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1EHRAC BULLETIN | SUMMER 2015

European Human RightsAdvocacy CentreBulletin NO.23 / SUMMER 2015

2 EHRAC BULLETIN | SUMMER 2015

Welcome to the Summer 2015 edition of the EHRAC BulletinThe European Court of Human Rights recently held a hearing in a case from Russia relating to the terrible events at Beslan School No.1 more than 10 years ago, in which hundreds of people were killed. In this edition of the EHRAC Bulletin, Ella Kesayeva, of the Voice of Beslan, discusses the case and the potential consequences of the Court’s judgment, which is still awaited. Also on Russia, Eka-terina Aristova analyses the relevance of international standards regulating business and human rights.

Eliso Amirejibi and Salome Chagelishvili, of the Anti-Violence Network Georgia, consider what needs to be done to challenge rising levels of domestic violence against women in Georgia. On Azerbaijan, Ramute Remezaite (EHRAC) provides an update on the continuing, serious repression of human rights defenders. Olek-sandr Volkov is interviewed following his reinstatement earlier this year as a Supreme Court judge in Ukraine, as was required by the European Court in its 2013 judgment.

Finally, two articles address jurisprudential developments in Stras-bourg: Giulia Pecorella discusses the European Court’s case-law on amnesties (in the light of Armenia’s failure to date to ratify the Rome Statute of the International Criminal Court) and Dario Rossi D’Ambrosio considers the implications of the 2014 grand chamber judgment in Hassan v United Kingdom for the protection of the right to liberty in international armed conflicts.

Philip Leach, Director, EHRAC

Cover image: From the Voice of Beslan, following the Beslan School Siege, Ella Kesaeva

Contents

p3 Interview with Judge Oleksandr Volkov

p4 Hassan v the UK

p5 Continuing repression of Azerbaijani human rights defenders

p7 Armenia, amnesties and international crimes

p8 Business and human rights in Russia

p9 Violence against women in Georgia

p10 The Voice of Beslan

p12 Judgments in recent human rights cases

p16 Information about EHRAC


In January 2013, the European Court of Human Rights (‘ECtHR’) delivered a judgment in the case of Oleksandr Volkov v Ukraine (No. 21722/11), in which EHRAC represented the applicant, Mr Volkov. The case involved the dismissal of Mr Volkov from his position as a judge of the Supreme Court of Ukraine, in circumstances involving a flagrant denial of justice. It also highlighted the systemic issue of political control of the judiciary in Ukraine. The ECtHR found four violations of Article 6 of the European Convention on Human Rights (‘ECHR’) resulting from the process of Mr Volkov’s dismissal, and agreed that his removal from office constituted an unlawful interference with his right to respect for private life pursuant to Article 8 ECHR. In an unprecedented step, the ECtHR ordered Mr Volkov’s reinstatement. The ECtHR also concluded that the nature of the violations required Ukraine to take a number of general measures to reform the system of judicial dis-cipline.1 Following Mr Volkov’s reinstatement in February 2015, EHRAC spoke to him about his case, its wider significance, and recent developments in judicial reform in Ukraine.

Can you tell us about the political environment in Ukraine when you were dismissed from your position as Judge of the Supreme Court?

With the change of political power in Ukraine in 2010, President Viktor Yanukovych and his Party of Regions announced that real political, economic and legal reforms would be conducted in order to implement demo-cratic principles within the State, including in the judiciary. Various councils and working groups were created (involving the general public and judges), and were tasked with the development and discussion of draft laws and policies. However, over the course of several months it became clear that these activities were a ‘smoke screen’ for the creation of a system of political control of the country. This system facilitated the concentration of immense power with the executive branch of Government, and was rooted in legislation that ensured its continuance.

Other manifestations of this system included: the undemocratic formation of a

new parliamentary majority; mass voting by deputies in Parliament in place of their absent colleagues; the formation of ‘the power vertical’ consisting of supporters of only one political force; and the appointment to key posts of indi-viduals with an obviously corrupt reputation.

Further, during the Yanukovych Presidency, laws on the organisation of the judiciary were drafted with the aim of increasing pressure exerted by Governmental institutions and officials on courts and judges. The ultimate

aim of these laws was to subordinate judges to the executive, by effectively neutralising the former’s independence.

Pursuant to these laws, the High Council of Justice (the body in charge of, inter alia, judicial discipline) was restructured and its powers were expanded to the detriment of guarantees of judicial independence. The possibility for judicial review of the actions and decisions of higher public authorities was therefore greatly reduced. Further, the composition of the Constitutional Court of Ukraine was changed ahead of the expiry of the incumbent judges’ nine year terms. The High Council of Justice received recommenda-tions for the dismissal (for ‘breach of oath’) of a large number of judges, including the majority of the judges of the Supreme Court of Ukraine. The de facto leaders of the High Council of Justice (who belonged to the pro-Government parliamentary majority and the

Presidential Administration) took control of the judges. They had no intention of reforming legislation (i.e. in order to get rid of vague concepts, to allow for proper procedures and safeguards, or to improve recourse to legal remedies). In order to consolidate their control of the High Council of Justice, the de facto leaders oversaw a large number of judicial dismissals, including of established and well-known members of the bench.

Why did you decide to use the European Court of Human Rights to seek justice?

Assuming that such a dismissal would affect me personally, I was mentally prepared for it. I decided to use all possible legal remedies, know-ing in advance that my appeals to the Ukrainian courts would be dismissed given the de facto precedence of the High Council of Justice.

The need to lodge an application with the ECtHR was obvious. I had worked in the area of judicial reform for a long time, and was well aware of the state of the organisation of the judicial system, challenges to judicial inde-pendence, and the use of various mechanisms to influence judges in Ukraine.

In contrast, there is no doubt as to the independence, objectivity and professional-ism of the judges of the ECtHR. The quality of the ECtHR’s judgments and the available enforcement mechanisms enable the Court to tackle the root causes of violations and work to restore justice for victims of human rights violations. I realised that the violations of my rights as a result of my dismissal concerned all judges, and that justice could only be restored for me (and others) within the context of broader legislative and constitutional reform. I could see that there was the need for systemic reform in the areas of judicial appointments, judicial independence, and Parliamentary compliance with constitutional procedures.

In light of the above, my application to the ECtHR was inevitable. I am pleased that the ECtHR accepted the arguments provided in the application, and came to profound and correct conclusions about the causes and circumstances of the violations at issue.

Judicial reform in Ukraine Interview with Judge Oleksandr Volkov, Judge of the Ukrainian Supreme Court

ARTICLES

Only through impartial, lawful

and fair court decisions, taken in accordance with

the rule of law, can Ukrainian judges regain the trust

of society.


Following the judgment, it took almost two years for a vote on your reinstatement in the Verkhovna Rada (the Ukrainian Parliament). How had the domestic situation changed with regard to independence of the judiciary in that period?

My reinstatement as a judge of the Supreme Court of Ukraine was welcomed by the judicial community at home and abroad.2 Ukraine has also begun the process of legislative reform in line with the ECtHR’s judgment.3 For example, the new law “On the Judiciary and the Status of Judges” provides for a system of judicial discipline which is in accordance with the recommendations given by the ECtHR in its judgment in my case.4 Work has begun on amending the Constitution of Ukraine to bring the system of judicial appointments in line with European standards (a project with which I am involved).5 I hope that Ukraine will successfully develop and implement a set of reforms for the judiciary which will address the systemic problems identified by the ECtHR and ensure the true independence of the judiciary in accordance with the criteria of the Council of Europe and the European Union. I am confident that despite the current situation in

Ukraine - in particular the war in Donbass, and the problems with the economy - we will be able to develop and adopt the legislative frame-work by the end of 2015 or early 2016. We will then work on the practical implementation of reforms, including judicial training, and the adaptation of Ukrainian legislation and judicial procedures in line with European standards.

Of course, there are still considerable challenges relating to the independence of the judiciary in Ukraine. Constitutional provisions have not been changed, and the process for judicial appoint-ments and dismissals (and the formation of the High Council of Justice) remains the same. Parliament has adopted laws on ‘lustration’ procedures, including in respect of judges.6 The Venice Commission has sharply criticised these laws, which are now being amended.7 It has not yet been possible to improve public trust in the judiciary, whose members continue to be sub-jected to displays of disrespect and aggression by members of the public. This is all of serious concern to the judicial community. Legislative amendments alone will not resolve the problem of the lack of judicial independence. We have a lot of work to do, both in the judicial system and in society. Only through impartial, lawful and fair court decisions, taken in accordance

with the rule of law, can Ukrainian judges regain the trust of society.

How have the last two months as a Supreme Court Judge compared to the time you had previously spent in this position?

On 2 February 2015, I was reinstated as a Judge of the Supreme Court of Ukraine. I work within the Judicial Chamber on Administrative Cases. The powers of the Supreme Court are currently being amended. For example, its decisions will have the status of precedent, which will increase the responsibility, work-load and expectations of its members. This makes our work even more interesting.

