David Brady Thesis

Introduction
Introduction:
The European Convention for Human Rights developed as a response to the atrocities committed by the Nazi regime in Europe during the Second World War. There were twin concerns which led the Council of Europe to seize the moment in preparing the European Convention. The first was to provide the means through which it was believed that the most serious human rights violations which had occurred during the Second World War could be avoided in the future.1 On 4 November 2000 the Council of Europe celebrated the halfcentenary of its Convention [...] few would have believed it possible on the day that the Convention was signed in Rome [...] that by the turn of the century the Convention would have become the most effective and influential international human rights instrument in the world.2 The Convention itself is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.3 In practice this means that a State cannot therefore escape its obligations by protecting a right in a superficial or self-defeating manner.4 Where a State is alleged to have failed to fulfil its obligations, an application can be made to bring it before the European Court of Human Rights in Strasbourg, France.
It has been considered that with its highly legalistic character and several decades of interpretative jurisprudence, the European Convention on Human Rights has engendered the most sophisticated jurisprudence of any of the international judicial instruments promulgated to protect human rights.5 The Court has delivered more than 10,000 judgments since its first in 1960.6 Thus there has been a wealth of jurisprudential developments across Europe as these judgments are binding on the countries concerned.
Three countries with chequered histories before the Court are the United Kingdom, Turkey and Russia. At first glance the three would traditionally seem to have little in
Clare Ovey & Robin C. A. White, Jacobs & White, The European Convention on Human Rights, 4th Edition, (Oxford University Press), 2006, p2 2 Professor Robert Blackburn and Dr. Jrg Polakiewicz (eds.), Fundamental Rights in Europe, The European Convention on Human Rights and its Member States, 1950-2000, (Oxford University Press), 2001, ix. 3 Artico v Italy, Judgment of 13 May 1980, Series A, No.37; 3 EHRR 1, para.33 4 Karen Reid, A Practitioners Guide to the European Convention on Human Rights, 2nd Edition, (Thomson, Sweet & Maxwell), 2004, p41, I-057 5 Donna Gomien, David Harris, Leo Zwaak, Law and practice of the European Convention on Human Rights and the European Social Charter, (Council of Europe Publishing), 1996, p19 6 http://www.echr.coe.int/50/en/#court (Accessed 22/09/2010)
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Introduction
common with each other, however all three have been frequent respondent States before the Court. One alarming connection shared between all three is that the majority of the cases decided against them stem from specific regions within the countries. In the United Kingdom, the conflict in Northern Ireland has been at the root of a number of important judgments affecting the development of the jurisprudence of the Court. Similarly the South-Eastern, Kurdish region of Turkey and the Chechen region of Russia in the North Caucasus Mountains have been the basis for a large volume of the caseloads of the European Court of Human Rights. While the cases involving the United Kingdom pertaining to the events in Northern Ireland seem to have ceased, in recent times Turkey and Russia have been more regular visitors to Strasbourg with the focus of the scrutiny firmly relating to the Kurdish and Chechen regions respectively. Indeed it has been suggested that if Turkey is the gauge of Strasbourgs past success, Russia will measure its future. Russia is poised to overtake Turkey as Strasbourgs whipping boy [...] Turkey accounted for the lions share of ECHR judgments in 2005 (26 percent, as compared with 7.5 percent for Russia), but Russia accounted for the lions share of applications (17 percent, as compared with 13 percent for Turkey).7
The main objective of this dissertation will be to examine how the European Court of Human Rights has dealt with cases which have emerged as a result of political unrest in the regions of Northern Ireland, South-East Turkey and Chechnya. This is a relatively new area of jurisprudential development, particularly in relation to Article 2 of the Convention concerning the right to life, but the decisions in the cases arising from the unrest in these regions have also helped to shape and clarify the obligations of States in relation to other Convention Articles. They have stemmed mainly from political unrest in these regions, with the fight for independence and the threat of terrorist activities being common issues to all three regions. One of the most seminal decisions was laid down in the McCann and Others v. United Kingdom8 case. The McCann case represented the first major consideration by the European Court of Human Rights of an alleged Article 2 violation. Using this case as a starting point for Chapter 1, this dissertation will trace the development of the jurisprudence of the Court across the three main regions and assess the impact of these regionalised
7
Michael D. Goldhaber, A Peoples History of the European Court of Human Rights, (Rutgers University Press, New Brunswick, New Jersey and London), 2007, p132 8 McCann and Others v. United Kingdom, Judgment of 27 September 1995, Series A, No. 324; (1996) 21 EHRR 97
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Introduction
conflicts with Chapter 2 concerning the Kurdish region of South-East Turkey and Chapter 3 dealing with Chechnya.
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Chapter1:UnitedKingdomNorthernIrelandRegion
Chapter 1:
1.1 - United Kingdom Northern Ireland Region: Introduction: To refer to the situation in Northern Ireland as a conflict is in itself controversial. It has been argued that the term conflict by and large, is favoured by those who are more sympathetic to the nationalist or republican perspective on the unrest in Northern Ireland.9 The conflict has existed for centuries but reignited in the late 1960s. It can be considered that competing nationalisms form the base of the unrest as it is founded on the reality that a sizeable proportion of the population living in the area would rather not be living under a British flag but under an Irish one.10 These competing nationalisms led to resurgence in violent activities in the region, particularly by the I.R.A.
Given that it has been estimated that over 3,700 people have lost their lives as a result of the conflict in Northern Ireland from 1966 onwards, the effectiveness of the right to life guarantee given by the European Convention under Article 211 would seem to be somewhat of a contentious issue. A series of events which have served to add to the estrangement of the local communities: the allegations of police brutality in 1978 investigated by Amnesty International [...] the supergrass trials between 1981 and 1983 in which large numbers of suspects were convicted on the word of former accomplices; the tragic death of eleven prisoners through a series of hunger strikes in 1981 [...] the shoot-to-kill controversy in the early 1980s [...] made a generation of Irish people, as well as many British people
Brice Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland, (Oxford University Press), 2010, p5 10 Ibid. p6 11 Convention for the Protection of Human Rights and Fundamental Freedoms Article 2. Right to life: 1 Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a) in defence of any person from unlawful violence; b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c) in action lawfully taken for the purpose of quelling a riot or insurrection.
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irretrievably cynical about British justice.12 However, the last 15 years have proven to be of fundamental importance in the development of the European Courts jurisprudence surrounding right to life cases, with particular reference to the decisions from the affected region of Northern Ireland, beginning with that of McCann and Others, although the case originated in a different jurisdiction.
1.2 - McCann and Others v. United Kingdom In early 1988 the authorities of Great Britain, Spain and Gibraltar became aware that the Provisional I.R.A were planning a terrorist attack in Gibraltar. It appeared from the intelligence received from observations made by the Gibraltar police that the target was to be the assembly area south of Inces Hall where the Royal Anglican Regiment usually assembled to carry out the changing of the guard every Tuesday at 11.00 hours.13 Three suspected members of an Active Service Unit (ASU) were sighted in Malaga, Spain on March 4th 1988. At a security briefing held at midnight on March 5th between the Commissioner of Police and the Security Services, it was stated that in their opinion: the IRA intended to attack the changing of the guard ceremony on March 8th.14 The ASU comprised Daniel McCann (previously convicted of possessing explosives), Mairead Farrell (previously convicted of causing explosions) and Sean Savage (described as an expert bomb-maker); the attack would be by way of a car bomb; the use of radio-operated remote-control device to detonate the bomb was thought likely...and the suspects were believed to be dangerous, almost certainly armed and likely to use their weapons if confronted by the security forces. On receipt of a report from a soldier who was a bomb-disposal expert, Mr. Joseph Canepa, the Gibraltar Commissioner of Police, decided that the three alleged IRA suspects should be arrested on suspicion of conspiracy to commit murder.15 The form which he signed authorising the military to proceed and intercept the suspects stated: having considered the terrorist situation in Gibraltar and having been fully briefed on the military plan with firearms, request that you proceed with the military operation which may include the use of
12
C.A Gearty & J.A Kimbell, Terrorism and the Rule of Law, A report on the Laws relating to Political Violence in Great Britain and Northern Ireland, (Civil Liberties Research Unit, Kings College London), 1995, p15, 2.14 13 Supra n 8, McCann case, para.13 14 Ibid, para.17 15 Ibid, para.54
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lethal force for the preservation of life.16 Shortly afterwards the suspects were confronted by the soldiers, and they made movements with their hands which was interpreted as a possible attempt to detonate the bomb by way of a radio-controlled device. The soldiers opened fire, and intentionally killed all three suspects at close range.17 However it was subsequently discovered that the suspected terrorists were not armed, they did not have a remote control detonation device nor did the suspected car contain a bomb.18 The soldiers in question admitted that they shot to kill. They considered that it was necessary to continue to fire at the suspects until they were rendered physically incapable of detonating a device. According to the pathologists evidence Ms. Farrell was hit by eight bullets, Mr. McCann by five and Mr. Savage by sixteen.19
The inquest into the deaths was held in Gibraltar. The UK government issued a number of public interest immunity certificates which served to prevent the disclosure of certain information relating to the training regimes of the soldiers and their previous operational histories. The jury at the inquest found by nine votes to two that the killings had been lawful.20 The inquest was criticized in some quarters and considered to be significantly loaded against those who wished to challenge the official version of events[...]fair enough to be an effective means of legitimation, and unfair enough to minimize the risk of serious embarrassment to the Government.21 The relatives of those shot dead by the soldiers issued writs suing the Ministry of Defence alleging the unlawful use of force, but the certificates issued excluded the Crown from prosecution. It has been argued that this effectively prevented the relatives from proceeding with any case either in Gibraltar or the United Kingdom, and prompted them to apply directly to the Commission in Strasbourg.22 Although the Commission held by eleven votes to six that there had been no violation of the right to life as guaranteed by Article 2 of the Convention, the case was referred to the Court.
