No. 111, p. 23, Para. 55. Judgement of 10 June 1996 in Betham v. the UK, 1996-III, 765 p., Para. 42. Judgement of 27 November 1997 in K. – F. v. Germany, No. 25629/94, Appl., Paras. 70-73. Judgement of 9 January 2001 in Kawka v. Poland, No. 25874/94, Appl., Para. 48. Judgement of 6 March 2001 in Dougoz v. Greece, No. 40907/98, Para. 55.

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The cases of deprivation of liberty provided for in Aricle 5 I a-f) are listed exhaustively, therefore they must be given a strict interpretation as it was stated in the Ciulla v. Italy case.53 ‘However, the applicability of one ground does not neccessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub-para.’54 In accordance with the study’s quantitative limits, only the provisions related to the case submitted under the 4. subtitle are to be analysed in detail, focusing on the c) point of Article 5. I. At first the notion of reasonable suspicion has to be clarified as key component of the whole regulation regarding the different types of detention. It is worth citing the considerations of the Court stated in the Fox, Campbell and Hartley v. the UK judgement:55 the reasonableness of the suspicion on which an arrest [detention] must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5. I […] a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (…) what may be regarded as ‘‘reasonable’ will however depend upon all the circumstances. On the contrary the Court also lays emphasis on that the Convention should not be applied as a legal instrument for putting disproportionate difficulties in the way of the police authorities of the Member States in taking effective measures to counter criminality. Another fundamental requirement for a detention allowed by the Convention is its legality. This criterion can be defined from two aspects: 1) the detention ordered shall be

53 Judgement of 22 February 1989 in Ciulla v. Italy, Series A No. 148, p. 18, Para. 41. 54 The justifying reasons for detention as appraised in a-f) sub-paras. can be listed in the following: a. Detention possible after conviction by a court b. To secure the fulfilment of an obligation prescribed by law c. For the purpose of bringing a person before the competent legal authority when he/she has or on reasonable suspicion of having comitted an offence d. A minor detainee in the context of supervised education or for the purpose of being brought before a court e. Preventative detention of persons of unsound mind, alcoholics, persons suffering from infectious diseases or vagrants f. Arrest and detention of a person in order to prevent him/her from unlawfully entering the territory, or against whom expulsion or extradition proceedings are pending. G. Dutertre: Key case-law extracts European Court of Human Rights, Council of Eurpe Publishing, Strasbourg Cedex, 2003, pp. 98-124. A. K. Kádár & E. Kirs & A. Lukovics et al.: Az emberi jogok európai biróságának előzetes letartoztatással kapcsolatos gyakorlata, Helsinki Committee, Budapest, 2014. (hereinafter: A. K. Kádár & E. Kirs & A. Lukovics et al., 2014) p. 8. 55 Judgement of 30 August 1990 in Fox, Campbell and Hartley v. the UK, Series A No. 182, p. 16, Paras. 32-34. As one of the latest cases related to the lack of this criterion see: Stepuleac v. Moldova, Appl. No. 8207/06.

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based upon and without exceptions comply with domestic law56 2) moreover the national regulation shall comply with the provisions of the Convention, meaning that it shall fulfil some essential quality criteria.57 However the Court found in the Zirovnicky v. Czech Republic case58 that a detention ordered in compliance with the domestic law solely based upon reasonable suspicion may also be considered as violation of the Convention. Namely for the adequacy of a detention it is also required to prove legitimate purpose of the measure as the detention itself shall be reasonably substantiated.59 In the following the considerations of the Court in connection with Article 5. I c) – as one of the most relevant provisions concerning the aim of the study – are to be mentioned. Naturally detention shall form part of a criminal context, meaning that the sub-pragrapgh only permits deprivation of liberty only in connnection with criminal proceedings […] [and] must be read in conjunction both with sub-paragraph a) and with paragraph III, which forms a whole with it,60 manifested in the requirement of the facts invoked to be reasonably considered as falling under one of the sections describing criminal behaviour in the national Criminal Code.61 Consequently there could clearly not be proven a reasonable suspicion if the acts or facts invoked against a detained person did not constitute a crime at the time when they occured. In case of this type of detention the reasonablenes of the suspicion is measured from two aspects by the Court. The first acceptable reason for detention – as it was stated in the Fox, Campbell, and Hartley v. the UK case – is that the person concerned has committed an offence.62 The other cause for the acceptance of deprivation of liberty is when there are reasonable grounds to believe that it is neccessary to prevent the detainee from commiting an offence or abscending.63 Moreover to prove legitimate purpose of the measure, the 56 Stated also in the judgement of 20 December 2011in Ferencné Kovács v. Hungary, Appl. No. 19325/09. 57 Apparently this requirement does not concern those states governed by a constant rule of law, however it is still an actual challenge in case of Eastern-European countries, mainly in regard of Russia. See its actuality in the judgement of 11 October 2007 in Nasrulloyev v. Russia, ECHR-2007, Appl. No. 656/06. 58 Judgement of 21 February 2011 in Zirovnicky v. Czech Republic, Appl. No. 23661/03. 59 A. K. Kádár & E. Kirs & A. Lukovics et al., 2014, id., p. 10. 60 Judgement of 22 February 1989 in Ciulla v. Italy, Series A No. 148, Para. 38. 61 Judgement of 19 October 2000 in Wloch v. Poland, Appl. No. 27785/95, Para. 109. 62 See: the judgement of 16 October 2001 in O’Hara v. the UK, Appl. No. 37555/97, the judgement of 1 March 2001 in Bekrtay v. Turkey, Appl. No. 22493/93. 63 As it was found in the Eriksen v. Norway case: ‘in view of the nature and extent of the applicant’s previous convinctions for threatening behaviour and physical assault and his mental state at the relevant time, there were substantial grounds for believing that he would commit further similar offences […] sufficiently concrete an specific to meet the standard enunciated by the Court in the Guzzardi judgement.’ Judgement of 27 May 1997 in Eriksen v. Norway, Reports 1997-III, Paras. 86-87.

