I put some training material on article 1 of Protocol 1 to the ECHR (right to property) online. It can be found here .
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Admissibility of an application lodged by an NGO on behalf of the deceased victim – Centre for Legal Resources on behalf of Valentin Campeanu v. Romania
In Centre for Legal Resources on behalf ofValentin Campeanu v Romania, the Grand Chamber of the European Court of Human Rights has modified the Court’s jurisprudence on the admissibility of applications in an important way. Establishing a new exception from the requirement that the applicants must claim to be a victim of a violation of a right enshrined in the Convention, the ECtHR accepted that a Nongovernmental Organisation may in very specific circumstances have standing to submit an application on behalf of the person directly affected by a human rights violation, even though this person had not given the NGO power of attorney.
The case concerned Mr Valentin Campeanu, a Romanian citizen of Roma ethnicity who died in a psychiatric hospital.
Mr Campeanu had been abandoned by his mother at birth and had grown up in an orphanage. When he was about five years old, he had been diagnosed as HIV positive. He was also found to have an IQ of 30, constituting a ‘profound intellectual disability’.
When Mr Campeanu reached the age of 18, the competent Romanian authorities decided that he be placed in a psychiatric hospital. The hospital informed the authorities that it could not admit Mr Campeanu, since it was not equipped to provide care for persons with HIV and a mental disability.
A protracted conflict ensued between various institutions and health care facilities regarding the admission of Mr Campeanu and the treatment he should receive. Mr Campeanu was transferred to different hospitals for short periods of time. During this period, his state of health and his general condition deteriorated significantly. He was malnourished, lacked proper clothing and necessary medication was not administered.
In February 2004, staff members of the Centre for Legal Resources visited the facilities. They became aware of the condition Mr Campeanu was in and asked for his immediate transferal, which was refused. Shortly after, Mr Campeanu died. Unaware of his death, the Centre for Legal Resources sent urgent letters to various officials (including the Minister of Health) and alerted them to Mr Campeanu’s case.
When the Centre for Legal Resources learned of Mr Campeanu’s death, they filed a criminal complaint. However, the ensuing investigation did not lead to any findings of misbehavior.
The Centre for Legal Resources filed an application with the European Court of Human Rights.
Admissibility
An important part of the judgment deals with the admissibility of the application. The Romanian government argued that the applicants did not have standing to submit an application on Mr Campeanu’s behalf.
Article 34 ECHR requires that the applicant has to claim to be a victim of a violation of one of the rights guaranteed by the Convention. The applicant must be directly affected by an action or omission which infringes upon his rights under the Convention. Legal acts or the conduct of a state cannot be challenged before the European Court of Human Rights just on the grounds that the applicant thinks that they are not in compliance with the ECHR, but the applicant has to substantiate that he or she was affected by said conduct.
The Centre for Legal Resources, which had submitted the application, had not been affected by the conduct of the Romanian state. The victim was Mr Campeanu. He had neither filed the application nor given the Centre for Legal Resources power of attorney or otherwise authorized them to act on his behalf.
The European Court of Human Rights has acknowledged a number of exceptions from the rule that only the victim have standing before the Court: Close family members who suffer from effects of a human rights violation directly affecting someone else may in certain circumstances have the right to submit an application as so called indirect victims (see for example Kurt v Turkey in which the Court held that the mother of a young man who was detained illegally and tortured had standing to file an application). In many cases, in which the applicant died before the proceedings before the Court were finalized, the European Court of Human Rights has granted relatives permission to pursue the case. Even in cases where the victim died before he could submit an application, the Court has sometimes accepted that family members could lodge an application if they had an interest in doing so.
However, all these exceptions have in common that the persons who pursued the case had close ties to the (direct) victim and could substantiate on interest in the outcome of the case on their own. None of this applied to the Centre for Legal Resources.
Regarding NGOs, the European Court of Human Right had held on several occasions that they do not have standing to submit an application on behalf of persons or groups they are advocating for – unless they have been expressly authorized by direct victims.
Consequently, the Romanian government argued that the Centre for Legal Resources did not have standing.
The European Court of Human Rights was faced with a difficult decision: Its prior jurisprudence suggested that the application had to be dismissed as inadmissible. While previous judgments and decisions are not formally binding to the Court, it does not deviate from them without strong justification. Also, declaring the application admissible was not easy to reconcile with the express requirement that the applicant had to be a victim. It might entail the risk of softening this criterion and opening the gate to introducing elements of an ‘actio popularis’ into the Convention contrary to its language.
