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HUMAN RIGHTS
In litigation brought by mother of British soldier who died from hyperthermia while stationed in Iraq, U.K. Supreme Court upholds jurisdiction of lower court to consider liability of government under special circumstances of this case
Respondent’s son had died of hyperthermia while serving as a member of the British army in Iraq. She brought proceedings seeking an order quashing a coroner’s inquisition into his death. Her chief point was that that the inquest improperly failed to satisfy the procedural requirements of art. 2 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (312 U.N.T.S. 221; E.T.S. 5) (ECHR).
The U.K. secretary of state (Petitioner) conceded that the Respondent was entitled to such an inquest. Nevertheless, the Court felt required to explore and determine the jurisdiction and inquest issues as matters of general importance. The Petitioner argued that jurisdiction under ECHR art.1 was primarily territorial. Thus, soldiers only fall within the jurisdiction of the U.K. courts when a viable claim arose while they were within territory under the effective control of the U.K. Art. 2 criteria applied to the death of Respondent’s son only because it had taken place at his base.
On the other hand, Respondent submitted that her son was subject to the jurisdiction of the U.K. as a matter of domestic and international law based on his status as a member of the U.K. armed forces. She argued that soldiers were in the same legal position as other state agents such as diplomats and consular agents. Thus, when exercising state powers outside state territory of the state, soldiers remain subject to the jurisdiction of the state. In relation to the inquest issue, Respondent contended that the government must hold an Art. 2 investigation whenever a member of the armed forces dies on active service overseas.
The Petitioner sought review of the ruling by the Court of Appeal ([2009] EWCA Civ 441, [2009] 3 W.L.R. 1099) that a British soldier on military service abroad was subject to the jurisdiction of the U.K. within the meaning of Art. 1 of the 1950 ECHR so as to benefit from the rights guaranteed by the U.K. Human Rights Act 1998.
Thus the inquest into the death of the Respondent’s son ought to have satisfied the requirements of Art. 2 of the ECHR. It provides that “[e]veryone’s 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.”
In a six to three vote, however, the U.K. Supreme Court allowed the Appeal in part (Lady Hale, Lord Mance and Lord Kerr dissenting on the jurisdiction issue). Unless they were on a U.K. military base at the time of a compensable happening, the courts have usually held that British troops on active service overseas did not to lie within the jurisdiction of the U.K. for the purposes of ECHR Art.1 and the Human Rights Act 1998. Bankovic v Belgium (Admissibility) (52207/99) 11 B.H.R.C. 435 held that jurisdiction under Art.1 was essentially territorial in nature. It extended only in exceptional circumstances requiring special justification to other bases of jurisdiction, such as when a state had taken effective control of part of foreign territory.
The instant case did not fall within any of the exceptions that the ECHR at Strasbourg has thus far recognized. As a result, the English courts should not read Art.1 as reaching any further than the existing ECHR jurisprudence showed it to reach, Bankovic and R. (on the application of Al‑Skeini) v. Secretary of State for Defence, [2007] UKHL 26, [2008] 1 A.C. 153 applies.
There was no basis in principle—or in the ECHR’s case law—that the limited jurisdiction which states have over their armed forces abroad both in national law and international law meant that they were within their jurisdiction for Art.1 purposes. Respondent’s proposed analogy between diplomatic and consular officials and members of the armed forces is not compelling.
The English courts should not rest Jurisdiction simply on the basis that the U.K. armed forces abroad were under the “authority and control” of the U.K, or that there was a “jurisdictional link” between the U.K. and those armed forces.
Nor were there policy grounds for extending the scope of the ECHR broadly to our armed forces abroad. The categories of exceptional circumstances contemplated in Bankovic depended upon the exercise by State A abroad of state power and authority over individuals—particularly nationals of State A—by the consent, invitation or acquiescence of the foreign State B.