Notes

1. http://goo.gl/xYNVMy para. 199-202

2. See e.g. Rechters voor Rechters http://goo.gl/Bb8tQj; Supreme Court of Ukraine http://goo.gl/VMv4CQ; The Law Society of England and Wales http://goo.gl/BAidXw

3. http://goo.gl/zeWBGi

4. http://goo.gl/xYNVMy, paras 199-202

5. http://goo.gl/h8qK5u

6. http://goo.gl/8D9MPe

7. http://goo.gl/E59S7f

The Case

In September 2014, the Grand Chamber of the European Court of Human Rights (‘ECtHR’) delivered its judgment in the case of Hassan v UK.1 The judgment is the first time that the ECtHR has expressly stated its views on the interaction between international humanitar-ian law (‘IHL’) and the European Convention on Human Rights (‘ECHR’). The ECtHR focused on the right to liberty in the context of international armed conflicts (‘IACs’), and the judgment has consequences for the legal regime applicable to the deprivation of liberty in conflict situations.2 The case concerned the capture by British forces of Tarek Hassan, a 22-year-old Iraqi citizen, in Iraq. He was the brother of a former general manager in the Ba’ath Party and general in the Al-Quds Army. On 26 April 2003, Tarek Hassan was found by British troops, with a rifle, on the roof of his family home. He was then arrested and brought to Camp Bucca, Iraq, where he was detained. About a week later British forces released him at Umm Qasr, Iraq, and approxi-mately four months later his body was found

in a distant part of the country (in an area that was not under British control).3

The ECtHR found the complaints relating to the alleged violations of Art. 2 and 3 of the ECHR manifestly ill-founded.4 The claims under Article 5(1), 5(2), 5(3) and 5(4) of the ECHR were found to be admissible, and the ECtHR concentrated on the relationship between IHL and the ECHR in this context. The ECtHR also considered the question of the extraterritorial application of the ECHR.

Extraterritorial application of the ECHR

The ECtHR unanimously recognised the extrater-ritorial application of the ECHR in respect of Tarek Hassan when he was captured by British troops, after he entered Camp Bucca, and when he was cleared for release.5 In doing so, the ECtHR rejected the Government’s arguments that jurisdic-tion arising from “total and exclusive control” over an individual did not exist in the active phase of hostilities in the 2003 war in Iraq, and that IHL was therefore the only applicable law.6

No violation of Articles 5(1), 5(2), 5(3), and 5(4) of the ECHR

On the question of whether Tarek Hassan’s right to liberty was violated, the ECtHR held that his capture and detention by the UK fell within the limits prescribed by Art. 5 of the ECHR, because it was carried out in accord-ance with IHL and was not arbitrary.7

In its reasoning, the ECtHR referred to the established principle that the ECHR is to be interpreted in light of Art. 31(3)(b) of the 1969 Vienna Convention on the Law of Trea-ties (‘VCLT’) which allows for consideration of “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. The ECtHR noted that a consistent practice by States could be considered to modify the text of the ECHR itself,8 and noted that the State practice “of not lodging derogations under Article 15 of the Convention in respect of detention under the Third and Fourth Geneva Conventions during international armed conflicts is mirrored by State practice

Hassan v United KingdomThe implications of the Grand Chamber judgment for the protection of liberty in international armed conflicts

Dario Rossi D’Ambrosio, LLM (London), Laurea Magistrale (Rome)


in relation to the International Covenant for the Protection of Civil and Political Rights”.9 Thus, the fact that the UK had not made a derogation in respect of Art. 5 of the ECHR did not prevent the ECtHR from taking account of IHL when interpreting and applying Art. 5 in the present case.10

Further, the ECtHR considered that pursuant to, inter alia, Art. 31(3)(c) of the VCLT, the ECHR should be interpreted in harmony with other rules of international law, including IHL. In the ECtHR’s words, “the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision [Art. 5 ECHR] should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions”.11 Moreover, “[i]t can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers”. 12

Possible repercussions of the ECtHR’s judgment

It has been suggested that one of the practi-cal outcomes of the Hassan judgment is that States will comply with their obligations under the ECHR as long as they respect the rules set out in the Geneva Conventions for the protection of the right to liberty.13 This means that with regard to the procedural safeguards provided by Art. 5(2) and Art. 5(4) of the ECHR, the legality of detention can be determined by a “competent body”, which means an “administrative board” (under Art. 43 of the Fourth Geneva Convention)

Following an unprecedented crackdown on Azerbaijani civil society that started in August 2014, the judicial persecution of human rights defenders and journalists continues to date. This article gives a brief update on these developments, focusing on particularly high profile cases.1

On 16 April 2015, Rasul Jafarov, human rights activist and Chair of the Human Rights Club, was sentenced to six and a half years in prison.

rather than a “court” (pursuant to Art. 5(4) of the ECHR). In addition, as highlighted by the ECtHR, internment “shall be subject to periodical review, if possible every six months, by a competent body” (under Art. 43 and 78 of the Fourth Geneva Convention).14 The competent body should provide sufficient guarantees of impartiality and fairness, and “the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals”.15

This appears to be quite different from Art. 5(4) where “[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.

It has also been suggested that after Hassan, States involved in IACs could “invoke their powers of internment under the Third and Fourth Geneva Conventions” without expressly derogating from Art. 5(1) of the ECHR.16 In other words, the respondent State would not be obliged to comply with Art. 15 of the ECHR in order to displace the requirements and restrictive interpretation of Art. 5 of the ECHR.

Conclusion

It could be said that the ECtHR’s attempt in Hassan to ‘accommodate’ the requirements of Art. 5 of the ECHR with those of IHL have resulted in the primacy of IHL over the ECHR, where violations of Art. 5 are raised in the context of IACs. This development possibly weakens, and risks displacing, the detailed procedural safeguards contained in Art. 5 of the ECHR, in favour of a reduced level of protection of the right to liberty during IACs. This judgment also potentially questions the

A few days later, on 22 April 2015, Intigam Aliyev, human rights lawyer and Chair of the Legal Education Society, received a seven and a half year sentence. Intigam and Rasul were both convicted of illegal entrepreneurship, tax evasion, abuse of power, forgery, and misappropriation of funds. Their convictions arise from their work protecting and promot-ing human rights in Azerbaijan and their roles within the abovementioned NGOs. In addition to these convictions, the local courts banned

importance of Art. 15 of the ECHR, which the Court found to be trumped by (arguably less relevant17 “subsequent practice” under Art. 31(3)(b) of the VCLT.

In conclusion, a literal interpretation of Art. 15 in conjunction with Art. 5 of the ECHR and a harmonious coexistence of both the ECHR and IHL allows for (perhaps even suggests) a different regime applicable to the protection of the right to liberty under the ECHR.18 At the moment however, the right to liberty under the ECHR has suffered a severe blow in the context of IACs.

Notes

1. Hassan v UK Judgment, 16/09/2014, http://goo.gl/omw5k8

2. According to Common Article 2 of the Geneva Conventions, IACs arise whenever there is an armed conflict between two or more States, even when the state of war is not recognised by one of them.

3. http://goo.gl/omw5k8, para 63.

4. Ibid., 64.

5. Ibid., paras 76-80.

6. Ibid., 71.

7. Ibid., paras 108-111.

8. Ibid., para. 101. Judge Spano Partly Dissenting Opinion, para. 13(ii)

9. Ibid., para. 101. Judge Spano noted that an im-plicit derogation to Art. 9 ICCPR through State prac-tice could not be transferred to the context of Art. 5 ECHR, since Art. 9 ICCPR does not contain an exhaustive list of requirements for the deprivation of liberty similar to that contained in Art. 5 ECHR.

10. Ibid., paras 101-103.

11. Ibid., para. 104.

12. Ibid.

13. Judge Spano Partly Dissenting Opinion, para. 4; http://goo.gl/AsdCzh; http://goo.gl/MlRLQX. Law-rence Hill-Cawthorne welcomes the Court’s approach on this point: http://goo.gl/1uHOI1.

14. Hassan v UK, para. 106.

15. Ibid.

16. Ibid., Judge Spano Partly Dissenting Opinion, para.5.

17. Ibid., para.13.

18. Ibid., paras. 16-18

Rasul and Intigam from holding any ‘official position’ (with a public body or an NGO) for three years after their release. It is widely perceived by civil society and the international community that Intigam and Rasul’s arrests in August 2014, and their subsequent prosecu-tion, were politically motivated.

Intigam and Rasul’s trials were monitored by a number of domestic and international observ-ers, foreign embassies, and journalists, who

Continuing Repression of Azerbaijani human rights defenders An update

Ramute Remezaite, PhD Candidate, Law School, Middlesex University and Legal Consultant, European Human Rights Advocacy Centre


Corruption Reporting Project, has also been subjected to judicial persecution. She was arrested and detained by the authorities on 5 December 2014 on charges of inciting a former colleague to attempt suicide; a charge she denies, and which was later refuted by that same colleague5. On 13 February 2015, new charges of tax evasion, illegal business, and abuse of power were brought against her. While the investigation was underway, Khadija was denied family visits for three and a half months, without any explanation. The initial charges are the subject of an ongoing investigation, while the investigation into the later charges has effectively been suspended.

The above-mentioned cases are seen as a disturbing illustration of the pattern of reprisals against critical voices who dare to speak out against the wrongdoings of the Azerbaijani authorities, and expose human rights abuses calling for those responsible to be brought to justice. Now that these critical voices are silenced, the lawyers defending them are the next target of the State’s efforts to stamp out any form of dissent.