16 17
Supra n8, McCann case, para.54 Ibid, paras.60-64 18 Ibid, para.198 19 Ibid para.199 20 Supra n9, Dickson, (2010), p255 21 June Tweedie and Tony Ward, The Gibraltar Shootings and the Politics of Inquests, Journal of Law and Society, Vol. 16, No.4 (Winter, 1989), p464-476, at 465 22 Brice Dickson, Northern Ireland and the European Convention, in Brice Dickson (ed), Human Rights and the European Convention, (Sweet and Maxwell, London), 1997, p153
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The McCann case was the first before the Court from any jurisdiction to examine Article 2 in detail23 and therefore how the article was interpreted would prove to be of extreme significance.24 The applicants alleged that the Government have not shown beyond reasonable doubt that the planning and execution of the operation was in accordance with Article 2 para.2 (art.2-2) of the Convention. Accordingly, the killings were not absolutely necessary within the meaning of this provision.25 The Courts initial statements regarding Article 2 confirmed its importance and standing as one of the most important of the Convention provisions stating that as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention[...]as such, its provisions must be strictly construed,26[...]Article 2 read as a whole demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes the situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life,27[...]the use of the term absolutely necessary[...]indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is necessary in a democratic society,28[...]the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate force is used, taking into consideration not only the actions of the agents of the State[...]but also the surrounding circumstances including such matters as the planning and control of the actions.29
As Dickson notes, the phrase everyones right to life shall be protected by law is in one sense more positive than those used in other articles of the Convention, (meaning) that Article 2 expressly requires States to use the law to protect the right. A State cannot simply do nothing and then provide a remedy when the right is violated.30 This can be interpreted to mean that the State is under a positive obligation to protect the right to life and the Court identified this noting that a general legal prohibition of arbitrary killing by the agents of the
Supra n9, Dickson, (2010), p256, fn180, It had indirectly considered Art. 2 in Soering v UK (1989) 11 EHRR 439 and Open Door Counselling and Dublin Well Woman Centre v Ireland (1992) 15 EHRR 244 24 Supra n22, Dickson, (1997), p153 25 Supra n8, McCann case, para.144 26 Ibid, para.147 27 Ibid, para.148 28 Ibid, para.149 29 Ibid, para.150 30 Supra n9, Dickson, (2010) p227
23
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State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State's general duty under Article 131 of the Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.32
The alleged shortcomings of the inquest, (as highlighted by Amnesty International and BritishIrish Rights Watch who complained that no independent police investigation took place of any aspect of the operation leading to the shootings; that normal scene-of-crime procedures were not followed; that not all eyewitnesses were traced or interviewed by the police; that the Coroner sat with a jury which was drawn from a "garrison" town with close ties to the military; that the Coroner refused to allow the jury to be screened to exclude members who were Crown servants; that the public interest certificates issued by the relevant Government authorities effectively curtailed an examination of the overall operation33) were not in themselves found to have breached Article 2 of the Convention. Nor did they find any breach in relation to the actions of the soldiers who admitted that they shot to kill.34 The Court accepted that the soldiers honestly believed, in light of the information that they had been given[...]that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life[...]the use of force by agents of the State in pursuit of one of the aims[...]of Article 2-2 of the Convention may be justified[...]where it is based on an honest belief which is perceived[...]to be valid at the time but subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State.35 However, the Court ultimately found a breach of Article 2, by the narrowest majority of ten votes to nine that having regard to the decision not to prevent the suspects
31
Convention for the Protection of Human Rights and Fundamental Freedoms Article 1. Obligation to respect human rights: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. 32 Supra n8, McCann case, para.161 33 Ibid, para.157 34 Ibid, para.199 35 Ibid, para.200
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from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might[...]be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para.2 (a) of the Convention.36 The nine judges who dissented from the majority opinion, who included President Ryssdal and the three most senior members of the court issued a joint opinion in which they fundamentally disagreed with the majoritys evaluation of the control and organisation of the operation. They opined that in undertaking any evaluation of the way in which the operation was organised and controlled, the Court should studiously resist the temptations offered by the benefit of hindsight.37 Furthermore the accusation of a breach by a State of its obligation under Article 2 of the Convention [...] is of the utmost seriousness [...] we would ourselves follow the reasoning and conclusion of the Commission in its comprehensive, painstaking and notably realistic report. Like the Commission we are satisfied that no failings have been shown in the organisation and control of the operation by the authorities which could justify a conclusion that force was used against the suspects disproportionately to the purpose of defending innocent persons from unlawful violence. We consider the use of lethal force in this case [...] did not exceed what as, in the circumstances [...] absolutely necessary for that purpose and did not amount to a breach by the United Kingdom of its obligations under the Convention.38
Following the decision Dickson noted that the McCann decision is a startling one, although because it is confined to its particular facts it is unlikely to have any significant legal effect beyond requiring a rethink of the (still officially unpublished) firing instructions issued by the Ministry of Defence to its soldiers.39 However in a later work he highlighted that the importance of the Gibraltar case lies in the standards it lays down for the control and organization of operations that result in deaths.40 This serves to reinforce Mowbrays point that whilst not expressly adopting the applicants language of a positive duty both the majority and minority of the Court in McCann scrutinised the authorities organisation and
36 37
Supra n8, McCann case, para.213 Ibid, Joint Dissenting Opinions para.8 38 Ibid, para.25 39 Supra n22, Dickson, (1997), p154 40 Supra n9, Dickson, (2010), p258
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control of the challenged anti-terrorist operation as a fundamental element in assessing whether Article 2 had been complied with. Therefore, this case represents the foundation of the Courts willingness to scrutinise the care taken by member states relevant authorities in implementing security forces operations.41
1.3 - Article 2 cases concerning Northern Ireland: Article 2 does not require that prosecutions be brought in respect of each and every use of force [...] but where force is resorted to it imposes an obligation to conduct a full, effective, and open investigation into the circumstances surrounding the use of force and any resulting loss of life.42 Following the McCann case, a number of applications were lodged before the Court in Strasbourg relating to a number of incidents in Northern Ireland, some dating back to the early 1980s and four of these judgments were delivered on one day, May 4th 2001. These were the McKerr v United Kingdom,43 Kelly and others v United Kingdom44, Shanaghan v United Kingdom 45and Hugh Jordan v United Kingdom46 cases. (Often collectively known as Jordan et al.) As N Aolin notes inquests in Northern Ireland have been inexorably linked to the controversy surrounding many lethal force deaths. The reason for this is a simple one. Most lethal force killings have not been subject to criminal prosecution, and there have rarely been public inquiries into these deaths. In the McCann case the European Court declined to outline the form that an investigation into a lethal force death should take [...] in a swift change of tactics the European Court was quite prepared in the joined cases to assess the adequacy and form of the investigation. The result was a particularly harsh assessment of inquests.47 McKerr arose as a result of the killing of Gervaise McKerr, along with two other men, by police officers in Lurgan, Northern Ireland in 1982 and the allegation that he had
41
Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, (Hart Publishing, Oxford-Portland Oregon), 2004, p9 42 Gordon Anthony and Paul Mageean, Habits of Mind and Truth Telling: Article 2 ECHR in Post-Conflict Northern Ireland , in John Morison, Kieran McEvoy and Gordon Anthony (eds.), Judges, Transition and Human Rights, (Oxford University Press), 2007, p184 43 McKerr v United Kingdom, Judgment of 4 May 2001, (2002) 34 EHRR 20 44 Kelly and Others v United Kingdom, Judgment of 4 May 2001 45 Shanaghan v United Kingdom, Judgment of 4 May 2001 46 Hugh Jordan v United Kingdom, Judgment of 4 May 2001, (2003) 37 EHHR 2 47 Fionnuala N Aolin, Truth Telling, Accountability and the Right to Life in Northern Ireland, European Human Rights Law Review, Vol.5, 2002, p572-590, at p584
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been unjustifiably killed and that there had been no effective investigation into the circumstances of his death.48 Following the death of Gervaise McKerr and the two other men, the RUC commenced an investigation. Based on that investigation, the DPP decided to prosecute three officers who were subsequently acquitted at a criminal trial. An independent police inquiry was launched to investigate suspicions of obstruction in the police investigations of this and two other incidents. An inquest was opened on 4th June 1984 and abandoned on 8th September 1994, without reaching any conclusion.49
The Court identified that in Northern Ireland [...] investigations into deaths may also be conducted by inquests. Inquests are public hearings conducted by coroners independent judicial officers normally sitting with a jury, to determine the facts surrounding a suspicious death. In McCann and Others the Court found that the inquest held into the deaths of the three IRA suspects shot by the SAS in Gibraltar satisfied the procedural obligation contained in Article 2, as it provided a detailed review of the events surrounding the killings and provided the relatives of the deceased with the opportunity to examine and cross-examine witnesses involved in the operation.50
The Court considered whether the inquest that was conducted in the McKerr case was effective but found that while the inquest was indeed public it was not effective.51 One of the key issues raised was that in inquests in Northern Ireland, a person suspected of causing death may not be compelled to give evidence (Rule 9(2) of the 1963 Coroners Rules52). In practice, in inquests involving the use of lethal force by members of the security forces in Northern Ireland, the police officers or soldiers concerned do not attend. Instead, written statements or transcripts of interviews are admitted in evidence. In the inquest in this case, the police officers involved in the shooting were not required to appear at the inquest and declined to do so [...] (They) were therefore not subjected to examination concerning their account of events. Their statements were made available to the coroner instead. This did
48 49
Supra n43, McKerr case, para.99 Ibid, para.122 50 Ibid, para.142 51 Ibid. 52 Coroners (Practice and Procedure) Rules (NI) 1963: Rule 9(2) Where a person is suspected of causing the death, or has been charged or is likely to be charged with an offence relating to the death, he shall not be compelled to give evidence at the inquest.