In Iraq, the U.K. was the only power exercising and having under international law authority over its soldiers. In so far as there was any civil administration in Iraq, it consented to this. In such circumstances, where the U.K. was an occupying power recognized as such under international law, there was an irresistible case for treating its jurisdiction over its armed forces as extending to soldiers serving in Iraq for the purposes of Art.1. To distinguish fundamentally between the existence of protective duties on the part of the U.K. to its soldiers at home and abroad appears as unrealistic under the ECHR as it was at common law.
Moreover, the death of a serviceman on active service, assuming it did take place within the Art.1 jurisdiction of a state, did not automatically give rise to an obligation to hold an Art. 2 investigation. Soldiers are regularly exposed to the risk of death or injury as part of their job. The death of a soldier in combat did not raise a prima facie case for saying that the U.K. Army authorities had failed in their obligation to protect him and that there had, in consequence, been a breach of his Art. 2 rights.
Nevertheless, the secretary of state had been correct to concede that an Art. 2 investigation was necessary in the case of the heat‑related death of Respondent’s son. It was at least possible that there had been a failure in the health system that should have been in place to protect its soldiers from the risk posed by the extreme Iraqi temperatures. As a result, it was arguable that there may have been a breach of the state’s substantive obligations under Art. 2. We reverse the judgment below in part.
Citation: R. v. Oxfordshire Assistant Deputy Coroner, [2010] UKSC 29; [2011] 1 A.C. 1; [2010] 3 W.L.R. 223; [2010] 3 All E.R. 1067 (U.K. Sup.Ct. 30 June). (Official Abstract as re‑styled by International Law Update). See generally: http://conventions.coe.int/treaty/en/treaties/html/005.htm.
Filed in: 2010 International Law Update, Issue 8
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HUMAN RIGHTS
Canadian Supreme Court rules, in case where Canadian citizen, questioned by Canadian official after citizen’s subjection to sleep deprivation at Guantanamo, sought order that Canada request his repatriation by U.S., that separation of powers and other prudential factors dictate that Court limit itself to issuing declaratory judgment that his treatment violated Section 7 of Canadian Charter of Rights
Omar Ahmed Khadr (Khadr) was a Canadian citizen who was arrested in Afghanistan in 2002 at the age of 15. The authorities detained Khadr and later on charged him with war crimes. The following year, Canadian authorities questioned Khadr and shared the product of these interviews with United States authorities. In 2004, a Canadian official interviewed Khadr, knowing that the U.S. had subjected Khadr to a sleep deprivation technique known as the “frequent flyer program.”
The Canadian government then refused to repatriate Khadr so he applied for judicial review of the government’s decision on grounds that his rights under § 7 of the Canadian Charter of Rights and Freedoms were infringed. It provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
The trial judge ruled that the refusal to repatriate him did violate Khadr’s 7 rights and ordered the Canadian government to request the U.S. to return him to Canada.
The government appealed. A majority on the Court of Appeal affirmed the order with respect to Khadr’s return but defined the § 7 breach more narrowly as arising from the coerced 2004 interrogation. The government next appealed to the Supreme Court of Canada. On January 19, 2010, this Court allowed the appeal in part. It held that the trial judge had erred in the exercise of his discretion in mandating that the Canadian government request the U.S. to return Khadr to Canada.
Consistent with the principle of separation of powers and upon the well‑grounded reluctance of courts to intervene in matters of foreign relations, the more appropriate remedy was to grant Khadr a declaratory judgment that the government had infringed his Charter rights. This would leave the executive branch a measure of discretion in deciding how best to respond to Khadr’s situation in light of current information, its responsibility for foreign affairs and in conformity with Charter.
“In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is declaratory relief. A declaration of unconstitutionality is a discretionary remedy, Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 (S.C.C.) at p. 481, citing Solosky v. Canada (1979), [1980] 1 S.C.R. 821 (S.C.C.). It has been recognized by this Court as ‘an effective and flexible remedy for the settlement of real disputes”: R. v. Gamble, [1988] 2 S.C.R. 595 (S.C.C.), at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it. Such is the case here.”
“The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.”
“The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003‑2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by § 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.” [¶¶ 46‑48].