Khalid Bagirov, lawyer of Rasul Jafarov, Leyla and Arif Yunus, and many other detained or imprisoned critical voices in Azerbaijan, is facing disbarment following spurious disci-plinary proceedings that were brought against him in September 2014. On 10 December 2014 the Azerbaijan Bar Association applied to the local courts requesting Khalid’s disbar-ment. The grounds of the request were that Khalid had violated the norms of advocates’ ethics by failing to wear a lawyer’s gown in court and stated that “If there were justice in Azerbaijan, the court would not make unjust and preconceived decisions and the judge Rashid Huseynov would not work” (a quotation referring to the failure of the domestic courts to implement the ECtHR’s judgment in Ilgar Mammadov v. Azerbaijan (No. 15172/13)). While the disbarment proceedings are pending, Khalid’s licence to practice law has been suspended, thus preventing him from continuing to legally represent detained human rights defenders before the domestic courts. It is not yet known when the merits of the disbarment case will be heard.

In further attempts to restrict access of prominent human rights defenders to lawyers of their choosing, four of the five lawyers representing Intigam Aliyev (Fariz Namazli, Alayif Hasanov, Adil Ismayilov and Anar Gasimli) were removed from his case. Javad Javadov, a lawyer for Leyla Yunus, was removed from her case, as was Khalid Bagirov. Another lawyer who was acting for Leyla, Alayif Huseynov, was sentenced to

reported numerous procedural inadequacies and alleged violations of fair trial standards. For example, during their initial court hearings, Intigam and Rasul were kept handcuffed in a metal cage, which not only prevented them from effectively communicating with their defence lawyers, but arguably also constituted inhuman and degrading treatment under the standards of the European Convention on Human Rights (‘ECHR’).

Intigam and Rasul have submitted applica-tions to the European Court of Human Rights (‘ECtHR’) concerning their pre-trial detention. They argue, inter alia, that the Azerbaijani authorities did not have sufficient evidence to establish a ‘reasonable suspicion’ to justify their pre-trial detention (in violation of Article 5(1)(c) of the ECHR), and that their arrest and detention was politically motivated (in viola-tion of Article 18 of the ECHR). Intigam has also complained that the authorities violated his right to respect for private and family life, home or correspondence (under Article 8 of the ECHR) as a result of several search and seizure operations carried out at his home and office shortly after his arrest. The Government of Azerbaijan has submitted its observations in these two cases, and the applicants have filed their responses and just satisfaction claims. Subject to the ECtHR requesting any further information from the parties, judgments may be expected.

In addition to the above, Intigam submitted a (separate) application to the ECtHR concern-ing the authorities’ alleged failure to provide him with adequate medical treatment while in detention and the poor detention and transportation conditions that he was forced to endure in violation of, inter alia, Article 3 of the ECHR. The government was asked to submit its observations on 26 May 2015. The applicant’s response and just satisfaction claim will be submitted in July 2015.

The detention and conviction of Rasul and Intigam was met with outrage by many in the international community,2 and prompted interventions in the pre-trial detention cases before the ECtHR from the Council of Europe’s Commissioner for Human Rights. In respect of both cases, the Commissioner noted:

“The prosecution of human rights defend-ers and prominent journalists in Azerbaijan constitute reprisals against those who have co-operated with the Council of Europe or other organisations and denounced human rights violations in the country. The close working relationships of the Commissioner’s Office and the Council of Europe as a whole with these human rights defenders reinforce the belief that they are being deliberately targeted with criminal proceedings as a result of their

engagement in activities that should be per-fectly legal in a well-functioning democracy”.3

Human rights defender and founder and Director of the Peace and Democracy Institute, Leyla Yunus, and her husband Arif Yunus, a prominent historian, remain in custody follow-ing their arrests in summer 2014 on charges of state treason, fraud, forgery, and tax evasion. In October 2014, their pre-trial detention was extended until August 2015. According to their lawyers, the domestic investigation into these charges has not even started, while their respective health conditions continue to deteriorate (with Leyla’s state of health report-edly critical). Pursuant to the ECtHR’s order for interim relief granted in October 2014, the Azerbaijani Government was required to provide Leyla and Arif with adequate medical treatment, and to ensure Leyla’s transfer to a specialised medical facility if such treatment was not available in detention. According to the applicants’ lawyers, none of this has

happened yet. Leyla did receive two visits from a German doctor in January and March 2015, but the Government has so far refused to disclose the doctor’s report or provide Leyla with the medication prescribed.

Leyla and Arif submitted applications to the ECtHR raising alleged violations of Art. 5, 6, 8 and 18 of the ECHR arising out of their arrest and pre-trial detention, searches conducted on them at the airport and in their home, and various statements which the applicants consider violate the presumption of innocence. The Government has submitted its observations on the merits of the case, and the applicants will submit their response and just satisfaction claims shortly. The Commissioner for Human Rights intervened in the case in April 2015, emphasising that the applicants’ detention is an attempt to silence their efforts to report on human rights violations, and is designed to prevent them from continuing their work (includ-ing in relation to efforts to peaceably resolve the ‘frozen’ conflict between Azerbaijan and Armenia over the Nagorno-Karabakh region).4

Khadija Ismayilova, an award-winning investigative journalist who worked for Radio Free Europe and the Organised Crime and

During their initial court hearings,

Intigam and Rasul were kept

handcuffed in a metal cage


240 hours’ community service following his conviction under trumped up charges of criminal libel.

Referring to the disbarment proceedings against Khalid Bagirov, PACE President Anne Brasseur commented that “against the back-ground of increasing intimidation of human rights defenders in Azerbaijan, such clear pressure on independent lawyers defending civil society activists is unacceptable” 6.

Notes

1. This article follows on from an article in the Winter 2014 EHRAC Bulletin: http://www.ehrac.org.uk/zZTCd

2. Statement of United Nations Special Rapporteurs: http://goo.gl/rjcr91

Statement of the Committee on Legal Affairs and Hu-man Rights of the Council of Europe Parliamentary Assembly: http://goo.gl/JA6oha

European Parliament resolution on the persecution of human rights defenders in Azerbaijan: http://goo.gl/ohjURJ

3. Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, para. 3, of the ECHR, Application No. 68762/14, Intigam ALIYEV v. Azerbaijan, CommDH(2015)6, 16 March 2015, para 25 https://goo.gl/hFjVz6;

Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, par. 3, of the ECHR, Application No. 69981/14, Rasul JAFAROV v. Azerbaijan, CommDH(2015)8, 30 March 2015, para 27. https://goo.gl/xeLJJQ

4. Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, para. 3, of the ECHR, Application No. 69917/14, Leyla YUNUSOVA and Arif YUNUSOV v. Azerbaijan, CommDH(2015)10, 16 April 2015, para 32 https://goo.gl/coELaE

5. http://goo.gl/RpbBAs

6. http://goo.gl/lWmqNv

Armenia, amnesties, & international crimesIs there a role for the European Court of Human Rights?

Dr Giulia Pecorella PhD, Middlesex University

On 22 January 2015 Armenia had its second Universal Periodic Review (‘UPR’) before the UN Human Rights Council.1 Among the actions recommended during its first UPR in 2010 was ratification of the Rome Statute of the International Criminal Court (‘Rome Statute’), that Armenia had signed on 1 October 1999 but not yet ratified.2 To date the Government has relied on a 2004 opinion of the Armenian Constitutional Court (‘ACC’) as the basis for its delay in ratifying the Rome Statute.3 This article examines how the case law of the European

Court of Human Rights (‘ECtHR’) arguably pro-vides scope for the ACC to reverse its position.

The judgment of the ACC on which the Arme-nian Government relies provides that the Rome Statute cannot be ratified until the Constitution is reviewed. Specifically, the judgment rules that in light of the Constitutional duty to protect human rights and freedoms (set out in Art. 3 of the Armenian Constitution), Armenia cannot create a less favourable regime for individuals under its jurisdiction who may be prosecuted before the International Criminal Court (‘ICC’).4 Indeed, according to the ACC, the ICC system would prevent an accused or a convicted person from benefiting from an amnesty law or a pardon, whereas the Armenian Constitution provides for both these instruments.5

As a preliminary observation, it should be noted that the Rome Statute is silent in relation to amnesties and pardons. Further, the question of whether national laws providing for amnes-ties would be in compliance with the Rome Statute is not yet settled.6

As to the potential role of the ECtHR in this context, it should be remembered that at least some of the international crimes within the jurisdiction of the ICC also constitute serious violations of the same human rights that are protected by the European Convention on Human Rights (‘ECHR’).7 With regard to such crimes, the state duty to protect human rights and freedoms may be of particular relevance. While in its 2004 decision the ACC relied on this obligation to rule against the compat-ibility of the Rome Statute with the Armenian Constitution, in the future it might consider an amnesty relating to some international crimes as being contrary to such a duty.8

In this context, the jurisprudence of the ECtHR (which has acquired progressively more importance in the ACC’s case law)9 might play a fundamental role.10 In particular, in the case of Marguš v Croatia (No. 4455/10) 27/05/14 the Grand Chamber concluded that “granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State’s obligations under Articles 2 and 3 of the Convention since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible. Such a result would diminish the purpose of the protection guaranteed by under Articles 2 and 3 of the Convention and render illusory the guarantees in respect of an individual’s right to life and the right not to be ill-treated” (Marguš v Croatia, at 126).11

In light of the above principle, the ACC might deem an amnesty law to be contrary to the Armenian Constitution whenever it relates to crimes which also constitute a violation of either

Art. 2 or Art. 3 of the ECHR. In so doing, the ACC may have scope to give a new interpreta-tion of the “obligation to protect human rights and freedoms assumed under [former] Article 4 of the Constitution”,12 this time characterised by an impellent necessity to avoid impunity for gross human rights violations. In order to reach this position, however, the ACC would need an amnesty law to be adopted.