On the other hand, it was the very particularity of Mr Campeanu’s situation that there had been virtually no one to represent his interests. He had been an orphan with no financial means and an intellectual disability, belonging to a marginalized ethnic group and suffering from a disease often giving rise to discrimination. It is hard to imagine how somebody could be more vulnerable. While he was in obvious need for special care and attention, his situation made it impossible for him to take the initiative to obtain assistance. Rejecting the application as inadmissible on the grounds that the Centre for Legal Resources did not have power of attorney from Mr Campeanu in a way would have meant perpetuating this situation.
The European Court of Human Rights held that the applicants had standing to lodge an application with the Court. The Court pointed out that the rights enshrined in the Convention were to be practical and effective. It also pointed out that its judgments did not only serve the purpose to decide the individual cases brought before it, but also to advance human rights in Europe.
The Court stated that rejecting the application submitted by the Centre for Legal Resources would allow Romania to escape from its accountability in the case of Mr Campeanu. Considering this and given that the Legal Resources Centre had already acted on Mr Campeanu’s behalf on the domestic level, the European Court of Human Rights held that the application was admissible.
Four judges criticized the solution opted for by the majority in their separate opinions. Judge Pinto de Albuquerque protested that the Court should have developed a general approach to cases concerning particularly vulnerable victims rather than basing its ruling on the exceptional circumstances of the individual case. In his view, the case had given rise to important questions of the interpretation of human rights treaties and of the representation of members of vulnerable groups as well as to the limits of judicial powers. The Court had, in his opinion, failed to answer these questions.
Merits
The Court found violations of the right to life under article 2 of the ECHR and of the right to an effective legal remedy (article 13 ECHR). It stated that Romania had failed to take necessary precautions to ensure the protection of Mr Campeanu’s life despite his bad condition and vulnerable state. It also held that Romania had not undertaken the effective investigation of the circumstances of Mr Campeanu’s death
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PRISM and TEMPORA before the European Court of Human Rights – Big Brother Watch and others v UK
As was to be expected, a case regarding the mass surveillance of e-mails and other communication by the American NationalSecurity Agency (NSA) and the British Government Communications Headquarters(GCHQ) have reached the European Court of Human Rights. Four applicants have submitted an application against the UK in which they contend that the collection of information on internet based communication by the British intelligence agency and the obtaining of information from the NSA breaches their rights under article 8 ECHR.
The applicants are Big Brother Watch, an organization dedicated to data protection and privacy rights, the British section of the writers’ association PEN, Open Rights Group, which advocates for freedom of expression and Constanze Kurz, a German expert on data protection and internet communication.
Edward Snowden has revealed that the United States National Security Agency has put into place programs (PRISM, UPSTREAM) for the large-scale monitoring of internet based communication such as e-mails, chats, video transmissions etc. The programs allow for the scrutiny of the content of communication as well as the storage and analysis of so called metadata, i.e. information about participants of communication, IP addresses, place and times.
According to the information provided by Edward Snowden, the British intelligence service was granted access to the data which had been obtained by the NSA. In addition to that, it was uncovered following Snowden’s leaks that the British Government Communication Headquarters had run its own surveillance program, called TEMPORA. It had concerned the strategic monitoring of e-mails and other communications over the internet – that means the interception of a large number of e-mails and its analysis and scrutiny on the basis of certain key words and phrases.
The applicants contend that their rights under article 8 ECHR have been infringed upon in two ways:
- Firstly, according to them, the British intelligence service has monitored their communication without sufficient legal basis.
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Second, it has obtained information on their communication via the internet from the NSA without sufficient legal basis.
The Court has communicated the case to the British government; it has provided a summary of the main facts of the case and invited the parties to submit their observations on three questions, which the Court considers particularly relevant for the outcome of the case. Two of the questions concern the admissibility, the other the merits.
With regard to the admissibility, the Court put the question whether the applicants can claim to be victims of violations of their rights under article 8 ECHR. This refers to the requirement laid down in article 34 ECHR, which sets out that applicants must claim to be a victim of the violation of a right under the European Convention on Human Rights.