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not enable any satisfactory assessment to be made of either their reliability or credibility on crucial factual issues. It detracted from the inquests capacity to establish the facts relevant to the death, and thereby to achieve one of the purposes required by Article 2 of the Convention.53 Furthermore it noted that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the procedures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces implicated in the events. The Court is not persuaded that the applicants interests as next-of-kin were fairly or adequately protected in this respect.54 These issues, along with some others, contributed to the Courts unanimous finding that there had been a failure to comply with the procedural oBlifations iMposed by Articl% 2 and thus the provision had been violated.
The subs4ance of the other judgments delivered against the United Kingdom in the Kelly, Shanaghan and Jordan cases essentially mirrored the decision in McKerr. The facts of each case differed and as such some elements of the judgments were specific to each individual case. The Kelly case concerned the killing of nine of the applicants relatives by the SAS during an ambush of a terrorist attack on a police station at Loughg`ll, NortheRn Ireland in May 1987. The court was unanimous in finding a breach of the obligation to hold an effectave inveqtigation into the killings.
Ond of the key issues was the del!y in the commencement of an inquest into the events. The inquest openEd on 30 May 1995, more than eight years after the deaths occurred [...] once it opened, it concluded within a matter of days, on 2 June 1995.55 Although the Court identified that the applicants contributed sigfificantly to the delay in the inquest being opened56 [...] these adjournments gere requested by, or consented to, by the appdicantc. They relat%d principally to legal challenges to procedural aspects of the inquest which they considered essential to their ability to participate in particular as regards access to documentS.57 Furthermore a lack of independence was found as the court identified that
53 54
Supra n43, McKerr case, para.144 Ibid, para.148 55 Supra n44, Kelly case, para.130 56 Ibid, para.132 57 Ibid, para.131
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whila the investigating officers did not appear to be connected structurally or factual,y with the soldiers under investigation, tHe operation at Loughgall was nojetheless conducted jointly with local police officers, some of whom were injured, aNd with the co-operation and knowledge of the RUC in that area. Even though it also appears that, as required b9 law, this investigation was supervised by the ICPC, an independent police monitoring authority, this cannot provide a sufficient safeguard where the investigation itself has been for all practical purposes conducted bq police officers connected, albeit indirectly, with the operation under investigation.58 Ultimately, similar to McKerr, the Court found that there were a number of shortcomings in the proceedings employed in the investigation of the use of lethal force by the security forces in this instance leading to a violation of the procedural aspect of Article 2. These included: lack of independence of the investigating officers from the security forces involved; non-disclosure of witness statements prior to witnesses appearance at the inquests prejudiced the applicants participation in the inquest and contributed to long adjournments; (and that) the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.59 The Shanaghan case is very interesting in relation to the development of Article 2 jurisprudence as the application did not arise as a result of a killing by members of state security forces. In this case there was an alleged collusion between the security forces and loyalist paramilitaries leading to the death of Patrick Shanaghan in August 1991. The RUC warned Patrick Shanaghan twice that he was under potential threat from loyalist paramilitary groups. On 10 December 1990, a RUC detective informed him that security force documentation containing information about him, including a photographic montage, had accidentally fallen out of the back of an army vehicle. He was advised to take measures for his personal safety as there was a risk that the material had come into the hands of loyalist paramilitaries.60 The court noted that Patrick Shanaghan was shot and killed after photographs identifying him fell off the back of an army lorry. It is a situation which, to borrow the words of the domestic courts, cries out for an explanation. The applicant was however not informed of why the incident was regarded as not disclosing any problems of
58 59
Supra n44, Kelly case, para.114 Ibid, para.136 60 Supra n45, Shanaghan case, para.18
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collusion. There was no reasoned decision available to reassure a concerned public that the rule of law had been respected.61
One of the recurring issues in the cases relates directly to the failings of the inquest procedure in Northern Ireland in the ability to pronounce a verdict in proceedings.62 This was again highlighted in Shanaghan where the Court contrasted the procedure as employed in Gibraltar in the McCann case with that employed in Northern Ireland. Unlike the McCann inquest, the jury's verdict in this case could only give the identity of the deceased and the date, place and cause of death. In England and Wales, as in Gibraltar, the jury is able to reach a number of verdicts, including unlawful death [...] where an inquest jury gives such a verdict in England and Wales, the DPP is required to reconsider any decision not to prosecute and to give reasons which are amenable to challenge in the courts. In this case, the only relevance the inquest may have to a possible prosecution is that the Coroner may send a written report to the DPP if he considers that a criminal offence may have been committed.63 Furthermore, the Court considered that Notwithstanding the useful fact finding function that an inquest may fulfil in some cases [...] in this case it could play no effective role in the identification or prosecution of any criminal offences which might have occurred and, in that respect, fell short of the requirements of Article 2.64 Thus the Court held unanimously that the scope of examination of the inquest excluded the concerns of collusion by security force personnel in the targeting and killing of Patrick Shanaghan; and; the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed.65
Finally, the Hugh Jordan case arose following the death of the applicants son, Pearse, at the hands of RUC security forces in Belfast, Northern Ireland in November 1992. Concerning the procedural obligations under Article 2 of the Convention the Court noted that following the death of Pearse Jordan66, an investigation was commenced by the RUC. On
61 62
Supra n45, Shanaghan case, para.108 McKerr case, paras. 142-145, Kelly case, paras.119-123 63 Shanaghan case, para.112 64 Ibid, para.113 65 Ibid, para.122 66 Supra n9 Dickson, p286 at fn245 No death in Northern Ireland has led to such extensive litigation as this one (including a decision by the European Court, another by the House of Lords, and several by the Court of Appeal
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the basis of that investigation, there was a decision by the DPP not to prosecute any officer. An inquest was opened on 4 January 1995 and is still pending.67 Again, similar to the findings in the above cases, the court held that the shortcomings in transparency and effectiveness identified above run counter to the purpose identified by the domestic courts of allaying suspicions and rumours. Proper procedures for ensuring the accountability of agents of the State are indispensable in maintaining public confidence and meeting the legitimate concerns that might arise from the use of lethal force.68
and High Court of Northern Ireland), but still the full truth of what happened on the day of the killing does not seem to have emerged. At the time of writing the inquest into the death is still incomplete. (It is anticipated that a preliminary hearing scheduled for 24th September may give an insight into a proposed start date.) See appendix. 67 Supra n46, Hugh Jordan case, para.116 68 Ibid, para.144
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1.4 - Summary: The inquest procedures in Northern Ireland have been greatly criticised by judges and commentators alike for their failure to comply with the obligations imposed by Article 2 of the Convention. Following these groundbreaking judgments the question remained as to how they would be implemented by the government. Although there have been some positive developments in this area, it still remains open to criticism, scrutiny and debate. For example, in 2000 the office of the Police Ombudsman for Northern Ireland was created. Its powers include the ability to conduct completely independent investigations where complaints have been made about the police. However, as Connolly identifies Although the Ombudsman is structurally separate from the PSNI, and therefore capable of carrying out independent investigations of the police, its mandate does not cover situations where the army is responsible for the deaths in question. According to the British government, such incidents will be investigated by the PSNI [...] while this issue is less likely to arise in future cases given the limited role currently played by the British Army in Northern Ireland, the PSNIs lack of independence poses a significant problem for investigations of lethal force incidents that occurred during the past conflict.69 The incorporation of the Convention into the domestic law of Northern Ireland by virtue of the Human Rights Act 1998 can also be seen to be a positive development, although the House of Lords found (in Re McKerr70) that it could not apply retrospectively to deaths occurring prior to 2nd October 2000. Thus, as Bell and Keenan have noted that while it has not delivered new investigations, Article 2's procedural aspect has, in cases where state actors have been involved, given families of these victims some leverage on a victims debate which has often relegated them to a low place in a `hierarchy of victims', and refused to recognize a discrete set of needs as regards information and accountability relating to state involvement.71 This seems to represent the view that Hegarty took in criticizing the implementation of Article 2 of the Convention with respect to the decisions of the McCann and Jordan et al. cases and the shortcomings identified in the domestic procedure for inquests and investigations into deaths involving state actors, where she states that it is necessary to
69
Christopher K. Connolly, Seeking the Final Court of Justice. The European Court of Human Rights and Accountability for State Violence in Northern Ireland, San Diego International Law Journal, Vol. 9, 2007-2008, p81-134, at p108-109 70 Re McKerr (Northern Ireland) [2004] 1 W.L.R. 807 71 Christine Bell and Johanna Keenan, Lost on the Way Home? The Right to Life in Northern Ireland, Journal of Law and Society, Vol.32, No.1, March 2005. p68-89, at p87
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establish some form of independent investigatory process that is capable of uncovering and reporting the truth and allocating responsibility for the events complained of....The difficulty may be that no inquiry, public or otherwise, which is set up by the UK, is capable of satisfying this standard, because any such inquiry is likely to be controlled in its material aspects by sections of the State who have most to lose from reporting the truth.72 Inquest procedures in Northern Ireland are inexorably linked to the controversy surrounding many disputed deaths. The reason for this is a simple one most disputed killings have not been subject to a criminal prosecution and there have rarely been any public enquiries into these deaths.73 The legacy of these failings have been identified by the European Court of Human Rights in many high profile cases which have emerged from the conflict and these have contributed to the development of the Courts jurisprudence and the implementation of Article 2. As it has been stated, Perhaps the single most important development in European human rights standards attributable to applications resulting from the conflict in Northern Ireland is that relating to the investigation of killings.74
72
Angela Hegarty, The Government of Memory: Public Inquiries and the Limits of Justice in Northern Ireland, Fordham International Law Journal, Vol.23 (2002-2003), p1148-1192, at p1156 73 Fionnuala N Aolin, The Politics of Force, Conflict Management and State Violence in Northern Ireland, (Blackstaff Press, Belfast), 2000, p135 74 Supra n9, Dickson, (2010), p268
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Chapter2:TurkeySouthEastRegion
Chapter 2:
2.1 - Turkey - South-East Region:
Introduction: Turkeys Kurds receive less attention than Iraqs Kurds, although they are perhaps three times as numerous. They receive less attention than the Northern Irish, although their conflict was ten times bloodier...An armed conflict raged between Kurdish separatists and Turkish state forces in South-Eastern Turkey from 1984-1998. At its height in the early 1990s, the conflict rose to the level of a full-scale war. Thirty thousand people were killed, and more than a million dislocated.75 As Gross notes for some time now, cases before the Court and Commission have alleged ongoing human rights violations by Turkish security forces. The complaints submitted...have been, for the most part, concentrated geographically and ethnically. Most come from the South-Eastern provinces and involve victims of Kurdish origin or suspected supporters of the Kurdish cause.76 The intense violence between the Turkish state and the insurgent elements of the PKK (Kurdistan Workers Party) has thus proved to be quite an obstacle in the attempt to guarantee human rights in the conflicted area. It has been identified that Another obstacle to achieving an acceptable level of respect for human rights in Turkey has been the poor implementation of European Court of Human Rights (ECtHR) case law. The Turkish constitution requires that the judgements of the ECtHR supervene over the decisions of national judicial bodies. This should be an extremely important tool for transforming the jurisprudence of Turkish courts and the policies of the Turkish government; however, to date this has not been the case.77
The applications to the European Court of Human Rights emanating from the Kurdish region have covered a diverse range of issues but perhaps the most important developments have come in respect of Freedom from Torture as guaranteed by the provisions
Supra n7, Goldhaber, (2007), p123 Oren Gross, Once more unto the Breach: The Systemic Failure of Applying the European Convention of Human Rights to Entrenched Emergencies, The Yale Journal of International Law, Vol.23, 1997, p437-501, at p484 77 Fifth International Conference on the EU, Turkey and The Kurds, European Parliament Brussels, 28th-29th January 2009, (Kurdish Human Rights Project, London), 2010, p44 See http://www.khrp.org/khrp-news/humanrights-documents/doc_download/243-fifth-international-conference-on-the-eu-turkey-and-the-kurds.html (Accessed 20/09/2010)
76 75
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of Article 378 and also further developments from the McCann principles in relation to Article 2. One of the most important judgments in the history of the Court is that of Aksoy v. Turkey,79 the consideration of which will form the starting point for my examination of the cases concerning the conflicted Kurdish region of South-East Turkey.
