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ECHR - Business and Human Rights

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ECtHR: No jurisdiction for asylum claims filed from abroad – M.N. and others v. Belgium

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In M.N. and others v. Belgium, the Grand Chamber of the European Court of Human Rights has examined whether the Convention is applicable to asylum claims filed from foreign embassies. The Court

Facts:

The applicants had travelled to the Belgian embassy in Beirut. The applied for visa in order to be able to travel to Belgium and to claim asylum.

The visa applications were denied. The applicants appealed, ultimately to no avail. The applicants initiated judicial proceedings in Belgium but their visa requests were denied. They never entered Belgian territory.

Legal Assessment:

The applicants submitted an application to the European Court of Human Rights. They relied in particular on article 3 ECHR. They argued that by denying them visa, Belgium had exposed them to the risk of being tortured. In addition, they referred to article 6 and 13 ECHR.

Pursuant to article 1 ECHR, the contracting states shall secure the rights enshrined in the Convention to everybody within their jurisdiction. The question whether the applicants could invoke the protection afforded by the ECHR hinged on whether they were within Belgian jurisdiction when they filed their asylum claim.

It is long-standing jurisprudence of the Court that the term jurisdiction has to be understood primarily in a territorial sense. States have jurisdiction over the territory within their borders.

However, the Court has also accepted exceptions to this principle:

  • Effective control over an area; if a state exercises effective control over an area outside of its territory, it has jurisdiction over that territory. That is most frequently the case in the context of military conflicts. For example, in Al-Skeini v UK, the Court held that the UK exercised effective control over parts of Iraq during the war in Iraq. Consequently, it had to observe the ECHR during its engagement.
  • Physical control over a person. States are bound by the ECHR if they exersice physical control over a person outside of their territory. An example is the Öcalan case. PKK leader Öczalan was apprehended by members of Turkish security forces in Kenia and taken on on airplane. The Court ruled that he was within Turkey’s jurisdicton even though he was not on Turkish ground.
  • In addition to that, the  Court has recognized in Güzelyurtlu v. Turkey that the launching by a state of a criminal investigation outside of its territory may create a ‘jurisdictional link” which brings the matter into the state’s jurisdiction. In that case, a Turkish businessman and his family had been killed on the territory of the ‘Turkish Republic of Northern Cyprus”. Turkish authorities had started an investigation. The Court held that this investigation had to satisfy the requirements of an ‘effective investigation’ under article 2 ECHR (in addition to that the Court stated that Turkey had also jurisdiction since it exercised effective control of the ‘Turkish Republic of Northern Cyprus’).

The applicants argued that they had been within Belgium’s jurisdiction when submitting their request. Belgium had established rules regarding the entry into the country which were enforced by staff working with the embassy. Thus, they had been under their jurisdiction. Pointing to the Court’s long-standing jurisprudence that individuals must not be expelled if there is a likelihood that they will be tortured, they submitted that exposing them to the risk of torture by denying their visa request violated the ECHR.

The Court rejected the argument that the processing of the visa applications by staff of the Belgian embassy had brought the applicants into Belgian jurisdiction. It stated that the classic test had to be applied to establish whether Belgium had had jurisdiction.

The Court pointed out that staff of the embassy had never exercised physical control over the applicants. The applicants had entered the embassy voluntarily and had been free to leave at any time.

The Court’s jurisprudence on expulsion was not pertinent, since the applicants had never been on Belgian territory. Güzelyurtlu v Turkey was not pertinent either. In that case, the Turkish authorities had launched in investigation on the basis of their obligations under article 2 ECHR. This was, according to the Court, very different from an administrative procedure initiated by the applicants.  Consequently, Belgium had not had jurisdiction.

The Court declared the application inadmissible.