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detention shall be effected in order to bring the person concerned before the competent legal authority.64 In conjunction with this it has to be highlighted that an arrest followed by custody, and then by release without charge or without being brought before the competent legal authority, in lack of suficient grounds, does not entail an infringement of Article 5.65 As regards the quality criterion the domestic law regulation – on which the detetion is based upon – shall satisfy, the Court held that the national provisions shall be sufficiently clear.66 Article 5. § II declares the right of the detainee to be properly informed of the charges, meaning that the mere reference to the legal basis for the arrest or detention is ineffective,67 pieces of information given to persons who have beeen arrested shall relate to both factual and legal matters,68 however a particular form of the coverage is not required.69 Article 5. III shall be read in conjunction with paragraph I as the mere purpose of this provison one hand is to constitute the legal basis of release from detention, on the other hand to ensure an additional way to legitimate the measures taken. The Court developed the practical concept of this provision in the Aquilina v. Malta judgement70 in which it was stated that ‘‘provisional release once detention ceases to be reasonable’ is requiered and it was also found that the right to ‘‘be brought promptly before judge and to be tried within a reasonable time’ is of high importance, however detention shall be assessed in each case according to its special features. The operation of the para. was summarized in the Labita v. Italy case71 as the Court held that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.72 It was stated that it is the obligation of the national judicial authorities to ensure that the pre-trial detention of a suspect does not exceed a reasonable time. After that can be the persistence of reasonable suspicion that the person arrested has committed an offence be examined as a condition sine qua non for the lawfulness of the measure, which may however cease to suffice after a certain lapse of time. In such cases, the Court must establish whether the other grounds provided by the judicial authorities continued to justify

64 Judgement of 27 November 1997 in K. – F. v. Germany, Appl. No. 25629/94, Reports 1997-VII, Paras. 5960. 65 Judgement of 29 November 1998 in Brogan and Others v. the UK, Series A No. 145-B, Para. 53. 66 Judgement of 31 July 2000 in Jecius v. Lithuania, Appl. No. 34578/97, Para. 59. 67 Judgement of 28 October 1994 in Murray v. the UK, Appl. No. 14310/88, Series A No. 300-A, Para. 76. 68 Judgement of 30 August 1990 in Fox, Campbell and Hartley v. the UK, Series A No. 182, p. 19, Para. 40. 69 Judgement of 11 July 2000 in Dikme v. Turkey, Appl. No. 20869/92, Paras. 54-57. 70 Judgement of 29 April 1999 in Aquilina v. Malta, Appl. No. 25642/94, Reports 1999-III, Para. 47. 71 Judgement of 06 April 2000 in Labita v. Italy, Appl. No. 26772/95., Para. 152-153. 72 According to the judgment of 26 January in W. v. Switzerland 1993, Series A No. 254-A, p. 15, Para. 30; Judgement of 21 December 2000 in Jablonski v. Poland, Appl. No. 33492/96., Para. 79.

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the deprivation of liberty.73 In case of the grounds being ‘relevant’ and ‘sufficient’, the Court shall also ascertain whether the competent national authorities displayed ‘special diligence’74 in the conduct of the proceedings.75 It also needs to be examined whether other measures than incarceration which would be sufficient in the given case are available in the domestic law76 or whether the detainee could be released, especially accompanied with the setting of a bail.77 The right to take proceedings in respect of detention is declared in Article 5. IV which provision has an unique place and role within the examined regulation, therefore it seems to be relevant to clarify the interactions of paragraph IV with the other parts of Article 5. In case of the relation between paragraph I and IV the ‘question arises: does IV require that every person detained for whatever reason be entitled to have the legality of his detention reviewed?’78 The negative answer was given in the De Wilde, Ooms and Versyp v. Belgium judgement79 constituting the theory that the control required by the provision is incorporated in the control under paragraph I particulary in connection with criminal convinctions.80 This statement is quite controversial in the light of the Court’s legal practice, the conclusion may be that the applicability of this provision depends on the special features of each cases, and domestic regulations. In the Van den Brink v. Netherlands case it was held by the Court that the cummulative application of paragraphs III and IV is acceptable. As for the content of the provision, the Convention clearly reqiures an effective and available remedy during which the lawfulness81 of the detention shall be examined speedily82 by a judicial body.