2.2 - Aksoy v. Turkey Zeki Aksoy was a Turkish national born in 1963 and lived in the Kurdish region of South-East Turkey. He was alleged to have been involved with the PKK and subsequently identified by an informant. Based on this information he was taken into custody by approximately twenty policemen where he was held for fourteen days. According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as Palestinian hanging. While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was blindfolded during this torture [...] during the next two days he was allegedly beaten repeatedly at intervals of two hours or half an hour.80 Aksoy requested to see a doctor but this request was denied. Following his release, after which no criminal charges were brought against him, he was admitted to hospital where he was diagnosed as suffering from paralysis of both arms caused by nerve damage in the upper arms, consistent with the practice of Palestinian hanging.
Aksoy complained to the Commission that he had been subjected to treatment contrary to Article 3 of the Convention during his detention in police custody, and [...] during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para.381.82 The application that was lodged to the Commission was
78
Convention for the Protection of Human Rights and Fundamental Freedoms Article 3. Prohibition of Torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 79 Aksoy v. Turkey, Judgment of 18 December 1996; (1997) 23 EHRR 553 80 Ibid, para.14 81 Convention for the Protection of Human Rights and Fundamental Freedoms Article 5 Right to Liberty and Security: 3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 82 Aksoy case, para.34
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alleged to have been the motivation for the killing with his representatives stating that he had been threatened with death in order to make him withdraw his application [...] and his murder was a direct result of his persistence with his application. The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.83
The importance of Article 3 can be highlighted by the fact that there is no derogation permitted as per Article 15 para.2.84 This arguably creates a hierarchy of rights and can be seen to place those non-derogable provisions on a higher footing. Article 3 enshrines one of the most fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.85 The implications of a violation of Article 3 are therefore quite profound as the Court found by eight votes to one that, in addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time [...] this treatment was of such a serious and cruel nature that it can only be described as torture.86 Indeed as Evans notes the ECHR organs have adopted [...] a vertical approach to Article 3, which is seen as comprising three separate elements, each representing a progression of seriousness, in which one moves progressively from forms off ill-treatment which are degrading to those which are inhuman and then to torture. The distinctions between them is based on the severity involved, with torture at the apex.87
The case of Aksoy v. Turkey was an important legal landmark in a number of respects. In tandem with the Akdivar v. Turkey88 case it was the first case involving the Kurdish conflict to be admitted. In a broader perspective the Aksoy judgment was the first finding by the European Court of Human Rights of an incident of treatment against an individual which
83 84
Supra n79, Aksoy case, para.22 Convention for the Protection of Human Rights and Fundamental Freedoms Article 15 Derogation in Times of Emergency: No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 85 Aksoy case, para.62 86 Ibid, para.64 87 Malcolm D. Evans, Getting to Grips With Torture, International and Comparative Law Quarterly, Vol. 51, 2002, p365-383, at p370 88 Akdivar v. Turkey, Judgment of 16 September 1996, (1997) 23 EHRR 147
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amounted to torture against a State. In addition to this it established that the doctrinal burden of proof for torture be placed with the State.89 This also reinforced the position in Akdivar, where applications can be made directly to Strasbourg where domestic remedies are inadequate or ineffective, there is [...] no obligation to have recourse to remedies which are inadequate or ineffective [...] there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal.90 The principles it laid down as regards what constitutes treatment amounting to torture were developed further in some important Turkish cases, particularly Aydin v. Turkey.91 This case concerned the arrest and detention of a seventeen year old girl by the security forces. While in custody the applicant was taken alone to a room, stripped, beaten, spun round in a car tyre, sprayed with cold water and raped by a man in military uniform. In finding a violation of Article 3 the Court was satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention.92 Indeed a very interesting aspect if the judgment was that the Court would have reached this conclusion on either of these grounds taken separately.93 As Cullen notes if the ill-treatment results from incidental neglect, such as forgetting to feed prisoners, then it does not constitute torture. It may be possible for such acts to be characterised as cruel, inhuman or degrading treatment. However, if an act is to be characterised as torture, a necessary ingredient is the perpetrator's deliberate intention to inflict pain or suffering.94 This seems to broaden the scope of what conduct can constitute torture and when taken in conjunction with the Akdivar and Aksoy principles marks a significant development of the Courts jurisprudence as emerging from the conflicted Kurdish region.
Furthermore, Aksoy proved to be of significant importance in respect of the length of time that a suspect may be detained by the authorities even the State have derogated from their responsibilities under Article 5 of the Convention. Therefore despite the serious
89
Supra n79, Aksoy case , para.61 Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention. 90 Supra n88, Akdivar case, para.67 91 Aydin v. Turkey, Judgment of 25 September 1997, (1997) 25 EHRR 251 92 Ibid, para.86 93 Ibid. 94 Anthony Cullen, Defining Torture in International Law, California Western International Law Journal, Vol. 34, 2003-2004, p29-46, at p33
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terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Governments margin of appreciation and could not be said to be strictly required by the exigencies of the situation.95 This judgment marked an affirmation of the Brogan and Others v. United Kingdom96 case, where four days and six hours of detention fell outside of the strict time constraints permitted by Article 5 para. 3, and was subsequently endorsed in respect of another application from Turkey in the Sakik and Others v. Turkey97 judgment where the applicants were held in police custody for twelve and fourteen days without judicial intervention.98 In this case a valid derogation was in place in respect of Article 5, but this did not apply to Ankara where the violations took place. While this case did not emanate from the South-East region, it is directly linked to it, such that the derogation which the Government sought to rely on was confined to the conflicted Kurdish region, thus the Court would be working against the object and purpose of Article 15 if, when assessing the territorial scope of the derogation concerned, it were to extend its effects to a part of the Turkish territory not explicitly named in the notice of the derogation.99 Hartman notes that derogation articles embody an uneasy compromise between the protection of individual rights and the protection of national needs in times of crisis. Overlaying this strain is the tension between the international protection of human rights and states control over domestic affairs.100
2.3 - Article 2 Cases concerning South-East Turkey: As regards Article 2 cases concerning the right to life, the judgments emerging as a result of the conflict in the Kurdish region of South-East Turkey are equally as important as those concerning Article 3. The principles as established in the McCann case were elaborated by the Court in Kaya v. Turkey.101 This case concerned an application by the brother of a man who was found dead, riddled with bullets in a field near his village in South-East Turkey. The
Supra n79, Aksoy case, para.81 Brogan and Others v. United Kingdom, Judgment of 29 November 1988, (1988) 11 EHRR 117, para.62 97 Sakik and Others v. Turkey, Judgment of 26 November 1997, (1998) 26 EHRR 662 98 Ibid, para.45 99 Ibid, para.39 100 Joan F. Hartman, Derogation from Human Rights Treaties in Public Emergencies Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Commission of the United Nations, Harvard International Law Journal, Vol.22 No.1 Winter 1981, p1-52, at p2 101 Kaya v. Turkey, Judgment of 19 February 1998, (1998) 28 EHRR 1
96 95
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Government contended that the man was a terrorist and was killed in a violent clash with security forces. Citing the McCann case, the Court noted that Article 2, read in conjunction with Article 1, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by [...] agents of the State.102 The Court was not satisfied by the actions of the public prosecutor who seemed to accept at face value the information given by the military [...] and [...] as an independent investigating official he should have been alert to the need to collect evidence at the scene, to make his own independent reconstruction of the events and to satisfy himself that the deceased, despite being dressed as a typical farmer, was in fact a terrorist as alleged.103
Similarly in both Gle v. Turkey104 and Ergi v. Turkey105 the Court cited the McCann case and developed the Kaya case further. In Gle by identifying that the investigation into the death of the applicants son was not effective but also that it was conducted without the participation of the complainant106 in breach of the procedural guarantee implicit in Article 2 of the Convention. Ergi concerned the loss of life as a result of a security forces operation carried out in the South-East region where it was alleged that the applicants sister was killed when the PKK clashed with State agents. While the Government argued that the girl was killed as a result of stray bullet shot by a terrorist, (the Commission was unable to identify based on the evidence submitted to it that this was or was not the case) the Court rejected this argument and instead held that the responsibility of the State is not confined to circumstances where there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding, and in any event to minimising, incidental loss of civilian life.107 This was a further development of the McCann case although it was distinguished in the sense that the court accepted that there was significant intelligence
102 103
Supra n101, Kaya case, para.86. Also, McCann case, Supra n8, para.161 Ibid, para.89 104 Gle v. Turkey, Judgment of 27 July 1998, (1999) 28 EHRR 121 105 Ergi v. Turkey, Judgment of 28 July 1998, (2001) 32 EHRR 388 106 Gle case, para.82 107 Ergi case, para.79
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relating to a suspected crime that was expected to be committed, this was not the situation in the Ergi case.108
Perhaps a more interesting aspect of the Ergi judgment concerned the obligation on the State to provide an investigation into killings even when the State cannot be held responsible for the death. Again, this developed the McCann case but also the Kaya case and the Court highlighted that the obligation to have an effective investigation is not confined to cases where it has been established that the killing was caused by an agent of the State [...] the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death.109 These innovative and important judgments subsequently formed the basis for the decisions in the cases concerning Northern Ireland commonly known as Jordan et al.110 and Mowbray notes that they vividly reflect the ingenuity of the Court in creatively interpreting the Convention so as to seek the actual protection of human life from unlawful killings by State agents and private persons.111
2.4 - Kurdish Disappearance cases: History has shown that, in the absence of safeguards against abuse of power, it is all too easy for the State to cover up its own unlawful violence, particularly when that violence is carried out behind closed doors [...] where an individual is known to have been taken into custody and subsequently disappear or is found dead, therefore, it is logical that a heavy burden should fall on the State.112 While there have been numerous important cases from the Kurdish region which have helped to develop the principles of the procedural requirements of Article 2, some of the seminal cases to have emerged as a result of the conflict have concerned disappearances.