In summary, the jurisprudence of the ACC reflects the growing importance of the ECtHR’s case law in its reasoning. The ACC’s interpreta-tion of the “obligation to protect human rights and freedoms” could therefore be developed by the ECtHR’s case law. Accordingly, if given the opportunity, the ACC (following Marguš v Croatia) might determine that amnesties relat-ing to certain international crimes are contrary to the Armenian Constitution. In other words, the ECtHR’s jurisprudence provides scope for the ACC to change its approach to amnesties and, in doing so, to modify the position it took in its 2004 opinion to which the Government continues to turn for justification of its failure to ratify the Rome Statute.

Notes

1. http://goo.gl/5O2BxC

2. http://goo.gl/2X8TS6

3. http://goo.gl/SOO0Ob

4. Armenian Constitutional Court, supra note 3.

5. Ibid.

6. See, e.g., Allan. K., 2011. Prosecution and Peace:A Role for Amnesty Before the ICC?. Denver Journal of International Law and Policy, 39, 239-301, 245. Roth-Arriaza, N. 2000. Amnesty and the International Criminal Court in Shelton, D. ed, International Crimes, Peace, and Human Rights: The Role of the International Criminal Court. New York: Transnational Publishers. 77-82, 79.

7. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Art. 2), UN.Doc.CCPR/C/21/Rev.1/Add.13, para. 18 (26 May 2004)

8. Armenian Constitutional Court, supra note 1. See article 100 (1) of the Armenian Constitution.

9. See, e.g., The Case on Conformity of Article 426.9, Part 1 of the RA Criminal Procedure Code and Article 204.33, Part 1, Article 204.38 of the RA Civil Procedure Code with the Constitution of the Republic of Armenia on the Basis of the Applications of the Citizens Aram Sargsyan, Karapet Rubinyan, Serine Fljyan, Irina Oganesova, Anna And Agnessa Baghdasaryan, Sveta Harutyunyan, Sergey Hakobyan, Gayane Kirakosyan And “Meltex” Llc, [2011] DCC-984. See also Ghazaryan, N., 2014. Legislative ap-proximation and application of EU law in Armenia, in R. Petrov & P. Van Elsuwege, eds., 2014. Legislative Approximation and Application of EU Law in the East-ern Neighbourhood of the European Union: Towards a Common Regulatory Space?. Oxon: Routledge, 2014, 191-214, 206.

10. As for pardons, it is unlikely that the ACC would rule against the conformity with the Constitution of a Presidential order. However, according to Article 95(4) of the Constitution, the Council of Justice may express its opinion on issues of pardon at the request of the President of the Republic. Impor-tantly, according to Article 15(4) of the Armenian Judicial Code, which applies to all national courts but the ACC, a reasoning of the ECtHR is binding in the examination of a case with similar factual circumstances.

11. See also Cestaro v. Italy (No. 6884/11) 7/04/15, at 208.

12. Cf. Art. 3 of the current Armenian Constitution.


Introduction

Corporations are responsible for many of the most serious violations of international human rights law. Despite this, there remain significant challenges in accommodating corporate accountability for human rights abuses within existing legal regimes, and implementing the UN Guiding Principles on Business and Human Rights (‘UN Guiding Principles’). Corporate legal accountability for human rights, the broader notion of corporate social responsibility (‘CSR’), and the practical impact of business on the promotion of human rights, remain key issues for the Russian Fed-eration. On the one hand, Russia is a relatively new market economy that is still emerging from its Soviet past. On the other hand, it has implemented legal reforms which favour a capitalist-style economy (for example, mod-ernising its civil and commercial laws in order to improve the business environment, and working to establish an International Finance Centre in Moscow). What remains to be seen is whether these reforms will be conducted only with a view to maximising profit, or whether they will also take into account community interests and the promotion of human rights.

UN Guiding Principles on Business and Human Rights

The UN Guiding Principles were endorsed by consensus by the UN Human Rights Council on 16 June 2011, and are widely recognised as the most comprehensive current global standard for corporate accountability.1 The Principles are a non-binding initiative, produced as a result of the work of the UN Special Representative on Business and Human Rights, John Ruggie. The Principles elaborate on the three pillars of the UN ‘Protect, Respect and Remedy’ Framework: the state duty to protect against human rights abuses by third parties, including businesses; the corporate responsibility to respect human rights through diligent conduct; and effective access to judicial and non-judicial remedies by victims of human rights abuses.

Jurisdictions including the United States and some European Union member states have started to incorporate elements of the UN Guiding Principles into their national legislation.2 Unfortunately, the UN Guiding Principles have yet to receive such considera-tion in Russia. This contributes to the lack of clarity about the respective roles and

responsibility of Government and business in Russia with regard to the protection of and respect for human rights.

State duty to protect human rights

There is still a great deal for the Govern-ment to do in putting the first pillar of the UN Guiding Principles into practice, and enforcing the State’s duty to protect and promote human rights. The following should be prioritised and form part of the business and human rights agenda: careful analysis of regulatory gaps regarding the protection of human rights in business; clarification of the standards and expectations for legal entities, and communication of the same to business; development of transparent reporting sys-tems; regular human rights checks to review compliance with human rights policies; and improving access to effective dispute settle-ment between companies and communities, both in and out of court. Further, there is no single, cohesive strategy document or action plan to enforce the UN Guiding Principles. Rather, to date there has been an inconsistent approach to individual cases of human rights abuses. For example, state-owned and private companies were alleged to be involved in vari-ous human rights abuses related to the 2014 Winter Olympic Games in Sochi, including the alleged exploitation of workers engaged in the construction of Olympic buildings; alleged evictions from the construction sites; and the alleged illegal dumping of construction waste threatening residents’ health and safety.3 Only a few of the reported human rights abuses were investigated.

Nevertheless, there are some positive trends in the implementation of the state duty to protect human rights in this context. For example, the conflict between major oil corporation LUKOIL and the indigenous Khanty people in northwestern Siberia.4 In 2011, the oil giant won the right to exploit the area and announced the construction of a road to facilitate further drilling of oil wells on sacred sites where Khanty ancestral pasture grounds were located.5 The construction of the road would destroy the fragile reindeer moss ecosystem, which is essential for the survival of the Khanty people. In accordance with legal procedures, the corporation was required to reach an agreement with the indigenous community.6 Following negotiations between the company and Khanty representatives, disputes arose over the appropriate level of

compensation payable to the community for the destruction of the ecosystem.7 LUKOIL requested support from the Russian Govern-ment, arguing that the Khanty’s demands would increase social tension and destabilise the local economy.8 In 2014, with Government support not forthcoming (largely due to the unexpectedly strong position of the Khanty community, broad media coverage, and activ-ists’ support), LUKOIL had no alternative but to abandon the project.9 This case became an important precedent for upholding the rights and interests of indigenous groups facing pressure from corporate interests in Russia.

Corporate responsibility to respect human rights

The second pillar of the Guiding Principles is the corporate responsibility to protect human rights. The concept of CSR, which arguably underpins the corporate responsibility to respect human rights, is still very new in Russia. Its development was stimulated by the flow of inward foreign investment (in the form of, for example, joint ventures), and the listing of Russian companies on foreign stock exchanges (which generally have high stand-ards of corporate governance). Although most Russian companies have a basic understand-ing of CSR, there remain serious challenges that threaten the recognition of, and adher-ence to, the higher standard of the corporate responsibility to respect human rights. Firstly, while several companies have joined another UN initiative, the Global Compact, the great majority of Russian companies are not familiar with the norms of the UN Guiding Principles. Secondly, CSR is mainly considered as a tool for improving a business’s reputation and maintaining a positive social image, rather than a mechanism to ensure companies avoid breaching human rights and address the adverse impact they may have. Codes of conduct adopted by Russian companies rarely go beyond the principles of the UN Global Compact, and often contain declarations that are not supported by the implementation mechanism under the UN Global Compact. Many Russian companies still believe that it is ‘unreasonable’ to allocate resources for developing a strategy for cooperating with stakeholders from local communities, or ensuring transparent and regular reporting systems. Finally, the effectiveness of CSR initiatives and the corporate responsibility to respect human rights is likely to be compro-mised in Russia due to the voluntary nature

Business and human rights in RussiaRecent trends

Ekaterina Aristova, PhD, Lawyer


of these principles. Without legal obligations for businesses to report on and address their impact on human rights (and broader social change), CSR and the corporate responsibility to respect human rights are likely to remain largely ineffective.