73 Although according to the Court’s case-law it seems that when the duration of detention exceeds 2 years, the violation of the Convention could be affirmed. A. K. Kádár & E. Kirs & A. Lukovics et al., 2014, id., p. 20. 74 Judgement of 21 December 2010 in Szepesi v. Hungary, Appl. No. 7983/06, Paras. 23-25. 75 Judgment of 24 August 1998 in Contrada v. Italy, Reports 1998-V, p. 2185, Para. 54. Judgment of 23 September 1998 in I.A. v. France, Reports 1998-VII, pp. 2978-79, Para. 102. 76 See: Judgement of 11 January 2011 in Darvas v. Hungary, Appl. No. 19547/07, Paras. 27-29. This priciple complies with the Hungarian legal practice as declared e.g. in Bkv No. 99, BH2007.216. See: the judgement of 26 July 2001 in Kreps v. Poland, Appl. No. 34097/96, Para. 43. 77 The related principles stated in the judgement of 15 November 2001 in Iwanczuk v. Poland, Appl. No. 25196/94, Paras. 66-70. 78 G. Dutertre: Key case-law extracts European Court of Human Rights, Council of Europe Publishing, Strasbourg Cedex, 2003, p. 149. 79 Judgement of 28 May 1970 in De Wilde, Ooms and Versyp v. Belgium, Series A No. 12, Para. 76. 80 On the contrary exclusively the fact that a decision was issued from a court does not cease the opportunity guaranteed in the Para. (4) as it would be contrary to the objec and purpose of it. Judgement of 24 June 1982 in Van Droogenbroeck v. Belgium, Appl. No. 7906/77, Series No. 50, Para. 45. V. Berger: Az Emberi Jogok Európai Bíróságának joggyakorlata, HVG-Orac, Budapest, 1999, pp. 126-131. 81 The notion of lawfulness under this para. has the same meaning as in case of Para. (1). Judgement of 29 November 1998 in Brogan and Others v. the UK, Series A No. 145-B, Para. 65. 82 Being in compliance with the Hungarian legal practice: BH2009.43.

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The last paragraph of Article 5 declares the right to an enforceable claim for compensation83 by the victims of a deprivation of liberty effected in conditions contrary to the Convetion before the domestic courts.

14.4

Hungary: Right to Liberty and Security Ensured?– Focusing on Application No. 43888/08

In the previous sub-titles of the present study the general principles and basics of the Court’s procedure related to Article 5 have been submitted in order to make it understandable the following review of the case of X.Y v. Hungary (Application No. 43888/08) and its consequences.

14.4.1

Factual Background

The application was lodged on 2 September 2008 by a Hungarian citizen complaining under Article 5. I of the Convention stating that between 18 February and 11 March 2008 his detention had been unlawful. Moreover in his view this temporal duration of the detention realized breach of Article 5. III as it could be considered an unreasonably long time. Furthermore from his point of view the equality of arms had not been respected by the authorities when he had been challenging his detention, because the access to the relevant material of the investigation was not ensured, these circumstances together also realizing the violation of the Convention pursuant to Article 5. IV. In the application the breach of Article 14 read in conjunction with Article 5 was assigned as his alleged accomplice with a more severe criminal background, had been released on bail unlike the applicant, showing discrimination against him.84 Due to the infringements of the Convention the applicant claimed EUR 10,344 in respect of pecuniary damage, and further EUR 20,000 in respect of non-pecuniary damage and EUR 5,800 for the costs and expenses incurred before the Court. The background of the case is that the applicant was arrested on 15 November 2007 on charges of a series of car thefts, in the prosecution’s ensuing motion to have him detained on remand, the dangers of absconding, collusion and repetition of crime were referred to. The defence argued even the existence of reasonable suspicion of commiting any criminal

83 However there can be no question of compensation where there is no pecuniary or non-pecuniary damage to compensate. Judgement of 27 September 1990 in Wassink v. the Netherlands, Series A No. 185-A, p. 14, Para. 38. 84 The applicant submitted that an alleged accomplice, although he had previously absconded, had no legal income or employment and had no minor children, had been released on bail in October 2007 – due to the fact that, unlike him, tha accomplice had confessed to the crime with which he was charged.