Citation: Khadr v. Canada (Prime Minister) (2009), 2009 CarswellNat 1206, 341 F.T.R. 300 (Eng.), 2009 FC 405, 2009 CF 405, 2009 CarswellNat 1472 (F.C.).
Filed in: 2009 International Law Update, Issue 11
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In action against U.K. government officials by mothers of two sons killed in Iraq conflict, House of Lords rules that Article 2 of European Human Rights Convention on right to life does not apply governmental decisions to go to war nor does implied corollary of Convention requiring full investigation of reasons for doing so demand new public inquiry into said reasons
The Claimants here, Rose Gentle and Beverley Clarke, are the mothers of two young men, both aged 19, who lost their lives while serving in the British army in Iraq. The Defendants are the Prime Minister, the Secretary of State for Defense and the Attorney General.
Fusilier Gordon Campbell Gentle was stationed with the 1st Battalion The Royal Highland Fusiliers when a roadside bomb killed him in June 2004. Trooper David Jeffrey Clarke was serving with the Queen’s Royal Lancers when he died from “friendly fire”� in March 2003. Official inquests in the U.K. have fully looked into these deaths, leaving no outstanding questions about when, where and in what circumstances these two deaths came to pass.
As to the law, the Claimants contend that, by virtue of sections 1 and 2 of the U.K.’s Human Rights Act of 1998 and Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) [November 4, 1950, 312 U.N.T.S. 221, as amended], they have an enforceable right under domestic law to require Her Majesty’s Government to make an independent public inquiry into all the circumstances surrounding the invasion of Iraq by British forces in 2003; it would specifically include the steps taken by the Government to obtain timely expert advice on the legality of the invasion.
As an inferential corollary of this right, they say, is a duty binding on the Government to set up such an inquiry. It is a duty owed, the Claimants contend, to all members of our armed forces deployed to Iraq and their families. Presumably, the government owed a duty also to all military personnel liable to be deployed to Iraq and their families.
“In these proceedings, the Claimants do not ask the House [of Lords] to decide whether such an inquiry would be desirable in the public interest (a question not appropriate for the House to consider in its judicial capacity), but only whether they have a right to require the government to conduct such an inquiry. Nor do they invite the House to consider whether the U.K.’s use of armed force in Iraq in 2003 was lawful or unlawful under international law. That question would also lie outside the scope of the public and independent inquiry the Claimants seek. They merely wish the government to explain the process by which the Government obtained legal advice and not to the correctness of the advice it got or should have gotten.”�
“There is an appearance of unreality here. Relying on a number of familiar documents now in the public domain, the Claimants’ real complaint (which they would have wished to advance) is that the U.K. went to war for an unlawful reason, without proper United Nations sanction and on the strength of legal advice which was either adverse or equivocal until just before the invasion. The correctness of this complaint is not, I repeat, a matter which is up for decision in this appeal.”�
The Claimants see a duty on Convention Member States to protect human life. which applies to the lives of soldiers. Armed conflict exposes soldiers to the risk of death. Therefore, they say, a state should take timely steps to obtain reliable legal advice before committing its troops to armed conflict. Had the U.K. done this before invading Iraq in March 2003, it would arguably have decided not to invade. Had it not invaded, Fusilier Gentle and Trooper Clarke would not have lost their lives.
The bedrock of the Claimants’ argument rests on Convention Article 2. So far as relevant here, it provides: “Everyone’s right to life shall be protected by law.”� The European Court of Human Rights (ECHR) has often interpreted Article 2 of the Convention as imposing substantive duties on member states not to take life without justification. This involves the establishment of a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect human life.