Supra n105, Ergi case, para.75 Ibid, para.82 110 Supra n43-46, Jordan et al. 111 Alastair Mowbray, The Creativity of the European Court of Human Rights, Human Rights Law Review, Vol. 5.1, (2005), p57-79, at p78 112 Supra n1, Ovey & White, p59
109
108
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The first major consideration of a disappearance case by the European Court of Human Rights was that of Kurt v. Turkey.113 Here the applicants son had last been seen four and a half years previously, surrounded by soldiers during a security operation in a village in South-East Turkey. While both the Court and the Commission accepted that this was the case, they failed to find a breach of Article 2 in respect of the right to life. The Court stated that it must carefully scrutinise whether there does in fact exist concrete evidence which would lead it to conclude that her son was, beyond reasonable doubt, killed by the authorities either while in detention in the village or at some subsequent stage.114 Furthermore, citing McCann and Kaya, in respect of the procedural aspect of Article 2 and the positive obligations of the State to conduct an effective investigation, there was evidence that a fatal shooting had taken place and would thus give rise to the obligation. This, however, was not the case in Kurt.115 This seemed to be a negative development in respect of Article 2, but it was also considered under Article 3, where it found in favour of the applicant regarding the anguish and distress she faced over a prolonged period amounted to a breach116, and Article 5 where the violation concerned a particularly grave violation of the right to liberty and security of the person.117 The decision in respect of Article 5 reinforces the position in relation to positive obligations and requires the authorities to take effective measures to safeguard the whereabouts of the individual detained.118
Article 2 was considered in relation to the death of a disappeared person in Cakici v. Turkey.119 The Government claimed that the disappeared man was a militant member of the PKK and following a clash with armed forces he was found dead. He had been taken into custody and sustained serious injuries and over four years had elapsed since he was last seen alive. Interestingly, the Court found that there was sufficient circumstantial evidence, based on concrete elements, on which it may be concluded beyond reasonable doubt that Ahmet
113 114
Kurt v. Turkey, Judgment of 25 May 1998 (1999) 27 EHRR 373 Ibid, para.107 115 Ibid. 116 Ibid, paras.130-134 117 Ibid, para.129 118 Ibid, para.124, The Court emphasises in this respect that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. 119 Cakici v. Turkey, Judgment of 8 July 1999, (2001) 31 EHRR 133
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Cakici died following his apprehension and detention by the security forces.120 This is a development of the Kurt judgment where it was distinguished on the basis that there was no evidence of maltreatment of the applicants son after his detention by the authorities. As Cakici was presumed dead following his detention by the authorities and no explanation has been forthcoming from the authorities as to what occurred following his apprehension, nor any ground for justification [...] in respect of any use of lethal force by their agents,121 the State of Turkey were found liable for his death and thus violated Article 2.
In two other cases concerning disappeared persons, namely Ertak v. Turkey122 and Timurta v. Turkey 123 the Court took a sterner approach relating to the evidential burden attached to the State. In the former case, there was eye-witness evidence that the disappeared person had been ill-treated while in detention and subsequently died. Violations of Article 2 were found in respect of the States responsibility for the death of the disappeared man as in akici and also that the procedural obligations to conduct an effective investigation as in Kaya, were not fulfilled. Again this case was distinguished from Kurt as there was sufficient evidence to show that Mr. Ertak was ill-treated while detained. The latter case of Timurta concerned circumstantial evidence as opposed to the concrete evidence required as per Kaya. The applicant relied on a photocopy of a document as recorded proof of his sons arrest and detention. From the Governments failure to disclose evidence which it claimed to have it may be deduced [...] that the need was felt to conceal the apprehension and detention of Abdulvahap Timurta.124 The Court once again distinguished the Kurt case in holding that the length of time was a crucial factor in deciding that Mr. Timurta must be presumed dead. Six and a half years elapsed since he was last seen, compared with four and a half in Kurt. Furthermore, whereas zeyir Kurt was last seen surrounded by soldiers in his village [...] Abdulvahap Timurta was taken to a place of detention [...] by authorities for whom the State is responsible.125 Also the fact that Timurta was wanted by the authorities in connection with his alleged involvement with the PKK, whereas Kurt was not under the suspicion of the authorities, led the Court to conclude that he must be presumed dead and that responsibility must lie with the State.
120 121
Supra n119, Cakici case, para.85 Ibid, para.87 122 Ertak v. Turkey, Judgment of 9 May 2000 123 Timurta v. Turkey, Judgment of 13 June 2000, (2001) 33 EHRR 121 124 Timurta case, para.84 125 Ibid, para.85
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2.5 - Summary: Democracy and human rights in Turkey have been a prominent subject of discussion in many international forums over the past ten years due to that country's unique domestic difficulties and geopolitical importance. Hardly any other country in the world has been so criticized for its human rights record, nor is the future of any other country so dependent on the promotion of human rights.126 Turkeys commitment to improving their human rights record is one of the conditions that must be addressed if they are to fulfil the transition from candidate to member of the European Union. The volume of applications from the South-East region of Turkey alleging violations of Article 2 of the Convention highlights the seriousness of the conflict that raged between the PKK and State forces. The judgments help to demonstrate the legal and evidential difficulties individuals have faced in seeking to bring home responsibility for unknown perpetrator killings, deaths during security operations and disappearances.127
The facts of the cases suggest that there appears to be a failure to secure to the people of the conflicted Kurdish region, the rights guaranteed by the Convention. The judgments have contributed significantly to the development of the jurisprudence of the European Court of Human Rights, particularly in respect of finding a State guilty of conduct amounting to torture as in Aksoy, expanding what conduct amounts to torture as in Aydin and also principles surrounding the geographical scope of derogations under Article 15 as in Sakik and Others.
The cases concerning Article 2 have helped to further consolidate the principles laid down in the McCann and Others in relation to the procedural duties and obligations of the State where individuals have been killed as a result of the use of force by State agents. However, the Ergi judgment showed that the Court was prepared to extend this obligation to include situations where the State cannot be held responsible for the death. By interpreting
Aslan Gndz, The Land of Many Crossroads, Human Rights and Turkeys Future in Europe, Orbis, Vol.45, No.1 Winter 2001, p15-30, at p15 127 Carla Buckley, The European Convention on Human Rights and the Right to Life In Turkey, Human Rights Law Review, Vol.1, No.1, 2001, p35-65, at p64
126
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the Convention as to impose these further obligations on the State, it can be seen to demand a greater commitment from States to respect and secure the right to life of its citizens.