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offence, and the neccessity of the detention since the applicant had a settled life in Hungary with a minor child and regular income these circumstances making the danger of absconding insignificant. Moreover as all evidence had already been seized, the inteference with witnesses or repetition of any crime was not plausible. Taking into account all these circumstances due to the defendant’s legal standpoint the pre-trial detention was unsubstantiated and should have been substituated by a less coercive measure, if neccessary at all. This argument was rejected by both the first and second-instance court (concerning the appeal of the defence). The Regional Court pointed out in its decision about the appeal that the fact that the applicant had made preparations to buy property abroad was sufficient to substantiate the danger of absconding, moreover there was another prosecution under way impressing that the applicant might have a criminal lifestyle, a predisposition to repetition of crime. Therefore as the criterion of the reasonable suspicion could not be eliminated by the defence, the pre-trial detenion was repeteadly prolonged despite of the fact that the applicant complained three times to the authorities that he had not been granted access to the relevant pieces of evidence underlying his detention. These complaints were all refused lacking any statement or evidence that such an access had actually been ensured. The continuation of the case is truly special and interesting: on 8 February 2008 a psychiatric opinion about the applicant was submitted, revealing personality disorder (including fear of being locked up) which as the opinion held was the result of the detention. A further expert opinion85 even specified that the applicant had suffered sexual assault from fellow inmates, which had aggravated his psychological imbalance. Meanwhile an other prolongation order valid until 17 February 2008 was issued, however the release on 17 February failed due to a mistyped notification ordering the detention until 17 May rather than February. The first-instance court corrected the order on the following day, however the Regional Court on appeal reversed this decision due to obvious lack of competence as the first-instance court could not have corrected the operative part of its order because it is subject to a reversal within the jurisdiction of the Regional Court. On 3 April 2008 the applicant filed a request for release, which was rejected by the District Court. Consequently in his appeal, he stressed that his tolerance of detention had diminished on account of the psychological problems he had. The Regional Court also rejected the appeal, being satisfied that the applicant’s condition could be properly treated within the penitentiary health system. Further complaints were issued by the applicant’s legal representative emphasising that the resultant situation ran counter to both the applicant’s rights and the interests of the investigation. Despite of the above mentioned facts the applicant’s pre-trial detention continued until 29 May 2008 while the defence repeatedly made references to the absence of concrete elements, underlying the fundamental criterion of reasonable suspicion against the applicant 85 Issued on 16 March 2008.

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and to his personal circumstances not in the least warranting his continued detention. According to the opinion of the applicant the courts had rejected these arguments in rather stereotyped decisions. At last on 29 May 2008 the Regional Court replaced the applicant’s detention with house arrest. It held that the danger of absconding had lessened to an extent that house arrest was sufficient, especially in view of the indecent assault the applicant had suffered from fellow inmates, moreover the time that had elapsed, and the applicant’s settled family and personal circumstances, and the fact that his health had seriously deteriorated. Then on 26 June 2008 the house arrest was lifted and replaced with a restriction on leaving Budapest. On 15 November 2009 all restrictions on the applicant’s personal liberty were lifted. A bill of indictment against the applicant and ten co-defendants was filed with the Buda Central District Court on 11 December 2009, the trial of the case is pending.

14.4.2

Legal Standpoints of the Parties

The applicant first of all complained that his detention between 18 February and 11 March 2008 had been unlawful in breach of Article 5. I c). Furthermore the applicant stated also that his entire detention on remand apart from the mentioned date had been unjustified. The Hungarian Government did not contest the first statement, although argued that an official liability action should have been filed in order to exhaust domestic remedies. The unjustified duration of the pre-trial detention realized from the applicant point of view the violation of Article 5. III, moreover the decisions prolonging his detention had not been individualized. The Government argued that the criterion of reasonable suspicion required as a general condition for the measure was satisfied as certainity in this regard was not requisite or even possible at such an early stage of the investigation and the applicant’s personal circumstances had duly been considered, which had led finally to his release. From the applicant’s standpoint the pinciple of equality of arms declared in Article 5. IV had been infringed due to the fact that when he had been challenging the detention, he had no access to the relevant material of the investigation. The Government contested this argument. Finally the applicant referred to the alleged breach of Article 14 in regard of the release of his accomplice being dicriminative in his view.

