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Right to access to information under art. 10 ECHR- Studio Monitori v. Georgia

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Background

In Studio Monitori and others v. Georgia, the European Court of Human Rights has examined under which circumstances article 10 ECHR confers a right to access to information.

Article 10 ECHR enshrines the right to freedom of expression. The second sentence of the article states, inter alia, that this right shall include ‘freedom to receive information’. It is subject to debate whether this language should be understood as implying a right to access information. For a long time, the European Court of Human Right has been reluctant to subscribe to that interpretation. In Magyar Helsinki Bizottsag v. Hungary, the Grand Chamber modified the Court’s stance on the issue and held that article 10 may provide a legal basis to access information if certain criteria are met. The recent case Studio Monitori and others v Georgia gave the Court the opportunity to reiterate its position on the right to access information under article 10.

Facts

The judgment deals with two applications which had been joined for adjudication in a single judgment

The first application was lodged by a NGO and one of its members, a journalist. The NGO had been founded to conduct journalistic investigations into matters of public interest. The NGO had requested access to a file in a criminal case against a third person. The registry of the court which kept the file informed the applicant that the file contained personal information about the defendant as well as classified information. It asked the applicant to explain why it wished to access the case file. 

The applicant submitted a court action in order to get access to the file. A public hearing took place in which the representative of the applicant pointed out that the applicant sought to access the file for purposes of a journalistic investigation project. She did not provide any further details on this, though. Instead, she relied on provisions article 37 of the General Administrative Code of Georgia. This provision stated that everybody had the right to access public information, regardless of the form in which it had been stored.

The second application had been submitted by a lawyer who was serving a jail sentence. While in prison, he had requested copies of court orders imposing pre-trial detention which had been issued in six different criminal proceedings. The cases had not been related to the applicant’s case.

The court provided him with copies of the operative part of the decisions. The lawyer submitted a court action to gain access to the full text of the decisions; he, too, relied on article 37 of the General Administrative Code. His action was dismissed. The court pointed to article 3 of the General Administrative Code which set out that article 37 did not apply to the judiciary.

Both applicants submitted applications to the European Court of Human Rights.

Legal assessment

Admissibility

The Court briefly discussed the admissibility of the application. The legal issue the applications gave rise to was whether article 10 ECHR conferred a right to access information. On the one hand, that question regards the Court’s jurisdiction. The Court is mandated to ensure that states meet their obligations under the ECHR. Consequently, it is only competent to examine the application if, in principle, an obligation to grant access to information can be inferred from the Convention. 

On the other hand, the question whether article 10 entails such a right concerns the core of the guarantees afforded by that provision. The Court therefore decided to examine the question on the merits of the case.

Merits – Right to access to information pursuant to article 10.

Development

For a long time, the Court has rejected the interpretation that article 10 confers a right to access information.  In Leander v. Sweden, it stated: ‘The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 (art. 10) does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.’

However, the Court held in a number of cases that article 10 ECHR was breached if the applicant had obtained a judicial decision granting access to certain documents and the relevant authorities had not complied with the judgment. For example, in Youth Initiative for Human Rights v Serbia, the applicant NGO had requested data on the use of secret surveillance measure from the Serbian intelligence agency based on the Serbian Freedom of Information Act. The Agency rejected the request; the applicant obtained a final judgment ordering the Agency to supply the requested information. The Agency failed to provide it. The Court found a violation of article 10 ECHR. 

In Magyar Helsinki Bizottsag v Hungary, the Grand Chamber has further modified the Court’s jurisprudence regarding the right to access to information under article 10 ECHR.

The applicant in that case was an NGO involved in the area of justice reform. It had run a project aiming to improve the quality of services provided by ex-officio lawyers. As part of this endeavour, it requested information on the names of ex-officio lawyers suggested to suspects by police officers since it suspected that lawyers were not chosen from the list of available lawyers provided by the bar association. The requests were based on the Hungarian ‘Data act’ which provided for access to information of public interest. 