Finally, the progressive development of the disappearance cases shows that the Court were initially reluctant to consider this as an Article 2 issue as per Kurt but distinguished it in subsequent cases to presume that disappeared persons were in fact dead and that the State were liable. Although the Court was mindful of the consequence of accepting circumstantial evidence, it represents a progressive step in securing the Convention rights and has generated a broader notion of State responsibility under Article 2. However, Turkey continues to be criticised for its response to the threat posed in the Kurdish region and the cases were regarded simply as cases lost and compensation paid rather than taken as an opportunity to engage with the Kurdish question by coming to grips with the causes of violence and addressing state accountability.128
128
Baak ali, The Logics of Supranational Human Rights Litigation, Official Acknowledgment, and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996-2006. Law & Social Inquiry, Vol.35, No.2, Spring 2010, p311-337, at p334
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Chapter3:RussiaChechenRegion
Chapter 3:
3.1 - Russia Chechen Region Introduction: May 1998 marked Russias ratification of the European Convention on Human Rights thereby granting jurisdiction to the European Court of Human Rights to hear complaints from Russian citizens against Russian authorities. This proved to be quite a significant development in the history of the European Court in Strasbourg as Russia has been a frequent visitor to the chambers with quite a number of cases concerning the conflict in the Chechen region. This area has historically proven to be a region of particular resistance against Russia, with unrest between the regions dating back to the 1780s.
Prior to the dissolution of the Soviet Union on December 31st 1991, Chechnya declared its independence under the leadership of Soviet military hero Dzhokar Dudayev. In June 1992, Dudayev broke ties with neighbouring Ingushetia, at which point the Russian Federation set up an economic blockade of the region. In December 1994, President Boris Yeltsin authorized a military intervention in Chechnya to re-establish control over what had quickly become a de facto independent state.129 What followed was the first Russian-Chechen war which lasted until August 1996 when a peace treaty was signed, despite the fact that a ceasefire was declared in July 1995.
The Second Chechen War began in August 1999, following the invasion by Chechen forces into the nearby Dagestan and also a number of apartment bombings in many Russian cities, including Moscow, in September of the same year, which were attributed to Chechen separatists. This prompted the central government in Moscow to try and regain control over the de facto independent republic. The aftermath of the conflict has led to an extraordinary number of applications from the Chechen region, with most surrounding alleged violations of the Article 2 guarantee of the right to life. A number of these cases have also concerned enforced disappearances in circumstances similar to the cases from the Kurdish region of South-East Turkey, but this chapter will begin with analysis of the case law of the European
129
Russian Justice Initiative. See http://www.srji.org/en/chechnya (Accessed on 14/09/2010)
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Court of Human Rights with the first case to emerge from the Chechen region, that of Isayeva, Yusopova, Bazayeva v Russia.130 (Isayeva et al.)
3.2 - Isayeva, Yusopova, Bazayeva v Russia: The onset of the second war in Chechnya was triggered by the series of apartment block explosions across many Russian cities in August 1999. October 29th marked one of the most devastating acts of violence seen in any of the previous conflicts mentioned above, or the previous war in Chechnya. This was the day of the infamous Convoy Bombing between Grozny, in Chechnya and the Ingushetian border. Russian authorities had offered civilians in the city of Grozny safe passage to the border, to escape the conflict. Having reached the border, the applicants found that it was blocked but were told that it would be open later that morning. More and more people joined the convoy as the morning progressed. Finally, after a 12km queue had developed, the soldiers at the border advised that the border would not in fact be opened and ordered the crowd to leave the area. As the convoy was turning, two Russian aircraft appeared in the sky above them and opened fire, launching a number of missiles at the vehicles and people on the roadside in attacks that continued for up to four hours. Following this attack, the two children of the first applicant were killed with the final death toll standing at 25 and an additional 70 injured.131
In a report submitted by the NGO Human Rights Watch in relation to bombings of fleeing civilians and civilian convoys, it was stated that where aircraft make multiple attack passes over a civilian convoy [...] the most plausible inference is that such attacks are intentional and with the likely knowledge of the predominantly civil character of the convoy [...] customary international law requires that any attacks discriminate between the civilians and military objects and that foreseeable injury to civilians be proportionate to the direct and concrete military advantage to be gained by the attack [...] the incidents described below raises concerns that civilians may have been targeted intentionally or that the force used was not proportionate to the military advantage pursued.132 The applicants alleged violations of Article 2 in respect of the deaths suffered and cited the Akdivar case in making the application as the domestic procedure for redress would be ineffective and the Court noted
130 131
Isayeva, Yusopova, Bazayeva v. Russia, Judgment of 24 February 2005, (2005) 41 EHRR 847 Isayeva et al. case, paras.13-31 132 Ibid, para.102
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that the fact that the law-enforcement bodies were not functioning properly in Chechnya at the time [...] there existed special circumstances which affected their obligation to exhaust remedies.133 In its judgment, the Court referred to the McCann case in examining whether the authorities were negligent in their planning and control of the operation resulting in the loss of life and also the proportionality of the force used to the desired aim. It also accepted that a situation existed requiring exceptional measures to regain control over the Chechen Republic and if the planes were initially attacked by rebel forces, as alleged by the government, it could have justified the use of lethal force. However, the Court was not satisfied that there was sufficient evidence that the planning stages were conducted effectively as the authorities failed to inform the air force of the safe passage arrangement.134
Furthermore, the Court noted that the failure of the government to invoke the provisions of any domestic legislation governing the use of force in such security situations contributed to the proportionality of the response to the perceived threat, as considered in the McCann case, and thus a violation of Article 2 was found in respect of a States obligation to protect the right to life of the applicants.135 The importance of this case is that it marks a departure from the reliance on humanitarian law which governs internal armed conflicts and provides for individual remedies under human rights law. It has been noted that there existed a regime of impunity in Chechnya as international jurisdiction over such crimes is impossible with Russias veto in the United Nations Security Council and non-membership of the International Criminal Court.136 However the judgment in Isayeva et al. marked a significant positive development in respect of the right to life guarantee under Article 2. Although not permitting criminal convictions like the International Criminal Court, it provides an element of redress for the applicants in the form of compensation where an Article has been violated. This was the first in a wave of judgments relating to the conflict in Chechnya and the conduct of the security forces, further cases being those of Isayeva v. Russia137 and Khashiyev and Akayeva v. Russia.138
133 134
Supra n130, Isayeva et al. case, para.150 Ibid. para.186 135 Ibid, paras.198-200 136 Vesselin Popovski, Terrorizing Civilians as a Counter-terrorist Operation: Crimes and Impunity in Chechnya, Southeast European and Black Sea Studies, Vol.7, No.3, September 2007, p431-447, at p 431 137 Isayeva v. Russia, Judgment of 24 February 2005, (2005) 41 EHRR 791 138 Khashiyev and Akayeva v. Russia, Judgment of 24 February 2005, (2005) 42 EHRR 397
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The Isayeva case marked a reiteration of the reasoning in the Isayeva et al. and Ergi cases where all feasible precautions in the planning and operations stage must be taken to minimise incidental loss of civilian life.139 The facts of this case are similar to those concerned with the convoy bombing. Here a safe passage of escape from an area of heavy fighting was bombed by a highly explosive device dropped from a Russian military aircraft. The applicants son and three nieces were killed and the applicant and other relatives injured. The Government argued that the use of force was necessary due to the large number of armed rebel fighters in the area. The Court accepted that the situation in Chechnya could give rise to the deployment of army units equipped with combat weapons which may include military aviation and artillery.140 Similar to the language used in the Isayeva et al. case, the court accepted that the use of force may have been justified in the present case, it goes without saying that a balance must be achieved between the aim pursued and the means employed to achieve it.141 However, the Court was not satisfied that the evidence presented to it by the Government, who did not disclose most of the documents related to the military action,142 satisfied the requirements that it was planned and executed with the requisite care for the lives of the civilian population,143 and thus a violation of Article 2 was found.
The judgment in Khashiyev and Akayeva affirmed the position in relation to the responsibility of the authorities for those persons detained by them. This reinforces that the burden of proof lies with the state to provide a satisfactory and convincing explanation of what happens as in the Kurdish cases of Ertak, Cakici and Timurta. The applicants in this case alleged that their family members were tortured and killed by Russian federal soldiers at an identity check and had eye-witness evidence that their relatives were seen being detained by the soldiers and that their bodies were later discovered with bullet wounds and showing signs of beatings.144 Again, there was a failure by the authorities to provide an adequate explanation of the events, the court observed that since no explanation has been forthcoming from the Russian Government as to the circumstances of the deaths, nor has any ground of justification been relied on by them in respect if any use of lethal force [...] liability for the
139 140
Supra n137, Isayeva case, para.176 Ibid, para.180 141 Ibid, para.181 142 Ibid, para.182 143 Ibid. para.200 144 Supra n138, Khashiyev and Akayeva case, para.127
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applicants relatives deaths is therefore attributable to the respondent State.145 Furthermore the Court found that the investigation into the deaths was not effective and this was also a violation of Article 2. As Abresch notes, the significance of these first Chechen cases is that while the accepted doctrine has been that, in situations of armed conflict, humanitarian law serves as a lex specialis to human rights law [...] it is now clear that the European Court of Human Rights will apply the doctrines it has developed on the use of force in law enforcement operations even to large battles involving thousands of insurgents, artillery attacks and aerial bombardments.146
3.3 - Chechen Enforced Disappearance cases: In addition to the cases emerging from the military bombing operations in Chechnya, there have been a number of important cases from the region in relation to enforced disappearances. The first of these judgments was delivered in Bazorkina v. Russia147 and concerns some particularly shocking facts surrounding the disappearance of Mr. Yandiyev, which may have made the Courts task a little easier than in previous cases. The application brought by the mother of the disappeared man contained evidence from a CNN broadcast team who filmed a Russian general ordering his execution in February 2000. While this case marks an endorsement of the position taken in the Kurdish disappearance cases it again addressed the two key difficulties central to many cases of disappearances; a person may be presumed dead in the absence of a body and whether the standard of evidence is sufficient to find the State concerned guilty. Here the Court, citing Timurta, noted that the numerous witness statements and the CNN videotape confirming the order of execution coupled with the lack of information on his whereabouts for over six years led to a presumption that he was now dead.148 While this judgment is in essence uncontroversial given that it followed the principles established in the Kurdish disappearance of persons in custody cases, it is useful in distinguishing subsequent Chechen disappearance cases.