Access to a remedy

The third pillar of the UN Guiding Principles is the need for greater access to effective remedies for victims of corporate human rights abuses. There are considerable barriers in victims’ access to legal remedies before the Russian courts, both substantive and procedural. Russian law does not provide a legal framework for criminal or civil liability of corporates for human rights abuses. In par-ticular: there is no definition of a ‘corporate group’; traditional corporate law principles require the separation of legal liability of parent companies and their affiliates; and shareholders can hide behind the legal concept ‘limited liability’. Although a suc-cessful attempt to change the conservative and narrow approach to piercing the ‘corpo-rate veil’ (i.e. seeking to hold shareholders

Violence against women (including physical, sexual, psychological, and economic vio-lence) is a breach of women’s fundamental human rights, including the right not to be discriminated against. It is a clear example of gender inequality,1 and at its worst can also constitute a violation of the right to life. This

directly accountable for corporate conduct) was recently made by the Russian Supreme Commercial Court, the prospect of holding parent companies directly liable under tort law remains, in practice, largely illusory.10

Further, the procedural barriers to ensuring an effective remedy include: the difficulty of obtaining evidence (particularly when it comes to requesting disclosure from companies); the onerous cost of proceed-ings for victims (and the lack of legal aid in this context); inconsistent practice in the application of the ‘success fee’ policy by the courts; the absence of ‘class action’ claims; and challenges in the admissibility of claims from foreign jurisdictions.11

Conclusion

As one of the major players on the global arena, Russia has a responsibility to take an active role in creating a framework to ensure the protection for and respect of human rights in the context of business activities. A comprehensive national action plan is required in order to overcome regulatory gaps,

article examines recent trends in violence against women in Georgia, which has seen a rise in the number of reported incidents of fatal domestic violence and ‘femicide’ (killing of women and girls because of their gender) in 2014.

The legal framework

Under the 2006 law on “Elimination of Domestic Violence, Protection of and Sup-port to its Victims” (the ‘Domestic Violence Law’), the Georgian Government is required to take concrete steps to combat domestic vio-lence.2 The Domestic Violence Law provides for temporary protection measures through ‘restrictive orders’ (which can be issued by the police) and ‘protection orders’ (which can be granted by the courts),3 and requires the government to establish shelters and social services for victims.4

Prevalence of domestic violence in Georgia

Although there are no official statistics on fatal incidents of domestic violence and ‘femicide’, media reports indicate that up to 23 women in Georgia were killed by their

and move away from voluntary regulation of companies to effective binding measures to ensure corporate respect for human rights. Further, conceiving CSR solely as a tool for enhancing reputation is no longer acceptable. The sustainable development of the economy and the stability of the political system will be dependent on, inter alia, the responsible contribution of companies to the promotion and protection of human rights in Russia.

Notes

1. http://goo.gl/iLHLU,

2. See: http://goo.gl/UosYECa and http://goo.gl/DQmz0b,

3. https://goo.gl/0ejU31

4. https://goo.gl/l1TJ8j

5. Ibid.

6. https://goo.gl/KuyTh5

7. Ibid.

8. Ibid.

9. http://goo.gl/sePgak

10. Decision of the Presidium of the Supreme Com-mercial Court No. 16404/11,24.04.2012, Case No. A40-21127/11-98-184.

11. Resolution of the Presidium of the Supreme Commercial Court No. 7805/12,23.10.2012, Case No. A56-49603/2011).

partners in 2014.5 In a small country, these figures, and the resultant public anger and shock, loom large.

Recent research on all forms of domestic vio-lence in Georgia also indicates that it remains a widespread problem. For example, according to the 2010 survey entitled ‘National Research on Domestic Violence Against Women in Georgia’,6 9.1% of women in Georgia who have ever been married or had an intimate partner have experienced violence from their partners.7 This means that one out of every 11 women in a marriage or an intimate relationship has been a victim of physical or sexual violence.8 Further, through research conducted between 2010 and 2011, AVNG found that two out of three women have been the victim of at least one form of domestic violence during their lives.9

According to research published by the United Nations Development Programme (‘UNDP’) in 2013, traditional views on gender roles remain entrenched amongst the public in Georgia.10 A woman’s main function is considered to be rais-ing children and taking care of the household, while a man’s function is to support the family financially.11 Although 30% of women surveyed by the UNDP are the breadwinner for their

Violence against women in GeorgiaA continuing problem

Eliso Amirejibi, Coordinator, and Salome Chagelishvili, PR and Fundraiser, Anti-Violence Network Georgia (AVNG)

One out of every 11

women in a marriage or an intimate

relationship has been a victim of physical or

sexual violence


families, the Georgian public does not consider this scenario to be “ideal”.12 If finances allow, public perceptions indicate that it is better for women to stay at home or take “more appropri-ate work for a woman” if necessary.13

These attitudes are evidenced in recently reported cases of domestic violence in Georgia. For example, in one case a 35 year old man, Fridon Archvadze broke his ex-wife’s legs because he did not want her to go dancing; rather, he wanted her to stay at home and take care of their child. During the trial, he claimed:

“I have [sic] broken the legs of Sopo because I didn’t want her to dance. It was not revenge. I consider this word to be absurd. I do not refuse the fact of being dangerous for Sopo. I have warned her to take care of her kid and quit going to nightclubs. This is the reason I have injured her legs, I wanted her not to be able to dance any more.”14

The UNDP research also echoes the findings of previous studies, which suggest that Georgia is still a patriarchal country where men occupy a dominant position, and women know that they have a subordinate role and make concessions as a result of this.15 Moreover, society demands that a woman tolerate her husband’s behaviour in order to preserve the family.16

Lela Gaprindashvili, a philosopher and member of the Independent Group of Feminists, con-siders that prevailing societal attitudes are a significant reason for violence against women in Georgia.17 According to Ms Gaprindashvili, ‘femicide’ and domestic violence are the result of the belief that a woman’s life is less valuable than that of a man.18

Public action and the State’s response to rising incidents of domestic violence in 2014

In response to the State’s failure to prevent domestic violence, on 29 July 2014 women’s rights activists and organizations working on women’s issues demonstrated in front of the Ministry of Internal Affairs and State Chancel-lery of Georgia.19 Further protests were held on 25 November 2014.20 The State has promised to prioritise finding a solution for violence against women,21 and in November 2014 the Ministry of Internal Affairs started a campaign against violence against women throughout the country.22 In January 2015, the President of Georgia declared 2015 as the year of women in Georgia.23

Remaining challenges in combatting violence against women in Georgia

The Government has said that it is trying to ensure a comprehensive and versatile response

to ‘femicide’ and violence against women, including through: developing (further) and implementing (existing) gender sensitive legislation in this area; raising awareness of violence against women; supporting victims of domestic violence; and protecting women from ‘femicide’, and when it fails to do so, effectively prosecuting perpetrators.24 However, much remains to be done to achieve these goals, and to effectively prevent and deter violence against women in Georgia. In particular, it is important to pay special attention to:

• Theavailabilityandaccessibilityofprotec-tionmechanismsforvictims;

• Strongerenforcementofthelaw;

• Trainingforthepolicetoensurethattheyarebetterequippedwiththerelevantskillsandtoolstobeabletoidentifyandassesstherisksofdomesticviolence;

• Training for prosecutors and judges onhandlingdomesticviolencecases;

• ThepromptnessandeffectivenessoftheworkoftheProsecutor’sofficeininvestigat-ingreportsofdomesticviolence;

• Theapplicationbythecourtsofadequatesanctionsforcrimeswherethereisfoundtobegender-baseddiscriminationunderlyingthecrime,includingincasesofdomesticviolence.

Notes

1. See, inter alia, http://goo.gl/CO409R and http://goo.gl/27EaDX

2. http://goo.gl/SkDNRn (in Georgian)

3. Ibid., Article 10.

4. Ibid., Article 8 and Article 17.

5. See http://goo.gl/56Xt8X and http://goo.gl/Jyd961

6. http://goo.gl/bMBrt1

7. Ibid., p. 33. 3,872 household surveys were completed and a total of 3,768 women aged 15-49 were identified. 2,621 women were selected by the Kish method of “one woman per household”. 2,391 interviews were completed (p. 25).

8. Ibid.

9. AVNG’s survey was conducted within a two year project on “Developing Georgia’s Administrative Possibilities”, in which 2,401 respondents took part. (http://goo.gl/MYSEub p. 13)

10. http://goo.gl/1wUAyB

11. Ibid., p. 4.

12. Ibid.

13. Ibid.

14. http://goo.gl/afpMMm 17 October 2014

15. http://goo.gl/1wUAyB p. 4.

16. Ibid., p. 5.

17. http://goo.gl/tzbhKs (in Georgian)

18. Ibid.

19. Ibid.

20. See http://goo.gl/EjVVPl, and http://goo.gl/ekWlj3

21. http://goo.gl/5hKVvV

22. http://goo.gl/WyzePw

23. http://goo.gl/y9avNv

24. http://goo.gl/Hiaqt1

The Voice of BeslanAn Interview

Ella Kesayeva, Voice of BeslanBeth Saffer and Marina van Riel, EHRAC

On 14 October 2014, the European Court of Human Rights (‘ECtHR’) held a Chamber hearing in the case of Tagayeva and others v. Russia (No. 26562/07). The case concerns the siege which occurred between 1 and 3

September 2004 at School No. 1 in Beslan, North Ossetia. The hearing took place nearly ten years to the day after the terrorist attack in which 334 people (and 186 children) were killed. 447 former hostages and relatives of those who died brought their cases to the ECtHR, arguing inter alia, that the Govern-ment failed to take reasonable measures to prevent the attack; that the control and plan-ning of the rescue operation was inadequate; and that, as a consequence, the deaths in the school were the result of a disproportionate use of force by the authorities and insufficient resources were provided to prevent the loss of life from fire. They also alleged the lack of an effective investigation into the events. EHRAC and Memorial Human Rights Centre represented 346 of the applicants before the ECtHR and presented arguments at the Cham-ber hearing, which was attended by 14 of the applicants. This interview with Ella Kesayeva1 was conducted by Beth Saffer and Marina van Riel of EHRAC before the hearing.