Criteria

Referring, inter alia, to a growing international consensus on the importance of access to information, the Court held that a request to obtain information may be based on article 10 in certain cases. It set out four criteria:

  • The access to the requested information is a necessary requirement for the person to divulge information or to exercise his freedom of expression. This applies in particular to journalists or other groups of persons facilitation public debates.
  •  
  • The requested information is in the public interest; e.g. it concerns the way in which public affairs are conducted
  • The person or entity requesting the information plays a role in initiating or facilitating public debates, for example as a journalist or an NGO
  • The information is readily available, i.e. it does not have to be gathered or compiled first

Application of principles

Applying these principles, the Court found no violation of the Convention.

Regarding the first applicants, it stated that their had sought the information in question to facilitate a public discussion. However, the information had not been necessary for the applicants to exercise their freedom of expression. During the domestic proceedings, they had been given the opportunity to explain why they needed the information but had failed to provide answers. The Court also pointed out that the applicants had been able to finalise their journalistic investigation without receiving the requested information.

In respect of the lawyer who had requested access to court decision on pre-trial detention, the Court pointed out that – unlike journalists or certain NGOs – he was not a ‘public watchdog’ mandated to facilitate public discussions. He, too, had failed to explain why he needed the requested information. The Court also expressed doubts that the information was in the public interest.

Consequently, there was no breach of article 10 ECHR.

ECtHR: Expulsion of aliens at Spanish border in Morocco did not breach ECHR

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Introduction

The judgment of the Grand Chamber in N.D. and N.T. v. Spain adds to the European Court of Human Rights’ growing body of jurisprudence on matters related to migration. The case concerned the expulsion of two men who had climbed over the fence separating Moroccan territory from the Spanish enclave of Melilla and who had been returned immediately. They argued that their expulsion had violated article 4 of Protocol 4 to the European Convention on Human Rights, which prohibits the collective expulsion of aliens; they also contended that no effective legal remedy had been available to them contrary to article 13 ECHR. The Grand Chamber did not find a violation of the Convention.

The case gives rise to interesting issues of admissibility as well as regarding the interpretation of article 4 of Protocol 4.

Facts

The applicants were nationals of Mali and of Cote d’ Ivoire respectively. They had fled their home countries and arrived in Morocco, where they stayed in an informal migrants’ camp. The camp is situated near the town of Melilla. Melilla is a Spanish enclave on the North coast of Africa which is surrounded by Moroccan territory. The border between Melilla and Morocco is an external border of the Schengen area and provides access to the European Union.

The border is highly secured. There are three fences, which are six, three and six metres high respectively. The Spanish Guardia Civil is patrolling the area to prevent illegal border crossings.

On 13 August 2014, large groups of people tried to cross the border on two occasions. The applicants took place in the first attempt. They managed to reach the fences and to climb them. They stayed on the top of the fence for several hours. Finally, members of the Guardia Civil provided them with ladders. After the applicants had climbed down, the member of the Guardia Civil handcuffed them, transported them to Morocco and handed them over to the Moroccan authorities. The applicants were not asked about their personal circumstances, their identities or the reasons motivating them to wish to go to Spain

A few weeks after their return to Morocco, the applicants succeeded in overcoming the fences separating the territory of Morocco from the Spanish territory. They were transported to Spain, but ultimately expelled following legal proceedings in which they had been represented by lawyers.

The applicants submitted that their forceful return to Morocco after their first attempt to climb over the fences of Melilla, violated the prohibition of collective expulsion of aliens.

Legal assessment

Admissibility

The Grand Chamber examined a number of issues regarding the admissibility of the applications.

Pursuant to article 37 ECHR, the Court can stop considering a case and strike it out of the list of pending cases if the applicant does not intend to pursue the application further. However, the Court may also decide to continue the examination of the case if that is required in the interest of human rights.

The Court had asked the applicant’s representatives whether they still communicated with their clients to establish if the applicants intended to pursue their application. The representatives had stated that the applicants lived in precarious conditions and changed their place of residence frequently; however, they had stayed in touch via WhatsApp and with the help of an interpreter. The Court was satisfied that they applicants intended to pursue they applications; the Court also pointed out that the examination of the case was required in the interest of human rights, since it concerned issues of interpretation of the Convention which are important in the context of increased migration and the new challenges it entailed.