Supra n138, Khashiyev and Akayeva case, para.147 William Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, The European Journal of International Law, Vol.16, No.4, 2005, p741-767, at p742 147 Bazorkina v. Russia, Judgment of 27 July 2006, (2006) 46 EHRR 261 148 Ibid, paras.110-112
146
145
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The second enforced disappearance case to emerge from the Chechen region was that of Luluyev and Others v. Russia149 where the Court examined the allegations that a mother of four was abducted by the military from a market in Grozny and subsequently killed and buried in a mass grave. The Court considered that there existed a body of evidence that attains the standard of proof beyond reasonable doubt, and thus makes it possible to hold the State authorities responsible for Nura Luluyeva's death.150 However, this case can be distinguished from the previous case as the evidence was not concrete that the disappeared woman was detained by the agents of the state. The evidence was somewhat circumstantial as the Government denied they were involved in apprehending her but accepted that they were carrying out a mopping-up operation in the area at the time of the disappearance and that State forces were involved in this operation. This appears to be a lesser standard as in Kurt where the evidence was similarly not concrete but it can perhaps be distinguished, as here her body was recovered compared to the continued disappearance in Kurt.
In addition to the Bazorkina and Luluyev cases, Imakayeva v. Russia151 sheds some important light on the development of the Courts jurisprudence concerning enforced disappearances in Chechnya. Eye-witnesses identified that the abductors of the applicants son were military personnel, using military vehicles and also that the abduction took place at a military roadblock.152 What is interesting in this case is that the Court seemed to take a stricter approach as to the level of inferences that may be drawn by a Governments refusal to comply to requests for information from the file relating to an alleged disappearance. Although the evidence was circumstantial, the failure by the Government to provide the information requested helped the Court to find that the requisite standard of proof was satisfied such that it could be established that the applicants son was last seen in the care of unknown military personnel.153 Furthermore, the Court noted that in the context of the conflict in Chechnya, when a person is detained by unidentified servicemen without any subsequent acknowledgement of detention, this can be regarded as life-threatening.154 As Barrett notes, the developments in the initial Chechen disappearance cases demonstrated a
149 150
Luluyev and Others v. Russia, Judgment of 9 November 2006 Ibid, para.85 151 Imakayeva v. Russia, Judgment of 9 November 2006 152 Ibid, para.120 153 Ibid, paras.121-127 154 Ibid, para.141
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willingness to find state responsibility on the basis of circumstantial evidence derived from the surrounding facts.155 This marked a significant shift from the initial jurisprudence established in the Kurdish cases surrounding the burden of proof and it can be said that the standard required to conclude that a state is responsible has incrementally liberalized.156 3.4 - Recent Chechen Enforced Disappearance Cases: Subsequent disappearance cases from Chechnya represented a further liberalization on the part of the European Court of Human Rights. On July 3rd 2008 the Court issued three judgments in the Umarov v. Russia,157 Musayeva v. Russia158 and Akhiyadova v. Russia159 cases. All three cases concerned the forcible capture and kidnapping of the applicants relatives by groups of unidentified armed men. Citing Imakayeva, the Court noted that the situation can be identified as life threatening when it can be established that a person has been detained by unidentified servicemen. This coupled with the failure by the Government, in each of the three cases, to submit the requested information, amounted to a violation of Article 2. Furthermore, in all three cases, there was a failure to conduct an effective investigation into the disappearances, amounting to a violation of the procedural aspect of Article 2. The most interesting new development in these cases is such that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3.160 This would seem to reduce the standard in favour of the applicant and requires a higher standard from the State to ensure that the requisite information is presented to the Court and provide a satisfactory explanation for the disappearance.
Joseph Barrett, Chechnyas Last Hope? Enforced Disappearances and the European Court of Human Rights, Harvard Human Rights Journal, Vol.22. 2009, p133-143, at p139 156 Ibid, p140 157 Umarov v. Russia, Judgment of 3 July 2008 158 Musayeva v. Russia, Judgment of 3 July 2008 159 Akhiyadova v. Russia, Judgment of 3 July 2008 160 Ibid, para.61, Umarov case para.92, Musayeva case, para.100
155
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The issue of enforced disappearances coming from the Chechen region still remains to be a current subject, as the Court has recently handed down judgments in a number of cases, such as Gelayev v. Russia.161 Citing all of the above cases the Court found that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Murad Gelayev or of any news of him for more than ten years supports this assumption. Accordingly, the Court finds that the evidence available permits it to establish that Murad Gelayev must be presumed dead following his unacknowledged detention.162 The Government has continued its practice of failing to provide the relevant documents and in conjunction with the applicant proving a prima facie case, issues continue to arise in respect of Article 2 and invariably a violation is found.
161 162
Gelayev v. Russia, Judgment 15 July 2010 Ibid, paras.103-104
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3.5 - Summary: Several of the cases emerging from the Chechen region have either set important precedents of their own or have reaffirmed crucial principles, particularly in respect of what circumstances a disappearance becomes a right to life violation and also regarding the families of victims access to redress where there have been deaths as a result of military operations. In the context of military operations and armed conflicts the first decisions from Chechnya marked a very interesting development and prompted much debate amongst advocates of humanitarian law and human rights law. As Guild has identified, the categorization of armed conflict as a field covered by its own bodies of law incorporated into international agreements is strongly defended by many commentators. However, human rights law, and in particular the European Convention of Human Rights, makes no reference to these concepts. No exception to states human rights obligations come into existence by virtue of armed conflict alone, at least not on the face of human rights instruments.163 In this respect, the judgments have proved to be a welcome development in providing access to moral justice and compensation for the families of the victims, where otherwise a culture of impunity existed and may represent an overlap between humanitarian and human rights law. Given the volume of judgments that have been handed down by the European Court of Human Rights in relation to violations from Chechnya, it could be argued that human rights law is becoming the lex specialis in dealing with issues arising from internal armed conflicts. Indeed as Chevalier-Watt notes, in contrast to international humanitarian law, human rights law under the governance of the European Court does not differentiate between different situations. As a result, one body of law applies to all types of conflict situations, including riots, terrorist operations and heavy armed battles.164 The importance of the Chechen cases is such that the standards of proof required for instances of enforced disappearance would appear to have eased in respect of the applicants compared with the early Kurdish judgments, requiring the establishment of a prima facie case and the subsequent failure of the Government to provide a legitimate explanation for the detention of the victim will lead to a presumption that the disappeared person is dead, leading to a violation of Article 2 of the Convention.
Elspeth Guild, Inside Out or Outside In? Examining Human Rights in Situations of Armed Conflict, International Community Law Review, Vol. 9, 2007, p33-58, at p34 164 Juliet Chevalier-Watts, Has human rights law become lex specialis for the European Court of Human Rights in right to life cases arising from internal armed conflicts? The International Journal of Human Rights, Vol. 14, No. 4, July 2010, p584-602, at p595
163
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Conclusion
Conclusion: Increased globalization and the tremendous inequality in terms of state power
around the world will increase the call for state accountability, not only domestically but also transnationally. So far, the emphasis has very much been on the respect level of obligations, thus looking at states direct actions which may in fact cause human rights violations, such as torture or executions.165 The conduct of states in relation to the response to conflicts has been a subject of intense scrutiny since the end of World War II. However, until relatively recently there was no significant jurisprudence from the European Court of Human Rights on the issue. The last 15 years have delivered some of the most important judgments in the history of the court, with a large body of it remarkably arising from regionalized conflicts in Northern Ireland, South-East Turkey and Chechnya. What is even more interesting is the time frame of the judgments, with those from Northern Ireland typically coming between the mid 1990s and early 2000s, those from the Kurdish region of Turkey from the late 1990s to mid 2000s and the Chechen judgments from 2005 to the present day. The Court has therefore been particularly dominated by cases from the specific regions during certain periods. Furthermore the judgments from each of the regions have represented development of particular aspects of the Convention. Northern Ireland was responsible for the first major consideration of the Article 2 guarantee of the right to life in the McCann case, although interestingly the violation took place in Gibraltar. While the killing of three terrorist suspects was not held to be a violation of the right to life, the Court widened the field of scrutiny to include the control and planning of the operation. The subsequent Northern Irish cases of Jordan et al. concerned the development of the duty to investigate suspicious deaths and this has been considered to be Northern Irelands biggest contribution to the jurisprudence of the European Court of Human Rights. The cases from the Kurdish region established important principles and legal precedents initially in relation to the conduct amounting to torture under Article 3. Right to
Sigrun I. Skogly & Mark Gibney, Transnational Human Rights Obligations, Human Rights Quarterly, Vol. 24, 2002, p781-798, at p798
165
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Conclusion