Almost ten years to the day since the terrorist attack in

which 334 people, including 186 children, were

killed, 447 former hostages and

relatives of those who died brought their cases to the European Court.


Can you tell us about your search for justice within Russia, before you applied to the ECtHR?

In 2005, the journalist Anna Politkovskaya told us that we would get nowhere in Russia, and we should go to Strasbourg. It seemed strange that the domestic courts would not accept the facts of the case. I mean, everybody saw the school under attack with their own eyes, and there was hope that all that would be acknowledged. However, we were oppressed and forced to remain silent. Even so, going to court became our job. The years went by. I didn’t work for 5 years, I went to court instead. Finally, in 2007 I applied to Strasbourg.

What are the implications for you, and civil society more generally, of your case being heard by the ECtHR?

Beslan concerns everybody. The same crimi-nal methods were employed in Chechnya. If we had put up some opposition then, maybe Beslan wouldn’t have happened. The dead can never come back, but we can be strong and talk openly about what happened, so that Beslan will be the last attack of its kind.

What are you hoping for from the ECtHR, and what do you think the consequences will be in Russia?

We are not expecting much, as Russia never reacts to the ECtHR’s decisions, apart from paying compensation. We do not need compensation, we need the decision. Our children will never return. Beslan remains unresolved and our future is uncertain. If only the government had pleaded guilty, but Russia will never do that. We do not expect criminal proceedings, as it is an international court. If the materials we submitted are enough, we expect the decision to be in our

favour. We were told that we would find justice in Strasbourg. This is our only hope. It comforts us that there is a place where everything is done by the rule of law, and where our evidence will be considered when the decision is made. A place where people know that Beslan is not only our problem and that it is important for everybody. The crime should be recognised as a crime. Not just by journalists, but by an official body. The journalist [Elena] Milashina recognised the government’s culpability in her articles, which is dangerous in Russia. She was even attacked. We want legal acknowledgement from the ECtHR. [The Russian Government] say that we lost our mind from grief. We await an independent judicial decision.

Could you please comment on the current situation with human rights in Russia?

There are no human rights in Russia! It’s just a sham, presented only in writing for the ben-efit of the international community. Before entering the world stage, the government should respect its own people. Beslan is a prime example. If we had rights, we wouldn’t have to go to Strasbourg. Our children didn’t even have the right to life.

What do you think about the fact that some member states of the Council of Europe want to withdraw from the European Convention on Human Rights (‘ECHR’)?

No! Strasbourg is a benchmark of justice; it is body that should be an example for every-body. Maybe in the UK, the courts function correctly but in Russia it is not the case; we need something to aspire to. Furthermore, the document [the ECHR] was signed and the law was adopted. So the law should be fol-lowed and applied; whether you like it or not; whether it is good or bad. If it is adopted, one should follow it (although in Russia recently many inadequate laws were adopted, such as the Foreign Agent Law); otherwise chaos will follow. One must obey the law.

In order to prevent the rise of corruption, it is important that another country takes a decision. So that [the government] would understand that they were wrong and unfair. Somebody unbiased from the outside must do that, because Putin won’t punish him-self. There must be an international court in these cases.

We could not find justice in our country; this proves again that there is a neces-sity for such a Court. Because there was Beslan, and not one person has been found responsible.

If a country like the UK withdraws from the ECHR, what effect would it have on Russian politics?

A very negative one! For our government it will be an excuse to say, ‘We don’t want it either!’ They have to understand that we are all in the same boat and have an impact on one another. We all live in the same world.

If they don’t want to be taken before the Court, then they should make sure they prosecute the right people, so that their citizens won’t need to apply to the Court. Adhere to justice and there will be no problem.

If the UK opts out of the ECHR, Putin would immediately hold it up as an example! It would be a catastrophe.

The UK should not think only of itself, because this will lead to other countries completely disregarding the rule of law. As the UK is a country of many nationalities, if some accident or war takes place in one place, its effect is felt in other places. If there were no ECtHR, then where else could we go to seek justice? There is no other place! As long as the UK doesn’t shoot its own people, [the government] has nothing to be afraid of.

Our courts are unbearable. They gave us so much stress, some of our men died of heart attacks, and didn’t live to see this moment. This is our only hope.

It is hard to overestimate the significance of the ECtHR for the Russian people. It is the only way of deterring lawlessness.

Notes

1. Mrs. Ella Kesayeva, whose four family members were held hostage during the siege, chairs Voice of Beslan, a grassroots NGO.

Going to court became our job. The

years went by. I didn’t work for 5 years, I went to court

instead.

It is hard to overestimate the significance of

the ECtHR for the Russian people. It is the only way

of deterring lawlessness.


Amerkhanova v RussiaECHR: Judgment Right to life

(No. 4560/08), 9/10/14

Facts

The case was part of a group judgment with eleven others (see Sultygov and Others v Russia (No. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11)). The applicants in each case alleged that State servicemen in Chechnya and Ingushetia had abducted their relatives on various dates between 2000 and 2005, and that no effective investigation into these events had taken place. The applicants in Amerkhanova were represented by EHRAC and Memorial Human Rights Centre.

On the evening of 3 November 2002, the applicant’s son, Rustam Amerkhanov, left home to visit a friend. Rustam failed to return home that evening, and has not been seen since. On 4 November 2002, the applicant discovered that her son had been detained by State servicemen during the night of 3 November 2002 before allegedly being released the following day.

On 12 November 2002, the district pros-ecutor’s office opened a criminal case under Article 105 of the Criminal Code (murder). The case was suspended on 12 January 2003 for failure to identify the perpetrators. The investigation was resumed and suspended a further three times between 25 September 2003 and 26 July 2004 without the appli-cant’s knowledge, and is still pending.

Judgment

The ECtHR held that there had been both a substantive and procedural violation of Art. 2 ECHR. The applicant had presented a prima facie case that her son was abducted by State agents and that his death could be attributed to the Government (which had failed to discharge its burden of proof in this regard). The ECtHR further held that the authorities had failed to carry out an effective criminal investigation into the circumstances of Rustam’s disappearance, and noted that the investigation shared many of the defects identified by the ECtHR in Aslakhanova and

Others v Russia (No. 2944/06) 18/12/12.

In relation to Art. 3 ECHR, the ECtHR held that the applicant had suffered distress and anguish as a result of her son’s disappearance and her inability to find out what happened to him. Further, the manner in which her com-plaints have been dealt with by the authorities constituted inhuman treatment.

The ECtHR held that there had been a “par-ticularly grave” violation of Art. 5 ECHR given that the applicant’s son had been held in unac-knowledged detention which was not logged in any custody records, leaving no official trace of his subsequent whereabouts or fate.

The ECtHR reiterated its findings concerning the ineffectiveness of criminal investigations in cases concerning disappearances in the North Caucasus, and found that the absence of results in this case meant that any possible remedies became inaccessible in practice. There was therefore a violation of Art. 13 ECHR.

The applicant was awarded €60,000 in non-pecuniary damages.

Comment

The case joins a long line of other ECtHR judg-ments on the ‘systemic’ failure of the Russian authorities to inter alia, investigate enforced disappearances in the North Caucasus (see also Aslakhanova and Others v Russia). The case also affirms the ECtHR’s approach to the particular suffering of relatives of the disap-peared, which can in its own right constitute inhuman treatment.

Albakova v RussiaECHR: Judgment Right to life

(No. 69842/10), 15/01/15

Facts

On 10 July 2009, Batyr Albakov was abducted following a passport check at his home in Ingushetia by armed men speaking Chechen, Russian and Ingush. On 21 July 2009, his mother, the applicant, discovered on the inter-net that he had been shot dead by Russian servicemen during a counter-terror operation. When her son’s body was returned, it showed evidence of multiple injuries including gun-shot and stab wounds, fractures, burns, and a partially severed arm.

Between 10 July 2009 and 24 September 2009, the applicant made two requests for a criminal investigation into the disap-pearance and unlawful killing of her son. In the interim, the district prosecutor’s office opened a criminal investigation into her son’s alleged involvement with an illegal armed group and in the killing of a State agent. On 24 September 2009, the applicant was notified that her application had been added to the aforementioned investigation, but no criminal proceedings were ever brought. Between December 2009 and May 2010, the applicant unsuccessfully chal-lenged the investigator’s refusal to initiate criminal proceedings. On 14 May 2012, the criminal investigation into the circumstances surrounding Batyr Albakov’s death was re-opened, and concluded shortly thereafter that he died in an exchange of gunfire between Russian servicemen and an illegal armed group.

The applicant was represented by EHRAC and Memorial Human Rights Centre.

Judgment

In light of the lack of evidence ‘beyond reasonable doubt’ that the Russian security forces were implicated in the abduction and detention of Batyr Albakov, and given that the parties did not dispute that he was killed by the Russian military, the ECtHR’s role was to determine whether the use of force against Batyr Albakov on 21 July 2009 was lawful under Art.2 ECHR.