Jurisdiction

The Convention only applies to persons within the jurisdiction of a contracting state. The Spanish government had argued that the applicants had never been within its jurisdiction. While it conceded that the fences had been built on Spanish territory, it argued that they had been erected to prevent persons entering the EU unlawfully as required by the Schengen border code. There, the Government argued, persons came into the Spanish jurisdiction only after they had passed the three fences and the police line.

The Court was not persuaded by this argument. It referred to its long-standing jurisdiction to the effect that jurisdiction was primarily territorial: States are obliged to guarantees the rights enshrined in the Convention on their territory. They were not at liberty to exclude their responsibility under the Convention for certain parts of their territory. Since the applicants had reached the fences and the fences stood on Spanish soil, the applicants had been within Spain’s jurisdiction.

Victim status

The Spanish government had argued that the applicants had lost their victim status, since they had succeeded in entering Spain later on and had been expelled following procedures in which they had been represented by counsel. The Court rejected that argument.

Applicability of art. 4 of Protocol 4

The Grand Chamber examined whether art. 4 of Protocol 4 was applicable in the case.

The Spanish government argued that the applicants had not been expelled but rather been prevented from entering the EU. According to the government, the drafters of the Convention had not intended to extend the scope of art. 4 of Protocol 4 to extra-territorial situations like the one at hand. The provision did not afford any protection to persons who had the opportunity to cross a land border lawfully but chose not to make use of it.

The Court reiterated that states have, in principle, the right to control the entry, residence and removal of aliens. Consequently, they were entitled to protect their borders. It also pointed to the Schengen border code, which underlines the importance of managing the entry of migrants for states which have an external EU border and therefore control access to the EU. At the same time it stressed that the need to protect borders did not absolve states from their obligations under the Convention

After an extensive analysis of relevant provisions of international law, the Court concluded that expulsion was to be interpreted as ‘to drive away from a place’. In the Court’s view, there is no distinction between the non-admission of an alien and his expulsion. Once an individual has entered a state’s territory and then forced to leave it, an expulsion has taken place and art. 4 of Protocol 4 is applicable. Since the Court had ruled that the applicants had been within Spain’s jurisdiction and since they had been escorted outside of Spanish territory, the events fell within the scope of art. 4 of Protocol 4.

Merits – Collective expulsion

The Grand Chamber examined whether the expulsion had been ‘collective’. The Court referred to its established case law to the effect that an expulsion does not have to affect a minimum number of persons to be ‘collective’. It also reiterated that the expelled individuals do not have to belong to a certain group or share any distinctive features such as ethnicity or beliefs.

The characteristic which renders an expulsion ‘collective’ is, in the Court’s view, is that someone is subjected to it without a procedure giving him the opportunity to submit his arguments and without examining his personal circumstances.

The Court also pointed out that the conduct of the applicant plays a role when assessing the scope of protection afforded by art. 4 of Protocol 4. That principle also applied to persons who enter a country in an illegal manner, making use of force and of the situation created by large numbers of persons trying to cross the border at the same time. However, in this context it also had to be considered whether these persons had had another choice, i.e. whether Spain had provided genuine access to means of legal entry.

The Court stated that states whose border is an external border of the EU are obliged to make available effective access to means of legal entry. Where such arrangements exist, the Convention did not prevent them from refusing entry to aliens who did not comply with these procedures without cogent reasons.

The Court examined the possibilities Spain offered migrants or asylum seekers to enter Spain lawfully or to request permits to do so. It concluded that a sufficient number of ways existed to claim refugee rights or to request asylum in Spain, inter alia via a number of Spanish consulates and embassies. Since the applicants had not made use of these procedures but tried to force their way into Spain, their immediate return did not constitute a breach of art. 4 of Protocol 4.

Standing of NGOs to act on behalf of applicants before the ECtHR – L.R.v North Macedonia

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Introduction

For NGOs intent on taking cases to the European Court of Human Rights on behalf of vulnerable persons, L.R. v. North Macedonia makes for interesting reading. The Court clarified its jurisprudence on the standing of NGOs to submit applications on behalf of certain persons without express authorization. It also dealt with the state’s obligation to prevent and investigate claims of ill-treatment of patients in health institutions.