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14.4.3

The Right to Liberty and Security in Practice – Focusing on Application No. 43888/08 and the Latest Case Law of the ECHR The Court’s Statements

As it was submitted under the second sub-title of this study in case of an indivial application at first the Court has to decide in the matter of admissibility in regard of each alleged infringements of the Convention. Regarding the breach of Article 5. I the real question was whether the domestic remedies had been exhausted. The Court emphasized that the existence of such remedies shall be certain not only in theory but also in practice, and in the present case – due to the fact that any kind of tort action with a reasonable porspect of success would exclusively be available after the termination of the criminal proceedings – the remedies cannot be considered as available and sufficient. Therefore this complaint could not be rejected. In case of the violation of Article 5. III the Court stated that the complaint cannot be considered as manifestly ill-founded therefore it was admissible. In regard of the third complaint of the applicant based upon the breach of Article 5. IV the Government again argued that an action for compensation should have been filed. As the applicant having failed to do so he had not exhausted domestic remedies, resulting inadmissibility. On the contrary at the time of the case – which was prior to the Consitunial Court Decision No. 166/2011 endorsing the principles enounced by the Court in the case of Nikolova v. Bulgaria86 – it was ambiguous under the domestic law whether or not a suspect in pre-trial detention had a right of access to the documents serving as the basis for his detention.87 Therefore any tort action established on the infringement of this right, had little prospect of succes. Moreover the Government did not produce any evidence to show that such an action has proved effective in similar cases. Consequently, the Court held that this complaint could not be rejected as well. On the other hand in case of the alleged violations of Article 5. I c) regarding the whole duration of the detention and of Article 14, the Court found the complaints manifestly ill-founded and hence inadmissible.88 Regarding the merits of the complaints, in case of the detention between 18 February and 11 March 2008 the violation of the Convention’s provisions was found to be evident as the first-instance court exceeded its competence – raising also the prohibited danger of arbitrariness – resulting that the detention during this period was devoid of a legal basis in the national law. 86 Meaning that there shall be a virtually effective and sufficient form of remedy to challenge the legality of the detention, which shall be examined by court or independent judicial body. During this examination guarantees of a judicial procedure as its adversarial feature and the direct access to the material of the investigation relevant in scope of the detention’s legality, shall be ensured. Judgement of 25 March 1999 in Nikolova v. Bulgaria, Appl. No. 31195/96, ECHR 1999-II., Para. 58. 87 Theoretically the access itself was ensured in the Code of Criminal Procedure, however it was also limited to those pieces of evidence considered relevant in regard of the basis of the detention. Moreover the selection of those pieces was int he public prosecutor’s discretion. 88 The measure of detention in general, due to the satisfaction of the criterion of reasonable suspicion and given the fact that the applicant has already been prosecuted for several counts of car theft, was found to be justified. The complaint about discrimination was held to be simply unsubstantiated.

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In case of the alleged breach of para. (3) the Court held that the main question is that whether the requisite criterion of reasonable suspicion existed, moreover whether the temporal duration of the pre-trial detention exceeded the criterion of reasonableness. Furthermore the Court examined whether the causes for the applicant’s continued detention were virtually relevant and sufficient especially in light of the statements of the Darvas case,89 namely the individualized assessment of the particular circumstances of the detainee and of the case. Regarding the reasonableness of the suspicion the Court confirmed its previously submitted case law, emphasising that suspicion based upon the probality of the applicant being involved in criminal behaviour cannot be equated with the certainity of this, subsequently required for conviction. Moreover in the question of individualization the Court highlighted that the Convention’s provisions cannot be interpreted as obliging national authorities to release a detainee only on account of his state of health. However in view of the applicant’s psychological problems and their aggrevation due to the sexual assault it would have been the obligation of the authorities to virtually examine the possibility of the application of less stringent measures. The domestic authorities paid no attention to the fact that with the passage of time and given the applicant’s deteriorating health, keeping him in detention no longer could serve the main purpose of the measure as bringing him to trial within a reasonable time. Consequently, the measure cannot be considered neccesary from the point of view of ensuring the due course of the proceedings. Therefore the violation of Article 5. III can be ascertained. Concerning the alleged violation of the principel of equality of arms in regard of the access to the material of the investigation, the Court examined the Hungarian regulation and found that theoretically the mentioned right was ensured in a manner complying with the Convention.90 However the applicant had repeatedly complained about the lack of access to the pieces of information, all in vain; which means that there is no element in the case file or the parties’ submissions indicating that this right could indeed be exercised.91 The Court has already several times affirmed the principle that the provisions of the Convention shall be assessed and guaranteed in concreto, therefore in this case due to the above mentioned circumstances, it was held that an infringement of Article 5. IV is to be diagnosed. In regard of the compensation claimed based upon Article 5.V in conjunction with Article 41, the Court confirmed its clear practice as one hand in case of a violation of the 89 Judgement of 11 January 2011 in Darvas v. Hungary, Appl. No. 19547/07, Paras. 27-29. 90 In case of an appeal against a detention falling in the ambit of Art. 5. § (1) c) guarantees of a judicial procedure shall be provided such as a hearing and the disclosure of evidence taking place in good time, providing access to the relevant elements of the file prior to the applicant’s first appearance before the judicial authorities. Judgement of 25 March 1999 in Nikolova v. Bulgaria, Appl. No. 31195/96, ECHR 1999-II., Para. 58. Judgement of 30 March 1989 in Lamy v. Belgium, Series A No. 151, Para. 29. 91 See also in: Judgement of 13 February 2001 in Lietzow v. Germany, Appl. No. 24479/94, ECHR 2001-I, Para. 47, Decision of 09 March 2006 Svipsta v. Latvia, Appl. No. 66820/01, ECHR 2006-III, Para. 138.