North Macedonia ranks 58 out of 128 countries in the Rule of Law Index 2020

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Yesterday, the World Justice Project published its ‘Rule of Law Index 2020’. The World Justice Project is an international NGO committed to advancing the rule of law. The main areas of its work are research and scholarships, engaging, i.e. activities aimed at developing a global network and the Rule of Law Index. The rule of law index provides information on the status of the rule of law in 128 countries. Countries are ranked on the basis of eight factors such as constraints on government, absence of corruption, open government and fundamental rights. The reports mainly draws on surveys in households in the respective countries and questionnaires answered by legal professionals.

North Macedonia ranked 58 out of 128 countries, placing it 3rd in the Eastern Europe and Central Asia region behind Kosovo (global rank: 54) and Georgia (global rank: 42). Thus, North Macedonia fell back one rank compared to its results in the previous year. The countries rating was negatively impacted by its low score in the category ‘absence of corruption’ and ‘constraints on government powers’ while it received higher scores in the areas ‘order and security’

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. 

 

Marcus Brauer v. Germany

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In Marcus Brauer v. Germany, the European Court of Human Rights held Germany in violation of article 6 ECHR (right to a fair trial)

Facts

The applicant had damaged numerous cars in a parking lot with a hammer and had been confined to a psychiatric hospital pending trial. In the trial, the regional court came to the conclusion that the applicant could not be held criminally responsible for his actions and ordered his confinement in a psychiatric hospital. When confronted with the judgment, the applicant became very agitated. He stated that he did not want to be represented by his ex-officio lawyer anymore and that he wanted to appeal the judgment.

The presiding judge informed the applicant that he could not file an appeal on the spot. He also informed him how and within which time limit he could submit an appeal.

The applicant was taken to a psychiatric hospital, where he calmed down.

The attorney who had represented the applicant wrote him a letter. He stated that he respected the applicant’s wish not to be represented by him anymore. The attorney added that was aware that the applicant intended to appeal the judgment. He provided advice on the time limit for appeal, on the court with which to file the note of appeal and the form to be respected.

Since the attorney’s letter was drafted in slightly ambiguous language, the applicant sent the note of appeal to the wrong court. This court forwarded it to the competent court, but this court received it after the deadline for appeals had expired.

The applicant, represented by counsel again, requested a reinstatement. According to German law, a person who has missed the deadline for an appeal (or another time-bound action) can be granted a reinstatement, provided the failure to observe the deadline was not attributable to him. If reinstatement is granted, the person can still submit the appeal. The applicant stated that the information provided by his counsel on how to file the appeal had been unclear. Therefore, he was not responsible for submitting it to the wrong court, which had caused the delay and resulted in his missing the deadline. He also submitted he had been too agitated to understand the explanation given by the presiding judge of the regional court when judgement had been given in first instance.

The Federal Court of Justice rejected the applicant’s request for reinstatement. It stated that it did not matter whether the advice provided by counsel on how to file an appeal had been sufficiently clear. At any rate, the explanation by the presiding judge following the judgment at the regional court had been sufficiently clear. Therefore, it was the applicant’s fault that he had missed the deadline.

 

Legal evaluation

The European Court of Human Rights held that this decision violated the applicant’s right to a fair trial.

The Court pointed out that article 6 ECHR enshrined the right to access to a court. That right was not granted absolutely; restrictions such as deadlines, formal requirements for filings or court fees were in principle permissible. However, they had to serve a legitimate aim, to be proportionate and must not touch upon the essence of the right of access to a court.

The European Court of Human Rights found that the German Federal Court of Justice had restricted the applicant’s right of access to a court more than permissible under the Convention when denying the motion for reinstatement.

It pointed out that the applicant, who had already been confined to a psychiatric hospital at the time of the judgement of the regional court, had been in a particularly vulnerable position. The Court also underscored that the Federal Court of Justice had been aware that the applicant had been in a state of distress when the presiding judge had advised him on the way to file an appeal.

The Court also considered important that the applicant’s defence lawyer had informed the applicant that the respected his wish not to represent him anymore, although ex-officio lawyers can only be released from their duties by judicial decision.

In view of these factors, the applicant’s responsibility for missing the deadline had been reduced and it had not been justified to deny him access to a second instance.