“A procedural obligation implements this substantive obligation derived from Article 2 The ECHR has also read Article 2 as imposing on member states a duty to launch a thorough public investigation by an independent official body into any death that took place in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, breached in a away that suggests that agents of the state are, or may be, in some way involved. This procedural duty does not derive from the express terms of Article 2, but was no doubt implied in order to make sure that the substantive right was effective in practice. Here, the Claimants seek to invoke the procedural obligation under Article 2. But it is clear [cites] that the procedural obligation under Article 2 depends upon the existence of the substantive right, and cannot exist independently.”�
“Thus to make good their procedural right to the inquiry they seek, the Claimants must show, as they concede, at least an arguable case that the substantive right arises on the facts of these cases. Unless they can do that, their claim must fail. Despite the Claimants’ careful and detailed submissions, I am driven to conclude that they cannot establish such a right.”�
“The question whether the state unjustifiably took life or failed to protect it will arise with respect to a particular deceased person, as it did at the inquests that looked into the deaths of Fusilier Gentle and Trooper Clarke. The House is unanimous that there is no warrant for reading Article 2 as a generalized provision to protect life, irrespective of any specific death or threat. In the present case the Claimants, tragically, lost their sons. But the right and the duty they seek to assert do not depend on the fact of their sons’ deaths. If they exist at all, they would have arisen before either young man was killed and would exist had both young men not died in the conflict.”�
“Significantly, the Courts have never applied Article 2 to the process of deciding on the lawfulness of a resort to arms, despite the number of times Member States have made that decision over the past half century and despite the obvious fact that such a decision almost always exposes military personnel to the risk of fatalities. There are, I think, three main reasons for this.”�
“First, the lawfulness of military action has no immediate bearing on the risk of fatalities. Indeed, a flagrantly unlawful surprise attack such as took place at Pearl Harbor in December 1941, is likely to minimise the aggressor’s casualties. In this case, as the Defendants pointed out, Fusilier Gentle died after U. N. Security Council resolution 1546 had legitimated British military action in Iraq; thus that military action by then was not unlawful, even if it had earlier been so.”�
“Secondly, the draftsmen of the European Convention cannot, in my opinion, have had in mind that Article 2 would provide a suitable framework or machinery for resolving questions about the resort to war. They would have been clearly aware of the U. N. Charter, adopted not many years earlier, and would have seen it for what it was. Its role was as the instrument, operating as between states, which provided the relevant code and means of enforcement in that regard, as compared with a Convention devoted to the protection of individual human rights.”�
“It must (further) have been obvious that an inquiry such as the Claimants’ claim would involve the courts with issues which judicial tribunals have traditionally been very reluctant to entertain. This is because they recognise their limitations as suitable bodies to resolve them. This is not to say that, if the Claimants do have a legal right, the courts cannot decide it. The Defendants agree that, if the Claimants do have a legal right, it is justiciable in the courts; they are not trying to mark out areas into which the courts may not intrude.”�
“They do, however, rightly say that, in deciding whether a right exists, it is relevant to consider what exercise of the right would entail. Thus the restraint traditionally shown by the courts in ruling on what has been called high policy B peace and war, the making of treaties, the conduct of foreign relations B does tend to militate against the existence of the right.”� [Cite].
“This consideration is fortified by the reflection that war is very often made by several states acting as allies: but a litigant would be required to exhaust his domestic remedies before national courts in which judgments would be made about the conduct of states not before the court, and even if the matter were to reach the [ECHR], there could be no review of the conduct of non member states who might nonetheless be covered by any decision.”�
Third, “[t]he obligation of Member States under Article 1 of the Convention is to secure “�to everyone within their jurisdiction’ the rights and freedoms in the Convention. Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside.”�
The deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and, although they were subject to the authority of the Defendants, they were clearly not within the jurisdiction of the U.K. as that expression in the Convention has been interpreted.