Facts

The applicant’s parents had suffered from a mental disability. They had abandoned him after his birth and he was placed in an orphanage. A Social Welfare Centre was appointed as his guardian. At the age of three, he was diagnosed with a mild form of mental disability and a severe form of physical disability. He was placed in a rehabilitation institute, from which he was discharged when he was eight years old.

The Social Welfare Centre which was his guardian contacted another rehabilitation institute and asked whether the applicant could be accommodated there. The institute answered that it was not designed for persons with mental disabilities but for individuals with physical disabilities.

The Social Welfare Centre decided that the applicant should be placed in the institute anyway. Some 16 months later, the Ombudsman visited the institute and found the applicant tied to his bed. In his annut report on human rights in North Macedonia, he singled this out as a human rights violation.

Following the public presentation of the Ombudsman’s report the Helsinki Committee for Human Rights in Skopje, an NGO, filed a criminal complaint against staff members of the rehabilitation institute. Staff members were questioned by a public prosecutor.. They stated that their institute, as they had informed the applicant’s guardian before, was not equipped to accommodate persons with mental disabilities. The applicant had been a hyperactive child who needed constant supervision – which they could not provide. They had feared that he would escape and endanger himself, in particular since there was a very vivid road directly in front of the institute. Therefore, they had decided to tie the applicant up with light ropes for his own safety.

The public prosecutor dismissed the case on the grounds that the suspects had acted without the mens rea required for a criminal offence, since their intention had been to protect the applicant.

The Helsinki Committee submitted an application to the European Court of Human Rights on behalf of the applicant; it had not been formally authorized by the applicant or his guardian to do so.

Legal assessment

Admissibility

Standing of the NGO

The European Court of Human Rights examined the admissibility of the application. In particular, it dealt with the question whether the Helsinki Committee had been entitled to lodge the application on behalf of the applicant.

Requirement to be a victim

A person submitting an application has to be able to claim to be a victim of a violation of the European Convention on Human Rights. That means in general that the applicant has to be directly affected by the violation. He may ask others – e.g. a NGO or an attorney – to represent him. In this case, he has to authorize them to act on his behalf. This requirement was not met. The applicant , a minor with a mental disability, had not authorized the Helsinki Committee to represent him before the Court.

Exceptions established in Campeanu

The Campeanu case

In Centre for Legal Resources on behalf of Valentin Campeanu v. Romania, the Court accepted that NGOs may act on behalf of victims without express authorization in exceptional circumstances. The case concerned a man of Roma origin who was HIV-positive and suffered from a mental disability and who had been severely neglected in the institution in which he had been placed (the applicant had died before the application to the ECtHR had been filed). In view of these circumstances, the Court granted the Legal Resources Centre the right to act on the applicant’s behalf – to avoid serious gaps in the human rights protection afforded to persons who are particularly vulnerable and at the same time unable to take action on their own.

Association for the Defence of Human Rights on Romania

In the same vein, the Court held in Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v Romania that an NGO from Romania had standing to act on behalf of a mentally disabled man who had been incarcerated. He had repeatedly hurt himself in prison, but not received adequate care. Finally, he had died after inserting a nail into his forehead. Members of the applicant NGO had visited Mr Garcea in prison and had submitted complaints to various authorities on his behalf.

Comite´ Helsinki Bulgare c. Bulgarie

In Comite´Helsinki Bulgare c. Bulgarie (Helsinki Committee Bulgaria v. Bulgaria), on the other hand, the Court decided that the NGO submitting the application had no standing. As Legal Resources Centre on behalf of Valentin Campeanu, the case concerned children who had been abandoned after birth, suffered from mental disabilities and had been placed in foster homes, where they had not received adequate care (to say the least). They had died and no criminal investigation had ensued. A TV documentary about the situation in the foster homes was aired and the Helsinki Committee of Bulgaria filed a criminal complaint. Since this complaint was ultimately dismissed, the Helsinki Committee submitted an application to the European Court of Human Rights on behalf of the two children.