Applicants cannot request an abstract scrutiny of legal acts or actions they consider to be contrary to the ECHR; there is no ‘actio popularis’ under the Convention. Applications are only admissible if applicants can substantiate that they are directly affected by an action of the state. However, applying this requirement strictly would put the applicant in a very difficult situation when measures are concerned which are usually applied in secret. The applicant cannot know whether he is subjected to such measures and unable to substantiate his suspicion that he is. As a consequence, secret measures – such as the interception of communication – would in practice be immune to scrutiny by the Court and individuals bereft of protection.
In order to enable control of secret measures by the Court and ensure that the protection afforded by article 8 ECHR is effective, the European Court of Human Rights has lowered the bar for the admissibility of applications in this area.
In Association for EuropeanIntegration and Human Rights v Bulgaria, the Court held that
‘to the extent that a law institutes a system of surveillance under which all persons in the country concerned can potentially have their mail and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification, it directly affects all users or potential users of the postal and telecommunication services in that country. The Court therefore accepted that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting them, without having to allege that such measures were in fact applied to him or her’.
In Iordachi v Moldova, the European Court of Human Rights held that the applicants could claim to be victims of phone interceptions because they were human rights lawyers and their communication was likely to be incepted due to their regular contacts with persons accused of criminal offences.
All four applicants claim that their communication is likely to be subjected to surveillance, because they are outspoken critics of policies applied in relation to national security, of interference with private communication and civil liberties and because they maintain frequent contacts with persons advocating for individual freedom and critical of governments and security services.
The second question asked by the Court regarding the admissibility concerns the exhaustion of domestic remedies. Prior to submitting an application to the European Court of Human Rights, applicants have to avail themselves of all domestic remedies which are accessible and effective (article 35 ECHR). This reflects the principle that the control by the Court is subsidiary. Before having to answer to an international institution, states shall be given the opportunity to iron out mistakes on their own. But applicants only have to exhaust such legal remedies which are effective, that means which bear the prospect of succeeding.
In the UK, the interception of communication is governed by the Regulation of Investigatory Powers Act. This act provides for a court, the Investigatory Powers Tribunal (section 65 of the act), which is mandated to oversee the interception of communications.
If courts in the UK deem that a legal provision contravenes the Convention, they can in general make a statement of incompatibility (see section 4 of the Human Rights Act), which does not make the provision in question inapplicable, though. The European Court of Human Rights asked the parties whether the Investigatory Powers Tribunal could have made such a statement and whether this would have been an effective domestic remedy.
If courts in the UK deem that a legal provision contravenes the Convention, they can in general make a statement of incompatibility (see section 4 of the Human Rights Act), which does not make the provision in question inapplicable, though. The European Court of Human Rights asked the parties whether the Investigatory Powers Tribunal could have made such a statement and whether this would have been an effective domestic remedy.
The next question asked by the European Court of Human Rights concerns the merits of the case. The Court distinguishes between the receipt of data from the US, their storage, analysis etc. on the one hand and the interception of data, their storage etc. by the British intelligence agency on the other hand.
With regard to both measures, the Court invited the parties to submit observations whether they were ‘in accordance with the law’ and ‘necessary in a democratic society’.
The interception of communications interferes with the right to private life and the right to respect for correspondence, which are enshrined in article 8 paragraph 1. As other articles of the Convention, article 8 ECHR provides that interferences with the rights it protects are justified if they are in accordance with the law, serve certain objectives specified in the article and are necessary in a democratic society.
In accordance with a law does not only require the existence of a law, but also refers to the quality of the legal basis of an interference. The European Court of Human Rights has set out in a number of decisions the criteria which legal acts allowing for the interception of communication have to satisfy (e.g. Kennedy v UK, Weber and Saravia v Germany ). For example, the pertinent laws and regulations have to be publicly accessible (Liberty v UK), they have to limit the duration of interceptions, they have to define clearly in which circumstances interceptions are permitted, they have to contain clear regulation regarding the storage, deletion and security of data obtained and they have to provide effective mechanisms for external control (more detailed information can be found here).
Now the parties will submit their observations on these questions for the Court to decide.
Freedom of assembly in Turkey
The crack-down on protesters in Istanbul has prompted much international criticism. Considering Turkey’s track record before the European Court of Human Rights, the Turkish government’s heavy-handed response to the demonstrations does not come as a surprise.