“The Claimants seek to overcome that problem, in reliance on authorities such as Soering v. United Kingdom (1989) 11 E.H.R.R. 439, by stressing that their complaint relates to the decision making process (or lack of it) which occurred here, even though the ill effects were felt abroad. There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v. United Kingdom (1996) 23 E.H.R.R. 413 and D v. United Kingdom (1997) 24 E.H.R.R. 423. In each of [these], action relating to an individual in the U.K. was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection: that the Claimants’ argument, necessary to meet the objection of extra territoriality, highlights the remoteness of their complaints from the true purview of [Convention] Article 2.”�
“Even if, contrary to my conclusion, the Claimants were able to establish an arguable substantive right under Article 2, they would still fail to establish a right to a wide ranging inquiry such as they seek. Nothing in the Strasbourg case law on Article 2 appears to contemplate such an inquiry. [Cites].”�
“The procedural right under discussion is, … a product of implication, and while the implication of terms may be both necessary and desirable, it is a task to be carried out by any court, particularly a national court, with extreme caution. This is because states ordinarily seek to express the terms on which they agree in a Convention such as this; terms which are not expressed may have been deliberately omitted; terms, once implied, are binding on all member states, and may be terms they would not have been willing to accept. I find it impossible to conceive that the proud sovereign states of Europe could ever have contemplated binding themselves legally to establish an independent public inquiry into the process by which a decision might have been made to commit the state’s armed forces to war.”�
“Both the [High Court] judge, [cite] and the Court of Appeal, [cite] dismissed the Claimants’ claim, despite the sympathy they felt for the Claimants personally. Although my own reasons are simpler, and do little justice to the arguments of counsel, I reach the same conclusion. I would dismiss the appeal …”� [Paras. 8 10].
Citation: Regina (Gentle et al.) v. Prime Minister [2008] 2 W.L.R. 879; [2008] U.K.H.L. 179; 2008 WL 833633 (HL); [2008] U.K.H.L. 20 (April 9, 2008).
Filed in: 2008 International Law Update, Issue4
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In case of apartheid victims’ suit against companies that collaborated with the South African Apartheid Government, Second Circuit finds that claims under Torture Victim Protection Act are properly dismissed where they failed to link defendants to state action; however, claims under the Alien Tort Claims Act are improperly dismissed where the plaintiffs plead a theory of aiding and abetting liability
[Note: The following article discusses the Second Circuit's opinion issued on October 12, 2007 in the matter of a case against corporate collaborators of the Apartheid Regime in South Africa. The October 12, 2007, opinion vacates the district court's dismissal of the Plaintiffs' claims under the Alien Tort Claims Act and remands to the district court. Defendants subsequently moved to stay the issuance of the mandate in this action, pending their petition for certiorari to the Supreme Court. On November 9, 2007, the Second Circuit denied the motion and explained that to grant a stay at this juncture would deprive the district court of the opportunity to address the principal issue upon which the Defendants seek review whether various prudential doctrines require dismissal of these claims. The Second Circuit expressly did not decide this issue and remanded to the district court. A dissenter wrote separately.]
Plaintiffs in this case are victims of apartheid related atrocities in South Africa. Plaintiffs filed suit in New York federal court under the Alien Tort Claims Act, 28 U.S.C. Section 1350 (“ATCA”), against numerous named and unnamed corporate defendants (Defendants). One group of plaintiffs also brought claims under the Torture Victim Protection Act of 1991, 28 U.S.C. Section 1350 (“TVPA”) and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sections 1961 et seq. (“RICO”). The Defendants allegedly collaborated with the Government in maintaining the racially biased apartheid system. Defendants filed a motion.
The South African Minister of Justice and Constitutional Development submitted an ex parte declaration to the district court, asserting that the proceedings interfered “with a foreign sovereign’s efforts to address matters in which it has the predominant interest.” The United States Department of State submitted a “Statement of Interest” claiming that “continued adjudication of the above referenced matters risks potentially serious adverse consequences for significant interests of the United States.”
The district court dismissed the claims under the ATCA and the TVPA and denied Plaintiffs motions to amend.
The United States Court of Appeals for the Second Circuit affirms the dismissal of the TVPA claims, but vacates the dismissal of the ATCA claims and the district court denial of Plaintiff’s motions to amend. The Circuit Court remands the case for further proceedings.
Plaintiffs asserted a claim under the TVPA, alleging that the defendants aided and abetted the apartheid Government, subjecting the Plaintiffs to torture and extra judicial killing within the meaning of the Torture Victim Protection Act, under actual or apparent authority, or under color of law. For purposes of the TVPA, an individual “acts under color of law” when he acts together with state officials or with significant state aid. The Court finds that the plaintiffs failed to link any Defendants to state aid or the conduct of state officials.