The Court held that the applicant organisation did not have standing and declared the application inadmissible. It pointed out that the case resembled Campeanu in that the victims had been particularly vulnerable; it also stated that, like in Campeanu, there had been no other person to act for the children, since they had no contact to their relatives and no guardian had been appointed for them. Yet the Court distinguished the case from Campeanu in that the Helsinki Committtee Bulgaria had only learned about the fate of the two children when the documentary had been broadcast. Previous to that, it had not been in contact with them, while the Legal Resources Centre in Campeanu had become aware of the victim when they had visited the foster home in which he stayed and had immediately taken action by submitting complaints on his behalf. The Court also attached weight to the fact that on one case the Helskinki Committee Bulgaria had started acting on behalf of the children almost two years after the child had died.

Standing of the Helsinki Committee for Human Rights in Skopje

The Court examined if there were exceptional circumstances which justified granting the Helsinki Committee the right to act on behalf of L.R. One of the differences to Campeanu was that a guardian had been appointed to act in the interest of L.R. Thus, there were, in principle, persons mandated to act on his behalf. However, the Court pointed out that the Social Welfare Centre itself had been accused of neglecting its duties in the domestic proceedings. It could therefore not be expected that it would take complaints regarding the insufficient care for the applicant to the ECtHR.

Also, the Court stated that the Helsinki Committee had started acting on behalf of the applicant shortly after the Ombudsman’s report containing information on his case had been published. This was a feature distinguishing the case from Helsinki Comite v. Bulgarie.

Conclusion

On the basis of judgments rendered so far, it appears that the Court deems that NGOs have standing to act on behalf of applicants without express authorization if

  • The applicant is in a particularly vulnerable position, e.g. because he is a minor or he suffers from a mental disability
  • No other persons are available to act effectively on the applicant’s behalf
  • The NGO has already acted on behalf of the applicant at the domestic level
  • The NGO has started actin within short time after it learned about the case
  • Whether the NGO has been recognised as entitled to act on behalf of the victim at the domestic level does not appear to be decisive. If it has, that is an argument in favour of granting the NGO locus standi; if it has not, that does not necessarily mean it does not have standing before the European Court of Human Rights

Merits

As to the merits, the Court referred to is well-established jurisprudence to the effect that states are under a positive obligation to ensure that individuals placed in foster homes or similar institutions are not subjected to ill-treatment.

The Court pointed out that the applicant had been placed in an institute despite indications that it was not equipped to accommodate him and to provide appropriate care. It stated that the applicant had been tied up repeatedly over a protracted period of time without legal basis. This was in violation of article 3 ECHR.

The Court also found that North Macedonia had violated its obligation arising from article 3 to carry out an effective investigation.

Article 8 ECHR and the ‘right to be forgotten’ – M.L. and W.W. v. Germany

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For all the discussion about the General Data Protection Regulation, it should not be forgotten that article 8 ECHR encompasses important aspects of data protection, too. The European Court of Human Rights has developed a large body of case law in that regard. The recent judgment in M.L. and W.W. v. Germany adds to this jurisprudence.

Facts

The applicants had been convicted to lifelong imprisonment for murdering the popular German actor Walter Sedlmayer. The conviction was entirely based on circumstantial evidence and the applicants had protested their innocence until the end. After the judgment became final, they had attempted several times to re-open the proceedings, presenting what they deemed new exculpatory evidence. On at least one occasion, they had informed the media about their efforts to have the judgments against them quashed. In 2007 and 2008, they were released from prison. 

In 2000, the German radio station ‘Deutschlandradio’ published a report about the murder. The full names of the applicants were mentioned. A transcript of the report was available on the website of the radio station until at least 2007. 

The applicants initiated civil proceedings against the radio station. They demanded that their names be anonymized and their personal data removed from the transcript. After the first two instances had granted their request, the Federal Court of Justice ruled in favor of the radio station. It pointed out that a balance had to be struck between the applicants’ reputation and personality rights on the one hand and the right to freedom of expression exercised by the radio station on the other hand. The interest of a convicted criminal not to be confronted with his crime anymore grew stronger over the time. In particular after the person in question had served his sentence in full it was not easy to justify to publish his name. However, the right to be forgotten was not absolute. Freedom of expression had to be taken into consideration, too. Factors to be considered when balancing these considerations were the gravity of the interference with the reputation, the way in which the perpetrators were portrayed as well as how widely the publication was distributed. On the basis of these factors, the Federal Court of Justice ruled that publishing the personal data in the archive was lawful.