Turkey is one of the ‘main sinners’ with regard to observance of the ECHR, i.e. it belongs to the five countries responsible for 70 % of the cases in which the ECtHR found a violation of the Convention (the others are Russia, Ukraine, Serbia and Italy). From the country’s accession to the ECHR in 1954 until 2012, the European Court of Human handed down 2521 judgments against Turkey in which it found at least one violation of the European Convention on Human Rights (by way of comparison, Germany, whose number of 80 Million inhabitants is roughly comparable to Turkey’s 73 Million was found in violation of the Convention in 257 cases).
While violations of the right to freedom of expression (215 cases) and freedom of assembly (57 cases) do not account for the bulk of judgments against Turkey, they are far from being exceptions. In a 2011 report on ‘Freedom of expression and media freedom in Turkey’, the Council of Europe Commissioner on Human Rights ‘note[d] that violations of Article 10 of the European Convention on Human Rights (‘ECHR’) on freedom of expression have consistently taken a prominent place in the case-law of the Court concerning Turkey for more than a decade and continue to do ‘.
As far as the freedom of assembly is concerned, the problem does not appear to lie so much in the legal framework, but rather in the way it is applied, in a lack of appreciation of the importance of the right to peaceful assembly on the part of the Turkish authorities.
As far as the freedom of assembly is concerned, the problem does not appear to lie so much in the legal framework, but rather in the way it is applied, in a lack of appreciation of the importance of the right to peaceful assembly on the part of the Turkish authorities.
In Özalp Ulusoy v Turkey, for example, the applicant had followed an appeal by Turkish non-governmental organization to demonstrate Istanbul to demonstrate against killings in Syria and to commemorate the victims of a massacre in Halabja. Although Turkish law as it stood at the time required that the authorities be informed officially about the planned demonstration in advance, the organizers had failed to notify the competent bodies.
Members of the security police arrived. They announced that the demonstrations had not been authorized and asked the participants to leave. 32 persons were arrested and placed into a holding cell for a night. After her release, the applicant filed a complaint to the state prosecutor. She stated that she had been mistreated during her arrest; policemen had thrown her on the ground, punched her and kicked her. She submitted a medical certificate describing her injuries, but the prosecution dismissed the case. The applicant brought a case to the European Court of Human Rights contending that her rights under article 11 (freedom of assembly), article 3 (prohibition of torture) had been breached. The Government argued that there was no infringement on the right to freedom of assembly, for the demonstration had been illegal.
The Court rejected this argument. It stated that the applicant had been searched by police on her way to the place of the demonstration and that a large number of police had been present, both of which rendered it unlikely that the authorities had been unaware of the event. It also reiterated that while the contracting states of the European Convention on Human Rights are entitled to entrench requirements for prior notice of demonstrations in their respective legal frameworks, it was important that they demonstrate a certain tolerance towards peaceful demonstrations in order to ensure that the right to assembly not be rendered meaningless. It stated that the demonstration in which the applicant had participated had not posed any threat to public order and security other than blocking the traffic. In light of these circumstances the Court ruled that the brutal crackdown on the demonstrators could not be justified as necessary in a democratic society. Consequently, it found a violation of the right to assembly. (In addition to that, the European Court of Human Rights held that article 3 enshrining the prohibition of torture and ill-treatment had been breached).
In Disk and Kesk v Turkey, the applicants were trade unions. Before labor day 2008, they notified the authorities that they intended to hold a gathering at Taksim square to celebrate labor day and to commemorate their friends who had lost their lives during the labor day demonstrations in 1977. The competent governor authorized the gathering of representatives of trade unions, but prohibited at the same time any demonstration on a larger scale. Press releases were issued stating that any kind of demonstration on Taksim square was illegal and unconstitutional and represented a threat to public order.
On 1 May people started gathering in front of DISK headquarter. Police asked them to disperse. The crowd refused, stating that they were merely waiting in front of the headquarter, a pedestrian zone, which did not violate any law. Police started dispersing the group by using tear gas, pressurized water and paint.
The applicants contended that this violated their rights under article 11 ECHR (right to assembly). The European Court of Human Rights pointed out that states must not only safeguard the right to peaceful assembly, but that it also must refrain from applying unreasonable indirect restrictions upon this right. It reiterated that demonstrations may cause a certain disruption and disturbance to traffic, but that states have to display a certain measure of tolerance towards peaceful gathering to make the right to assembly practical and effective. Although the authorization which had been necessary according to domestic law had not been issued, the Court found the reaction of the state and the measures taken to disperse the crowd disproportionate. It found Turkey in violation of article 11 ECHR.