RECENT EHRAC HUMAN RIGHTS CASES

Amerkhanova v Russia affirms the European

Court’s approach to the particular

suffering of relatives of the

disappeared, which can in its own right constitute inhuman

treatment.


The ECtHR found a substantive violation of Art. 2 on the basis that the authorities had not shown that they did all that could be reason-ably expected of them to avoid the real and immediate risk to life which they knew was likely to arise in the course of the events on 21 July 2009. Further, the ECtHR found that the investigation by the authorities was neither thorough nor effective, resulting in a violation of the procedural limb of Art. 2.

The applicant was awarded €60,000 in non-pecuniary damages.

Comment

Despite the Russian government’s acknowl-edgement that State agents were responsible for the death of Batyr Albakov, the ECtHR dis-missed the applicant’s claims that the same agents were responsible for the preceding abduction and alleged detention and torture of her son (in violation of Art. 3 and 5 ECHR) due to a lack of evidence. Although the ECtHR has previously found the State responsible for extra-judicial executions and disappear-ances in the North Caucasus (see, amongst others, Khashiyev and Akayeva v Russia (No. 57942/00 and 57945/00) 24/02/05), in this instance the applicant did not make out a prima facie case of abduction by servicemen.

Makayeva v RussiaECHR: Judgment Right to Life

(No.37287/09), 18/09/14

Facts

The case concerned the disappearance of the applicant’s son, Apti Zaynalov, who had previ-ously been convicted of belonging to an illegal armed group, but had later been released from detention. The applicant was represented by EHRAC and Memorial Human Rights Centre.

On 25 June 2009, Mr Zaynalov travelled from Saratov to Grozny by train. He took a taxi from Grozny railway station, and during the journey was apprehended by an armed man and driven away. On 2 July 2009, the applicant was informed that an unknown person (likely her son), whose body exhibited signs of torture, had been placed under armed guard in Achkhoy-Martan Hospital. On 4 July 2009, the applicant visited the hospital (with Memorial staff member Natalia Estemirova, who was murdered shortly thereafter on 15 July 2009). On 7 July 2009, the applicant

lodged a complaint with the local prosecu-tor’s office. A few hours later she returned to the hospital and witnessed her son being driven away by servicemen. She has not seen him since. A criminal investigation into Apti Zaynalov’s disappearance was opened on 28 July 2009 and remains pending.

Judgment

The ECtHR found three separate violations of Art. 2 ECHR. Firstly, there was a breach of the substantive obligation under Art. 2 on the basis that Mr Zaynalov could be presumed to be dead. He was last seen in the hands of State agents at the Hospital on 7 July 2009, and there was no plausible explanation as to his fate after that date. Further, his unacknowledged detention was considered life-threatening. In these circumstances, and absent any reliance on the exceptions to the right to life, the State was found to be responsible for Mr Zaynalov’s presumed death. Secondly, the ECtHR found a violation of the positive obligation to protect the right to life. Citing the various actions that could have been taken by the authorities when they became aware of a real and immediate threat to Mr Zaynalov’s life (including evidence gathering and inspection of the premises

where he was last seen), the ECtHR concluded that the authorities failed to demonstrate an urgent and appropriate reaction. The ECtHR particularly noted that the internal inquiry carried out by the Chechnya Prosecutor’s Office found the actions of the acting district prosecutor and his deputy to be inadequate and concluded that his behaviour “had facili-tated the kidnapping of [Mr Apti Zaynalov] from Achkhoy-Martan Hospital”. Thirdly, the ECtHR found a violation of the procedural limb of Art. 2 on account of the failure to effectively investigate Mr Zaynalov’s presumed death. The ECtHR pointed to the delay in opening the investigation (which resulted in the loss of crucial perishable evidence), and the lack of any official response to Mr Zaynalov’s admis-sion (as an anonymous patient with gunshot wounds) to, and removal (under armed guard)

from, a municipal institution.

The ECtHR also established that the applicant’s rights under Art. 3 ECHR had been violated, on account of the distress and anguish which she continued to suffer as a result of her inability to ascertain her son’s fate, and the way in which her complaints were dealt with. Further, as Mr Zaynalov was detained by State agents without legal grounds or acknowledgment, there was a violation of Art. 5 ECHR. In light of the ineffective criminal investigation, and the lack of other accessible domestic remedies, the State had failed to fulfil its obligation to provide an effective remedy under Art. 13 ECHR. The applicant was awarded €60,000 in non-pecuniary damages.

Islam-Ittihad Association and Others v Azerbaijan ECHR: Judgment Freedom of association

(No. 5548/05), 13/11/14

Facts

The Islam-Ittihad Association was an Azer-baijani NGO active between 1991 and 2003 and was involved in, inter alia, the repair and maintenance of several mosques, projects aimed at promoting respect for human rights and building a civil society, humanitarian work, and programmes focused on promoting toler-ance between different religions in Azerbaijan. In 2002 the Ministry of Justice issued three warnings to the Association, stating that pursu-ant to domestic law, NGOs must refrain from engaging in “religious activities”. The Asso-ciation maintained that Azerbaijani legislation did not provide any definition of “religious activities”, and that the Ministry had failed to specify which of its activities were deemed to be ‘religious’. In 2003, following an application lodged by the Ministry of Justice, a domestic court ordered the Association’s dissolution (a decision which was upheld by both the Court of Appeal and the Supreme Court).

The applicants were represented by Professor Bill Bowring, with the assistance of EHRAC.

Judgment

After its dissolution, the Association’s repre-sentatives filed a complaint with the ECtHR alleging violations of the rights to freedom of

Mr Zaynalov last seen in the hands of State agents at the Hospital on 7 July

2009, and there was no plausible expla-nation as to his fate

after that date.


Shvydka v UkraineECHR: Judgment Freedom of expression

(No. 17888/12), 30/10/14

Facts

At a Ukrainian Independence Day ceremony in 2011, the Ukrainian President Yanukovych laid a wreath at a monument to a famous Ukrain-ian poet and public figure. The applicant was taking part in a public gathering, organised by the opposition party, Batkivshchyna. She removed the wreath’s ribbon containing the words “the President of Ukraine V.F. Yanuko-vych”, because she believed he should not hold this position. A police officer filmed her action and reported it to his superiors.

The applicant was taken to a district police station and charged with “petty hooligan-ism”. She was not allowed to see a lawyer, and refused to sign the police report. She was convicted and sentenced to 10 days’ adminis-trative detention. Her appeal was denied after she had served her sentence.

Decision

The ECtHR confirmed that in removing the ribbon the applicant had sought to convey certain ideas regarding the President to the people around her; an act which could be regarded as a form of political expression. The applicant’s detention therefore amounted to an interference with her right to freedom of expression. In considering the proportionality of the interference, the ECtHR took note of the applicant’s age (63), the absence of any

assembly and association (Art. 11 ECHR), and expression (Art. 10 ECHR). The ECtHR determined that the case fell to be examined under Art. 11 only, and found that although the Association’s dissolution had a basis in domestic law, the State failed to give any definition of “religious activity”. The ECtHR also noted that the Ministry of Justice and the domestic courts failed to specify the religious activities in which the Association had allegedly engaged. The lack of legal definition prevented the applicants from understanding what constituted “religious activity”, which in turn hindered their compliance with domestic law. Thus, the ECtHR deemed that the State was given unlimited discretionary powers in this regard,

However, Judge de Gaetano dissented in considering that the interference with the applicant’s freedom of expression failed to meet the first test of Article 10. The interfer-ence was not “prescribed by law” and thus it was not necessary to consider whether the interference was “proportionate to the legitimate aim pursued” or “necessary in a democratic society”.

Malika Yusupova and Others v RussiaECHR: Judgment Right to life

(No. 14705/09, 4386/10, 67305/10, 68860/10 and 70695/10), 15/01/15

Facts

The applicants are close relatives of six men who disappeared, having been unlawfully detained by Russian servicemen during special operations in Chechnya between 2001 and 2002. The cases were joined by the ECtHR. The applicants complained of the authorities’ failure to carry out effective investigations into these disappearances. In particular, although criminal investigations were commenced, the proceedings were repeatedly suspended and resumed, and remained pending for several years without achieving any tangible results. The Government did not challenge the appli-cants’ allegations, but maintained that there was no evidence to prove beyond reasonable doubt that State agents had been involved in the incidents or that the applicants’ relatives were in fact dead.

operation of NGOs in Azerbaijan. The ECtHR has acknowledged the importance of NGOs in ensuring democracy and pluralism and reiterated the importance of associations in conveying the participation of citizens in the democratic process (see, for example, Gorzelik v Poland (No. 44158/98) 17/2/04). This case is not the first in which Azerbaijan has been found to have violated the right to freedom of association by dissolving an NGO, or where the applicable NGO law was criticised for its vague provisions (see Tebieti v Azerbaijan (No. 37083/03) 8/10/09). The judgment sends a clear message that Azerbaijan is obliged to respect freedom of association, which is cru-cial for the healthy functioning of civil society, democracy and the rule of law.

prior criminal record, and the fact that she was given the harshest available sanction for an administrative offence. It also noted that her sentence was explicitly based on her refusal to change her political views. The ECtHR found that the applicant’s detention was a disproportionate interference with her right to freedom of expression under Art. 10 ECHR.