It stated that the crime in question had attracted a lot of public attention. Also, the report had not only portrayed the applicants as perpetrators but had also provided information on their version of the facts. Finally, the archive on the website of ‘Deutschlandradio’ was not very widely read. Thus, the freedom of expression had to prevail over the protection of the applicants’ personality rights. 

The applicants also initiated separate proceedings in regard to a publication on the website of German news magazine ‘Der Spiegel’. ‘Der Spiegel’ had published on its website a so called ‘dossier’ under the title ‘Walter Sedlmayer – assasination with a hammer’. The ‘dossier’ contained a collection of articles pertaining to the crime and the ensuing criminal procedure. One of these articles contained the applicants’ name and information on their family background. In addition to that, there were photos showing the applicants in court and next to the murdered actor. 

The Federal Court of Justice deemed these publications lawful, too.

Finally, the German newspaper ‘Mannheimer Morgen’ featured an article in which the applicants’ names were mentioned. Again, the Federal Court of Justice held that the publication was lawful.

The applicants submitted an application to the European Court of Human Rights.

Legal assessment

General remarks

The Court pointed out that the notion ‘private life’ was a broad term not susceptible to exhaustive definition. It could also encompass various aspects of a person’ identity, among them the legitimate expectation that certain information regarding a person would not be disseminated. If information about a person was spread contrary to legitimate expectations this person harbored, this might interfere with the right to private life. Article 8 ECHR could, however, not be invoked to have information or reports removed from the public domain if the spreading of this information was a foreseeable reaction to a person’s own behavior. 

The Court stated that a balance had to be struck between the applicants’ legitimate interest that their right to private life be protected and the freedom of expression exercised by the media concerned. The Court underscored the essential role free media played in a democratic society. it was also a corollary task of the media to put information at the disposal of the public by storing it in publicly accessible archives. This task was, if not the main duty of the media, of certain importance.

The European Court of Human Rights pointed out that national authorities enjoyed a certain margin of appreciation when striking the balance between the respect for private life and the freedom of expression. If national authorities weighed the competing interests in accordance with the criteria developed in the Court’s jurisprudence, strong reasons were required for the Court to substitute their judgment with its own. 

Difference between media and search engines

The Court pointed to the difference between search engines and the publication of information in the internet through media: The media made the information available, while search engines only contributed to their distribution (or amplified them). Thus, the activity of media concerned the core of freedom of expression, which was not the case for search engines. Consequently, the process of striking the balance between the protection of private life and the interest of persons disseminating information could lead to different results in regard to media and search engines respectively.

The Court made reference to the judgments of the European Court of Justice in the matter ‘Google Spain’ , in which the European Court of Justice had dealt with the ‘right to be forgotten’. In this matter, an individual had demanded from a Spanish newspaper as well as from Google to remove information about him in connection to a insolvency or to ensure that this information was not shown in search results when internet users ‘googled’ his name.  The European Court of Justice pointed out that the  justification of the request might have to be assessed differently in regard to the newspaper and the search engine, since the former could invoke freedom of the press, the latter not. 

Criteria developed in the Court’s jurisprudence

Contribution to a debate of public interest

The Court pointed out that the murder of the actor Walter Sedlmayer and the ensuing criminal trial had attracted a lot public attention. This held true not only for the initial proceedings but also for the attempts to achieve a re-opening of proceedings. The Court endorsed the balancing exercise undertaken by the Federal Court of Justice. According to the Court it did not make a difference that the applicants only demanded an anonymization of the reports, not their deletion. The removal of personal data constituted an interference with the freedom of expression, too.

Notoriety of the applicants and topic of the report

The European Court of Human Rights pointed out that the German courts had not dealt with this criterion. It stated that the applicants had not been known to the public prior to their crime; their notoriety had been diminished in the course of time but not disappeared completely.

Previous conduct of the applicants

The Court pointed out that the applicants had turned to the media to inform them about their attempts to have the proceedings re-opened and the conviction overturned. Thus, their interest in remaining anonymous was diminished.