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Convention or the Protocols a just satisfaction to the injured party may be afforded when the domestic law allows only partial reparation to be made. On the other hand an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have ben actually and necessarily incurred and are reasonabe as to quantum. In light of these principles the Court found EUR 18,000 as compensation appropriate to award on an equitable basis, under all heads to the applicant, moreover the sum of EUR 4,500 was held reasonable covering all kind of costs occured in connection with the procedure. It is worth to be noted that in the fairly similar recent case of Miklós Hagyó92 the Court also emphasized that: 1) the applicant’s severe state of health does not oblige the authorities to release him from detention, however this unfortunate circumstance has to be taken into account with due weight while considering the applicability of a less coercive measure 2) the rejection of access to the relevant pieces of evidence when the applicant challenges the justification of the pre-trial detention may lead to the violation of the principle of ‘equality of arms’ declared in Article 5. IV. It also has to be higlighted that according to a recent ammendment of the Hungarian Code of Criminal Procedure93 in compliance with the Convention and a new EU directive,94 the access to the relevant pieces of information concerning the pre-trial detention is to be ensured in a broader sphere as copies of the relevant material of the investigation justifying the basis of the measure shall be enclosed to the motion – served to the suspect and the defendant as well – requiring pre-trial detention

14.5

Consequences

In general according to the Court’s statics only 5% of the Hungarian cases are related to the right to liberty and security, however 94% of these cases ends with a violation judgement.95 In addition it has to be taken into account that 84% of the cases are based upon the unreasonable length of proceedings realising the infringement of the closely related

92 In the mentioned case the detention of the applicant has been justified by the authorities mainly based upon the danger of absconding, on the contrary the statement failed to be substantiated with any kind of alleged evidence. Judgement of 23 April 2013 in Miklós Hagyó v. Hungary, Appl. No. 52624/10, Paras. 58-60. 93 Amendment of Art. 211. § (1) which came into force on 2 January 2014. 94 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, OJ L 142, 1.6.2012, pp. 1-10. 95 The ECHR in Facts and Figures, 2011, id., pp. 117, 122.

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Ádám Békés Article 6. Moreover the analyzation of the legal practice96 and the datas97 in regard may lead to the recognition of the controversial state of the Hungarian regulation. Theoretically the related provisions of the Hungarian Code of Criminal Procedure guarantees even a higher level of liberty and security than requisite in the Convention. This phenomenon is mainly based upon our membership in the EU which obliges the Hungarian legislators to implement the latest achivements of the ‘acquis communautaire’ aiming the broader harmonization of both substantive and procedural criminal law as well.98 A certain approach of EU law and the Court’s case law can be revealed, however the sensitive matter of the relation of EU law and the Convention has not been adequately clarified yet.99 Contrary to that in practice the measure of pre-trial detention in the vast majority of the cases is applied – underlined with the nurmbers cited above – by the authorities virtually as – for that matter, in breach of both international and domestic obligations as well – a preliminary penalty. However it has to be admitted that there are recent initiations and

96 Detailly submitted in the studies of the Helsinki Committee: A gyanú árnyékában – Kritikai elemzés a hatékony védelemhez való jog érvényesüléséről, Magyar Helsinki Bizottság, Budapest, 2009. Előrehozott büntetés: rendőrségi fogdák – fogvatartottak a rendőrségen, Alkotmány- és Jogpolitikai Intézet – Magyar Helsinki Bizottság, Budapest, 1997. 97 According to statics of the prosecution authority detention is the utmost favourable measure taken: in the period between 2009 and 2011 an impressive number of 7.840 suspects were subject to this form of deprivation of liberty compared to almost insignificant quantity of 685 persons remaining for the other forms. Büntetőbíróság előtti ügyészi tevékenység főbb adatai, 2012. év, Legfőbb Ügyészség, 2013, p. 43. See: http://mklu.hu/repository/mkudok8246.pdf. A. K. Kádár & E. Kirs & A. Lukovics et al., 2014, id., p. 29. 98 Generally declared in the resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ C 295, 4.12.2009, pp. 1-3). In relation with this document many directives have already been accepted int he sphere of procedural criminal law, among others for instance: 2010/64/EU on the right to interpretation and translation in criminal proceedings, the already cited 2012/13/EU on the right to information in criminal proceedings, 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, and the proposals COM(2013) 821. final on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, COM(2013) 824. final on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings. Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ L 280, 26.10.2010, pp. 1-7. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, OJ L 142, 1.6.2012, pp. 1-10. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, pp. 1-12. 99 The Lisbon Treaty made it an obligation for the EU itself to entry the Convention, on the contrary the CJEU Opinion 2/13 on EU accession to the Convention made it clear that at the present stage of legal development it seems to be almost impossible as it would endanger both the sui generis feature of EU law and the independent jurisdiction of the CJEU, resulting also the infringements of the priciples of subsidiarity and autonomy.