The applicant also argued that the delay in examining her appeal meant its outcome was meaningless. States Parties to the ECHR have a wide margin of appreciation in deciding how to run their appeal system, but any restrictions on the right to appeal must not threaten the essence of the access to courts principle. When the applicant appealed against her sentence, her detention was not suspended. Therefore, the upper court’s decision could not cure any trial defects. Receiving compensation post-appeal for wrongful detention would not be an acceptable remedy, given that ECHR rights must have practical effect. Ukraine had also therefore violated her right of appeal under Protocol No. 7, Art. 2 ECHR.

Comment

The ECtHR has previously dealt with acts of political expression under Article 10. For example, in Murat Vural v Turkey (No. 9540/07) 21/10/14 and Tatár and Fáber v Hungary (No. 26005/08 and 26160/08) 12/06/12, the Court found that the meas-ures adopted by the State against acts of political expression were not necessary in a democratic society, or were not proportionate to the legitimate aim pursued. In Tatár and Fáber v Hungary the ECtHR also focused on the chilling effect that sanctions would have on public speech. It is noteworthy that this consideration has not been made in the present case because the decision was exclusively based on a proportionality test.

contrary to the requirement of foreseeability prescribed by Art. 11. This constituted an unjustified interference with the applicants’ rights and a violation of Art. 11.

The ECtHR awarded the applicants €4,000 in non-pecuniary damages.

Comment

This judgment coincides with an unprec-edented level of repression of activists and human rights defenders, many of whom have been arrested and detained on charges arising from their work with and within NGOs. The targeting of individuals has been accompanied by restrictive amendments to the laws on the

RECENT NoN-EHRAC HUMAN RIGHTS CASES


Judgment

The ECtHR found that the applicants’ rela-tives could be presumed dead following their unacknowledged detention by unidentified State agents. It was accepted by the ECtHR that the applicants had made out a prima facie case of the abduction of their relatives and had demonstrated that they fell under the control of the authorities. Absent any justification from the State as to the circumstances of the disappear-ances of the applicants’ relatives, their deaths were held to be attributable to the State. This resulted in a violation of the substantive limb of Art. 2 ECHR. Citing its findings in previous cases on the ineffectiveness of criminal investi-gations into disappearances which occurred in Chechnya between 1999 and 2006, the ECtHR found a procedural violation of Art. 2 in respect of the State’s failure to effectively investigate the disappearances of the applicants’ relatives. In particular, the ECtHR emphasised that the investigations were plagued by the same defects as had been identified in the case of Aslakhanova and Others v Russia (No. 2944/06) 18/12/12.

Further, the ECtHR found a violation of Art. 3 ECHR on the basis of the applicants’ distress and anguish, which they continued to suffer as a result of their inability to ascertain the fate of their close relatives, and given the way in which their complaints were handled by the authorities. A violation of Art. 5 ECHR was found in respect of the unlawful detention of the applicants’ relatives, which the ECtHR considered as “unacknowledged detention”, constituting a particularly grave violation of Art. 5. Finally, a violation of Art. 13 ECHR was found in conjunction with Art. 2 and 3, due to the applicants’ lack of an effective domestic remedy. The ECtHR awarded €60,000 in non-pecuniary damages in respect of each family member who was disappeared.

Navalnyy and Yashin v RussiaECHR: Judgment Freedom of assembly

(No. 76204/11), 04/12/14

Facts

On 5 December 2011 the applicants, Mr Navalnyy and Mr Yashin (well-known political activists and anti-corruption campaigners), were arrested for failing to obey a police order to stop a spontaneous march held after participating in an authorised demonstra-tion against the outcome of the Russian parliamentary elections (which had taken

place the day before). During the first six hours following their arrest both applicants, denied any food or drink, were driven to three different police stations at which they were subjected to a search and seizure of personal property. Despite repeated requests and the lodging of a complaint, the applicants were refused access to a lawyer until shortly before the commencement of administrative proceed-ings on 6 December 2011. Both were found guilty of having disobeyed a lawful order of the police to stop the spontaneous ‘march’ and follow the police officers to their bus to draw up a report. They were sentenced to 15 days’ administrative detention and their appeals were dismissed.

Judgment

The ECtHR found violations of Art. 3, 5(1), 6(1), 11 and 13 ECHR in respect of both applicants. With regard to the violation of Art. 11, the ECtHR concluded that the measures taken by the authorities were not justified by a pressing social need and therefore not necessary in a democratic society. Regarding Art. 6, the ECtHR found that the courts failed to ensure that the prosecution had proved its case, and omitted to consider the lawfulness of the orders allegedly given by the police, contrary to the principle of equality of arms. As for Art. 5, the ECtHR found that the applicants’ arrest and detention were unlawful and arbitrary. In particular, the unjustified escorting to the police station, the unrecorded and unacknowledged six hour deten-tion in transit between police stations, and the lack of reasons for remanding them in custody until the court hearing, constituted breaches of the applicants’ right to liberty. Further, the ECtHR concluded that the applicants did not have an effective domestic remedy for their complaints about the transit time and the condi-tions of their detention, in breach of Art. 13. The cumulative effect of the conditions in which the applicants were held (including the denial of food and water and the inadequate state of the police cell) constituted inhuman and degrading treatment, thereby breaching Art. 3.

Comment

This case is one of many lodged with the ECtHR arising from large-scale public protests in 2011/2012 largely held in response to the allegedly fraudulent elections which returned Putin and the United Russia party to power in May 2012. The protests are also perceived by many as marking the start of the crackdown on civil society unleashed by the Government in 2012 and continuing to date. In this judg-ment, the ECtHR highlighted, inter alia, that the “chilling effect” of the disproportionate sanctions imposed on the applicant was magni-fied by the fact that they had been targeted as especially well-known public figures.

Razzakov v RussiaECHR: Judgment Prohibition of torture

(No. 57519/09), 05/02/15

Facts

On 26 April 2009 Rashid Razzakov, a migrant worker in Voronezh, arrived at a meeting place as arranged by his employer (who was acting on police instructions). On arrival, three uniformed police officers knocked him to the ground, handcuffed him and took him in an unmarked car to the police headquarters where they demanded that he confess to a murder. He was subjected to severe physical violence (including being punched, hit on the head with a glass bottle, undressed, tied up and hung in painful positions from a metal bar and a door, head down and naked) over a period of two days until he confessed and signed a paper in Russian which he could not read. He was then released without charge and no criminal proceedings were brought against him.

On 8 September 2009, a criminal inves-tigation into the applicant’s allegations of ill-treatment was commenced, only to be suspended and reopened several times (including for failure to identify the alleged perpetrators). In civil proceedings for damages in respect of the applicant’s ill-treatment, the courts established that the applicant had been subjected to unlawful physical violence by police officers.

Judgment

The ECtHR found that the ill-treatment suffered by the applicant over a prolonged period of time, for the specific purpose of making him signed a false confession, constituted torture and a violation of Art. 3 ECHR. The ECtHR also found a violation of the procedural limb of Art. 3 given the authorities’ significant delay in commencing a criminal investigation into the applicant’s credible allegations of serious ill-treatment by the police, and the manner in which the investigation was conducted thereafter.

The applicant’s claim of a breach of his rights under Art. 5(1) ECHR was rejected by the ECtHR on the basis that the domestic court’s award of damages for his unlawful deten-tion constituted “appropriate and sufficient redress”; hence he could no longer claim to be a victim of a violation of Art. 5(1) in this context. The ECtHR awarded the applicant €20,000 in non-pecuniary damages.

16 EHRAC BULLETIN | SUMMER 2015

About EHRACEHRAC is an independent apolitical organisation that stands alongside victims of human rights abuse in order to secure justice. Working in support of civil society organisations, we bring strategic cases to the European Court to challenge impunity for human rights violations. We raise awareness of viola-tions and means of redress for victims. Each judgment we secure contributes to an objective account of human rights abuse that cannot be refuted.

EHRAC PartnershipsEHRAC works in partnership with many NGOs, lawyers and individuals in Russia, the South Caucasus and Ukraine. Our work focuses on mentoring joint project lawyers to develop their professional skills and independence as litigators. To find out more about the organisations we work with, and how we work in partner-ship, visit http://www.ehrac.org.uk/about-us/our-team/our-partner-organisations/

Call for new partnersEHRAC is seeking to develop partnerships with new organisations in the coun-tries we work in. If you are litigating at the European Court and would like to discuss potential collaboration opportunities with EHRAC, please contact [email protected] in English, Russian or Armenian.

Internship OpportunitiesEHRAC has in-house internship placements available throughout the year. To find out about the type of work our interns do, what opportunities are currently available and how to apply, please visit www.ehrac.org.uk/about-us/jobs-listing/

ContributionsEHRAC would like to thank the following people for their contributions:

Eliso Amirejibi, Ekaterina Aristova, Lucy Buckland, Salome Chagelishvili, Dario Rossi D’Ambrosio, Sarah Enright, Craig Hatcher, Eleanor Healy-Birt, Luke Hodgkin, Ella Kesaeva, Alex Nelia, Giulia Pecorella, Ramute Remezaite, Violetta Rusheva and Judge Oleksandr Volkov.

This Bulletin was produced by EHRAC designed by Gerbil Tea and translated into Russian by Tatiana Hansbury.

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