Form, content and consequences of the publication

The Court noted that most of  the articles had been objective. Also, the facts that the applicants protested their innocence and had tried to a achieve a re-trial had been mentioned, too. While some articles published by ‘Der Spiegel’ had been questionable, all reports were within the confines of what was protected by freedom of expression.

Photos

The Court briefly dealt with the photos that had been published. It stated that the pictures were 13 years old which rendered it less likely that somebody was going to recognize the applicants on the basis of these photos.

The European Court of Human Rights concluded that the German courts had stayed within their margin of appreciation when declaring the publication lawful. The Court did not find a violation of article 8 ECHR.

 

African Commission urges Anvil Mining to pay compensation to victims in Congo

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The African Commission on Human and Peoples’ Rights has urged Anvil Mining Company to pay compensation of victims of a massacre in the Democratic Republic of Congo. The Commission considers that Anvil Mining has been complicit in the events.

Anvil Mining Company has offices in Canada and Australia. Its main area of business is copper mining in Congo. In 2004, a small group took control of the city of Kilwa in Eastern Congo. The group was initially comprised of some ten members. They carried only light weapons and claimed to be member of a rebel group whose name had hitherto been unknown. Anvil was running a copper mine near the city of Kilwa.

The Congolese army (FARDC) launched an attack on the city in a bid to regain control. During the attack, the 62. Brigade of the Congolese army used excessive force. 73 people lost their lives, more than 20 of them by summary executions. Arbitrary detentions took place and houses and shops were looted.

Eye witnesses stated that vehicles of Anvil mining had transported soldiers to Kilwa. The company later on confirmed this, inter alia in the course of an investigation of the incident by the UN-Mission in the Democratic of Congo (MONUC). Witness also claimed that vehicles of the company had been used to transport bodies and looted goods away from Kilwa. Anvil Mining denied these allegations.

The prosecution indicted several persons for human rights violations in Kilwa, among them were several soldiers and three employees of Anvil Mining. A military court acquitted the company’s employees (and several other persons).

Relatives of victims of the massacre filed criminal complaints in Australia. Australian police instigated an investigation but discontinued it following the acquittal of the company’s employees by the Congolese military court. In 2010, a Canadian NGO supported relatives of victims in initiating a civil action in Canada, where Anvil had offices. However, the Supreme Court of Canada ultimately ruled that Canadian courts had no jurisdiction in the case.

In the same year, relatives of victims submitted a complaint to the African Commission on Human and Peoples’ Rights. The African Commission decided on that complaint in August 2017. It held that the Democratic Republic of Congo had violated its obligation to secure human rights on its territory. In the decision, the African Commission also dealt with the role Anvil Mining had played in the incident.

The Commission was unable to render a decision which was directly binding on the company, since the African Commission’s purview is to control the observance of the African Charter on Human and Peoples’ Rights and of other international human rights treaties. International treaties on human rights are concluded by state parties and only impose obligations on states. Consequently, the African Commission has only jurisdiction to rule on states’ actions or omissions. The  Commission decided that the Democratic Republic of Congo had to pay compensation to victims and their families.

At the same time, the Commission made it clear that it attributes responsibility to Anvil Mining, too. It issued a letter urging Anvil Mining to contribute to payments to victims and announced to inform the public about any reaction on the part of Anvil Mining.

The case highlights some problems of international human rights protection. On the one hand, it sheds light on the role of transnational corporations. They are often directly responsible for human rights violations or complicit in infringements of human rights committed by governments. Yet there are insufficient legal instruments to hold the accountable. According to the current understanding of international human rights law, human rights are legally binding only on states (an interpretation which comes increasingly under attack). International human rights courts therefore have no jurisdiction over actions of corporations.

Courts in the states in which the corporations are domiciled frequently deem that they have no jurisdiction on actions committed abroad (in particular when a subsidiary of the company acted). And courts in the countries in which the violations occured are often not truly independent or corrupted.

In addition to that, the case points to another problem of human rights protection in Africa: It took the African Commission seven years to deliver a decision – although the government of DRC did not participate in the proceedings and although the Commission did not conduct an oral hearing. Effective human rights protection requires that proceedings are concluded within effectively and that victims’ rights are upheld within reasonable time.