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The Right to Liberty and Security in Practice – Focusing on Application No. 43888/08 and the Latest Case Law of the ECHR

steps taken as e.g. the already mentioned ammendment of the Code of Criminal Procedure which very welcomed purpose is to change this unfortunate legal practice and properly guarantee the rights declared in the Convention. To summarize the present stage of the application of Article 5 in Hungary demonstrated by the case analysed previously, it can be stated that the Hungarian regulation in therory is in compliance with the Convention’s requirements, even reaching a higher level of procedural guarantees. Therefore one of the most urgent challenge of the legal practice is to raise the virtual implementation of the right to liberty and security to the sphere ensured in theory, with especially laying emphasis on to changing the attitude of the competent authorities in regard of the requisite individualization of meaures and acceess to pieces of evidence.

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Part III Developments in International Law

15

Crimean Secession in International Law

William R. Slomanson*

15.1

Crimea in Historical Perspective

Kievan Rus (now Ukraine) exercised regional hegemony before the first millennium’s Mongol invasions. Eastern Ukraine fell under Russian imperial rule by the late 17th century, much sooner than western Ukraine. Western Ukraine spent centuries under the alternating control of European powers like Poland and the Austro-Hungarian Empire. The western third of Ukraine was part of Poland for several years leading up to World War II.1 The Tatars held the Crimean Peninsula from the 13th Century until the Russian takeover in the 18th Century. The City of Sevastopol has been the heart of the Russian Black Sea naval fleet since 1783, thus providing access to the Mediterranean Sea. The Soviet Union created the Crimean Autonomous Soviet Socialist Republic (SSR) in 1921. The Crimean SSR was dissolved in 1945 – when it was incorporated into the Russian SSR. The Soviet Union then ceded Crimea to the Ukrainian SSR in 1954. In 1991, Crimea morphed into the Autonomous Republic of Crimea, but still within Ukraine. This timeline necessarily incorporates the 1994 Budapest Memorandum on Security Assurances in Ukraine.2 It was designed to avoid threats against the sovereignty and territorial integrity of Ukraine. A central objective was to place Ukrainian nuclear weapons under the operational control of Russia. The Budapest Memorandum specifically provides that Russia, the United States, and the United Kingdom all support Ukraine becoming a *

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Professor of Law, Thomas Jefferson School of Law (USA); Visiting Professor, Pristina University (Kosovo). This is a revised version of his June 2015 presentations at the Debrecen University Doctoral School of Legal Studies, and at the Hungarian Academy of Sciences, sponsored by the International Law Association (ILA). Professor Slomanson thanks Debrecen University Professor Sandor Szemesi, Catholic University Professor Tamás Ádány, and the ILA Hungarian Branch President, Professor Wanda Lamm, for their invitations. Slomanson also thanks Dominique Williams (TJSL ’16), for her speech transcription and cite checking assistance. He further thanks Professor Gayane Davidyan, Moscow State University Faculty of Law, for her review and comments on an earlier draft. All arguments and conclusions remain attributable solely to the author. Eve Conant, How History, Geography Help Explain Ukraine’s Political Crisis: The country rests precariously between East and West, National Geographic (Jan. 31, 2014). http://news.nationalgeographic.com/news/2014/ 01/140129-protests-ukraine-russia-geography-history. The Presidents of Ukraine, Russia, United States, and the Prime Minister of the United Kingdom signed memorandums with the accession of Ukraine to the Treaty on the Non-Proliferation of Nuclear Weapons. These understandings gave limited national security assurances to Belarus, Kazakhstan, and Ukraine. See joint UNGA & UNSC Doc. A/49/765 & C/1994/1399 (1994). .

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member of the Nuclear Non-proliferation Treaty. All parties envision immediate UN Security Council action to provide assistance to Ukraine – but only ‘if Ukraine should become a victim of an act … or threat of aggression in which nuclear weapons are used.’3 The Budapest Memorandum is a political document. It is not a formal treaty. Neither the Bush nor Clinton presidential administrations were prepared to give a comprehensive security commitment to Ukraine. They did not believe that the US Senate would ratify a treaty on this subject. Unlike NATO’s collective intervention guarantee,4 the Budapest Memorandum did not yield a broadly-based military protection guarantee for Ukraine. At this moment, Russia may reasonably argue that the Budapest Memorandum was not triggered by the Ukrainian crisis. There has been no threat, nor any use, of nuclear weapons against Ukraine. On the other hand, if Ukraine acquires the missile defense shield it now seeks, President Putin has threatened to place nuclear weapons in Crimea. The question would then become whether that insertion of nuclear weapons would violate the Budapest Memorandum, because of the implicit threat against Ukraine. Russia would likely respond that it is merely moving its nuclear weapons from one part of Russia to what is now another.5 One may now fast forward to November, 2013. The prior Ukrainian government then disavowed Ukraine’s association agreement with the European Union. That reversal sparked months of protest by the Ukraine populace. In early 2014, there were continuing protests against the democratically elected president – who shifted his allegiance toward Moscow, instead of the European Union. Viktor Yanukovych was deposed, after which he fled to Russia.6 He reportedly regretted his presidential request for Russian assistance.7