life violations which elaborated on the McCann judgment and subsequently these formed the basis for the Jordan et al. decisions were found in a host of important cases from the conflicted South-East region, notably Kaya and Ergi. Further significant jurisprudence emerged from this region in respect of the numerous disappearance cases which began disappointingly with Kurt, but developed to include cases where the evidence is somewhat circumstantial but leads the Court to presume that the disappeared person died at the hands of agents of the state. The Kurdish cases concerning disappearances proved to be the departure point for the Court in developing the situation of enforced disappearances in the embattled Chechen region of Russia. The Court has delivered judgments against Russia as recently as July 2010 where persons allegedly disappeared at the hands of unidentified military personnel. The development of the jurisprudence in this area is very significant in relation to the standard of proof and the repeated failure by the Government to provide the Court with relevant information and thus leads to the Court drawing particular inferences. The initial cases to emerge from Chechnya concerned the violation of the right to life by the State in conducting military operations. This represented a willingness on the part of the Court to consider matters which would normally be governed by humanitarian law, but given these developments it could be argued that human rights law has become the lex specialis in dealing with internal armed conflicts. The intentional taking of human life is and should be an emotional issue, as humanity maintains the protection of the right to life as a fundamental tenet in both peace and war. Thus, any decision to take life should be subjected to a clear normative framework and, where appropriate, the strictest scrutiny.166 The cases from the conflicted regions in the United Kingdom, Turkey and Russia have helped considerably to develop this framework in the context of the European Convention of Human Rights. While there have been positive progressions in guaranteeing the rights in the Convention there is still evidence that violations will continue to emerge, particularly from the Chechen region. As Solvang notes, even though there are significantly fewer human rights violations in Chechnya today, they still occur [...] the fate of up to 5,000 disappeared persons remains unknown and continues to
166
Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, The American Journal of International Law, Vol. 98, No. 1, 2004, p1-34, at p34
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Conclusion
haunt their relatives.167 Governmental failures in Russia and Chechnya bear the brunt of the blame for the human rights violations and it has become clear that, despite current tendencies of advancing democracy, human rights and the rule of law, the fact remains that strategic political considerations still override human rights concerns.168 This most likely refers to the fact that Russia has no desire to become a member of the European Union, unlike Turkey where steps have been taken to improve the countrys human rights record as a pre-condition to accession. Most recently in September 2010, voters in Turkey approved changes to their constitution in a referendum which will aid its bid to join the Union. As the peace process in Northern Ireland has demonstrated, in order to meet the popular demand for a cessation of violence, what is required is a vision of an alternative future to one plagued by violence, complemented by genuine hope that, over time, peaceful relations will replace a mere cessation of violence.169 While there is evidence that there is change on the horizon in Turkey, it may be a little further away in Chechnya and consequently the European Court of Human Rights will continue to be quite active in pronouncing judgments against Russia. The precedents that have emerged from the conflicted regions have been extremely significant in respect of any alleged violation of Article 2 of the Convention but the important fact will still remain that it is not life, but the right to life, which is to be protected by law.170 However, the European Court of Human Rights only deals with allegations of human rights abuses on a case by case basis. Following the finding of a breach, compensation is quite often awarded to the applicants, although as Popovski notes the remedies are too little too late for many who lost their loved ones in the conflict.171 Where repeated violations occur, as is particularly evident in the case of Turkey and Russia, the States seem willing to pay the compensation and consign the cases to cases lost. This raises the question of imposing stricter financial penalties on the States or awarding more compensation to the applicants, or in the case of Russia, expulsion from the Council of Europe. As Francis notes,
Ole Solvang, Chechnya and the European Court of Human Rights: The merits of Strategic Litigation, Security and Human Rights, No.3, 2008, p208-219, at p218 168 Svante E. Cornell, International Reactions to Massive Human Rights Violations: The Case of Chechnya, Europe-Asia Studies, Vol. 51, No. 1, 1999, p85-100, at p97 169 John Russell, Obstacles to peace in Chechnya: What scope for international involvement? Europe-Asia Studies, Vol. 58, No. 6, 2006, p941-964, at p953 170 J.E.S Fawcett, The Application of the European Convention of Human Rights, 2nd Edition (Oxford University Press), 1987, p37 171 Supra n136, Popovski, (2007), p443
167
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Conclusion
in relation to the Second War in Chechnya, at the very start of the conflict, the European Union and the Council of Europe made it crystal clear that this conflict had to be negotiated peacefully, and not resolved by military means.172 Although this was clearly not the case, expulsion from the Council of Europe would seem an unlikely penalty as Russia is the largest state in the institution as well as one of the five main financial contributors.173 A similar conclusion could be drawn on the suggestions that an ad hoc tribunal be created in response to these States where there are repeated violations as political pressures may override the quest for justice. In conclusion it would seem that the European Court of Human Rights will continue to be the main avenue for redress where human rights are persistently violated. It is acting to the full extent of its remit, which can be seen to be confined to delivering moral justice and compensation for the victims and the families of the victims. Although this may be seen to be insufficient as it only finds violations on a case by case basis, the judgments delivered in respect of the conflicts in Northern Ireland, South-East Turkey and Chechnya have proved to be invaluable in developing the standards that are required by the Convention.
Cline Francis, Selective Affinities: The Reactions of the Council of Europe and the European Union to the Second Armed Conflict in Chechnya (1999-2006), Europe-Asia Studies, Vol. 60, No. 2, March 2008, p317-338, at p322 173 Ibid, p334
172
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Articles: Abresch, William. A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, The European Journal of International Law, Vol.16, No.4, 2005, p741-767 Anthony, Gordon and Mageean, Paul. Habits of Mind and Truth Telling: Article 2 ECHR in Post-Conflict Northern Ireland , in John Morison, Kieran McEvoy and Gordon Anthony (eds.), Judges, Transition and Human Rights, (Oxford University Press), 2007, p181-200 Barrett, Joseph. Chechnyas Last Hope? Enforced Disappearances and the European Court of Human Rights, Harvard Human Rights Journal, Vol.22. 2009, p133-143 Bell, Christine and Keenan, Johanna. Lost on the Way Home? The Right to Life in Northern Ireland, Journal of Law and Society, Vol.32, No.1, March 2005. p68-89, at p87 Buckley, Carla. The European Convention on Human Rights and the Right to Life In Turkey, Human Rights Law Review, Vol.1, No.1, 2001, p35-65 ali, Baak. The Logics of Supranational Human Rights Litigation, Official Acknowledgment, and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996-2006. Law & Social Inquiry, Vol.35, No.2, Spring 2010, p311-337 Chevalier-Watts, Juliet. Has human rights law become lex specialis for the European Court of Human Rights in right to life cases arising from internal armed conflicts? The International Journal of Human Rights, Vol. 14, No.4, July 2010, p584-602 Connolly, Christopher K. Seeking the Final Court of Justice. The European Court of Human Rights and Accountability for State Violence in Northern Ireland, San Diego International Law Journal, Vol. 9, 2007-2008, p81-134 Cornell, Svante E. International Reactions to Massive Human Rights Violations: The Case of Chechnya, Europe-Asia Studies, Vol. 51, No. 1, 1999, p85-100
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Mowbray, Alastair. The Creativity of the European Court of Human Rights, Human Rights Law Review, Vol. 5.1, (2005), p57-79 N Aolin, Fionnuala. Truth Telling, Accountability and the Right to Life in Northern Ireland, European Human Rights Law Review, Vol.5, 2002, p572-590 Popovski, Vesselin. Terrorizing Civilians as a Counter-terrorist Operation: Crimes and Impunity in Chechnya, Southeast European and Black Sea Studies, Vol.7, No.3, September 2007, p431-447 Russell, John. Obstacles to peace in Chechnya: What scope for international involvement? Europe-Asia Studies, Vol. 58, No. 6, 2006, p941-964 Skogly, Sigrun I. & Gibney, Mark. Transnational Human Rights Obligations, Human Rights Quarterly, Vol. 24, 2002, p781-798 Solvang, Ole. Chechnya and the European Court of Human Rights: The merits of Strategic Litigation, Security and Human Rights, No.3, 2008, p208-219 Tweedie, June and Ward, Tony. The Gibraltar Shootings and the Politics of Inquests, Journal of Law and Society, Vol. 16, No.4 (Winter, 1989), p464-476 Watkin, Kenneth. Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, The American Journal of International Law, Vol. 98, No. 1, 2004, p1-34
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Appendix
Appendix:
Status of the Inquest into the Death of Pearse Jordan
~47~
Mr David Brady By email only daveybrady@hotmail.com
Communications Group Laganside House 23-27 Oxford Street Belfast BT1 3LA Telephone: 028 9032 8954 Fax: 028 9072 8942 Email: communicationsgroup@courtsni.gov.uk
Our Ref: FOI 089/10 Date : 13 September 2010
Dear Mr Brady,
SUBJECT: Freedom of Information Request
Your request to the PSNI in relation to the inquest into the death of Pearse Jordan who died in November 1992 has been transferred to me at the Communications Group of the Northern Ireland Courts and Tribunals Service for consideration and reply.
Your request was received on 1 September 2010 and has been handled under the terms of the Freedom of Information Act 2000 (FOI).
At the outset I can confirm that the inquest has not yet commenced. It is anticipated that a preliminary hearing which is listed for 24th September may give some insight into a proposed start date.
I can also confirm that no preliminary findings have been disclosed to date.
Finally for your information court records are exempt from disclosure pursuant to Section 32(1) of FOI. Section 32 is an absolute exemption and is not subject to the balance of the public interest test. The duty to confirm or deny whether the information is held does not arise in relation to information that is exempt by virtue of this section.
Courts and tribunals are not subject to FOI legislation. Rules of court already provide a comprehensive code governing the disclosure of court records and documents served in the course of proceedings.
I hope this information has been of some assistance to you.
If you are dissatisfied with this response you may ask the Courts and Tribunals Service to conduct an internal review in relation to your request. A request for an internal review should be addressed to: Patricia Quinn, Information Access Team, Information Centre, Laganside House, 23 -25 Oxford Street, Belfast, BT1 3LA. If following the internal review you remain dissatisfied with the Courts and Tribunals Services treatment of your request then you are entitled to make a complaint to the Information Commissioner. The Information Commissioners address is Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF. If you have any queries about your request please do not hesitate to contact us.
Please remember to quote the reference number above in any future communications.
Yours sincerely
Anne Largan
Information Access Team Communications Group

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Introduction

Russian Justice Initiative. See http://www.srji.org/en/chechnya (Accessed on 14/09/2010)

Gelayev v. Russia, Judgment 15 July 2010 Ibid, paras.103-104

Status of the Inquest into the Death of Pearse Jordan

Mr David Brady By email only daveybrady@hotmail.com

Our Ref: FOI 089/10 Date : 13 September 2010

SUBJECT: Freedom of Information Request

I hope this information has been of some assistance to you.

Information Access Team Communications Group

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