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Id., Ann. I, para. 4 [italics added]. As the NATO member State umbrella provides: ‘an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them … will assist the Party or Parties so attacked by taking forthwith … such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area’ [italics added]. North Atlantic Treaty, Art. 5, para. 1 (1949). A claimed violation would have less validity, for any nuclear weapons still in Ukraine and under Russia’s operational control. One may presume, however, that all of Ukraine’s nuclear weapons were removed from Ukraine to Russia, as a result of the Budapest Memo. See generally Blake Fleetwood, Too Bad Ukraine Didn’t Keep Its 2,000 Nuclear Weapons, Huffington Post Politics Blog. www.huffingtonpost.com/blake-fleetwood/toobad-ukraine-didnt-kee_b_5235374.html. A Russian view of the coup’s factual background is available in Vladislav Tolstykh, Reunification of Crimea with Russia: A Russian Perspective, 13 Chinese J.I.L. 879 (2013), at paras. 2-4, hereinafter Russian Perspective. The western view is reflected in Andrew Higgins & Andrew E. Kramer, Archrival Is Freed as Ukraine Leader Flees, New York Times (Feb. 22, 2014). www.nytimes.com/2014/02/23/world/europe/ukraine.html?_r=0. One can glean a first-hand sense of these events via the filmed documentary entitled Maidan. See Atoms & Void, Maidan (2014), on Netflix. Marina Koren, Deposed Ukrainian President: ‘I Was Wrong’ to Ask Russia for Help – Yanukovych, living in exile in Moscow, believes Crimea’s annexation was a mistake, National Journal (Apr. 2, 2014). www.nationaljournal.com/politics/deposed-ukrainian-president-i-was-wrong-to-ask-russia-for-help-20140402.

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At the ensuing February 2014 meeting of the Russian security service chiefs, President Putin reportedly said: We were forced to start working on returning Crimea to Russia because we could not abandon this territory and the people who live there to the mercy of fate, to be crushed by [pro-western] nationalists. … [W]e must start working on returning Crimea to Russia.8 Crimea abruptly became the center of pro-Russian demonstrations and the ubiquitous presence of non-Crimean Russian volunteers. By mid-March, 2014, there was: an independence referendum; de facto Statehood; a unilateral secession from Ukraine; the annexation of Crimea as a special Russian federal district; and the annexation of Sevastopol as a special Russian federal city.

15.2

Contemporary Expansion of Russian Influence

The western press has done an incomplete job of framing the contemporary conflict between Russia and Ukraine. One should incorporate President Ronald Reagan’s 1987 exhortation: ‘Mr. Gorbachev, tear down this [Berlin] wall.’9 That wall came down. But the United States did not keep its often overlooked promise. Reagan’s Secretary of State then said that NATO would respond by not moving one inch eastward.10 It did – all the way to Russia’s borders.11 One who is not a sound-bite journalist must acknowledge Russia’s geopolitical posture. In 1997, Ukraine – which shares a 2,000 kilometer border with Russia – became the first Commonwealth of Independent States member to join the NATO Partnership for Peace Program. The 2002 NATO-Ukraine Action Plan was also of great concern to Russia.12 In 8

Anna Malpas, Russia could not ‘abandon’ Crimea: Putin, Yahoo! News (Mar. 9, 2015). http://news.yahoo. com/russia-could-not-abandon-crimea-putin-221302319.html. 9 Associated details are available at U.S. Dep’t of State Diplomacy Center, Voice of U.S. Diplomacy and the Berlin Wall. http://diplomacy.state.gov/berlinwall/www/exhibitions/tear-down-this-wall.html. 10 In Howard Baker’s words, on Feb. 9, 1990 at the Kremlin, there would be ‘no extension of NATO’s jurisdiction for forces of NATO one inch to the east,’ provided the Soviets agreed to the NATO membership for a unified Germany. Gorbachev said he would think about it; but ‘any extension of the zone of NATO is unacceptable.’ See Uwe Klußmann, Matthias Schepp, and Klaus Wiegrefe, NATO’s Eastward Expansion: Did the West Break Its Promise to Moscow?, Spiegel Online International (Nov. 26, 2009).