The Court vacates the district court’s dismissal of the Plaintiffs’ ATCA claims because the district court erroneously held that aiding and abetting violations of customary international law cannot provide a basis for ATCA jurisdiction. In this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the ATCA.
Furthermore: “We further vacate the district court’s order denying plaintiffs’ motion for leave to amend. In denying this motion, the district court relied, in part, on the erroneous premise that subject matter jurisdiction did not inhere and reasoned that any additional amendments to the pleadings would be futile. Because the denial of the motion rested, in part, on this erroneous premise, we vacate that order.”
“[W]e decline to affirm the dismissal of plaintiffs’ ATCA claims on the basis of the prudential concerns raised by the defendants the Supreme Court identified two different respects in which courts should consider prudential concerns in deciding whether to hear claims brought under the ATCA. First, the Supreme Court held that courts should consider prudential concerns in the context of determining whether to recognize a cause of action under the ATCA Second, the Supreme Court recognized that, in certain cases, other prudential principles might operate to ‘limit[] the availability of relief in the federal courts for violations of customary international law.’”
“Although the district court noted some collateral consequences that might result from the adjudication of these kinds of claims, the consequences it noted were primarily those “that would result from allowing courts in this country to hear civil suits for the aiding and abetting of violations of international norms across the globe.”
“We decline to address these case specific prudential doctrines now and instead remand to the district court to allow it to engage in the first instance in the careful “case by case” analysis that questions of this type require. This approach is particularly appropriate here because the plaintiffs have indicated that, if given the opportunity, they would narrow their claims and clarify the nature of their allegations against the various defendants, changes that may affect how the district court ultimately decides to resolve these issues.” [Slip op. 6 9]
Citation: Khulumani v. Barclay National Bank Ltd., No. 05 2141 cv (2d Cir. October 12, 2007).
Filed in: 2007 International Law Update, Issue12
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Inter American Court of Human Rights finds State of Colombia liable for massacre of judicial officials looking into activities of local paramilitary groups in January of 1989
On January 18, 1989, 15 judicial employees, including two judges and various technicians, were investigating human rights violations in the district of Santander, in particular the murder of 19 local merchants. A large group of armed men arrived claiming to be members of the Colombian rebel group FARC, and detained the judicial employees. Eventually, the armed men executed the judicial employees at a place called “La Rochela.” Three of them, however, survived. Before leaving the situs of the crime, the armed men painted graffiti on the victim’s vehicles, indicating that guerillas had carried out the murders. It turned out that the armed men belonged to a paramilitary group called “Los Masetos,” allegedly sponsored by area landowners and politicians, and supported by the military.
The lawyer group “Jose Alveras Restrepo” initiated the legal case with a 1997 demand on the Colombian Government. The Inter American Commission on Human Rights submitted the case to the Court on March 10, 2006, noting that most of the culpable parties had escaped investigation and punishment. A ruling on this massacre has special importance because the victims were judicial officers who were investigating acts of violence and identifying perpetrators.
The Commission charged Colombia with violating various human rights, including the right to life and its duty to respect human rights. In responding to the charges, Columbia admitted some of the relevant facts. For example, Colombia admitted that the perpetrators acted with the support or acquiescence of government officials.
The Court expressly outlines the grounds for Colombia’s “international responsibility” in this case. It has been the jurisprudence of the Court that international responsibility arises when a state violates its general obligations under the Inter American Convention on Human Rights. A state’s international responsibility may arise out of acts or omissions by any state organ, regardless of where it is in the state’s hierarchy, that violate the Convention. Unlike in criminal law, the culpability, intent, or precise identification of the responsible parties is irrelevant. It suffices to show that the state supported or acquiesced in the human rights violations at issue (¶¶ 66 68).
Turning to the case at bar, the Court finds Colombia internationally responsible for the human rights violations in this case on the following grounds. First, Colombia had set up a legal framework that was the basis for armed groups such as the one at issue. Decree 3398 of 1965 (implemented through Law 48 of 1968) permitted civilians to obtain military weapons to act as military self defense groups. These “self defense” groups later evolved into paramilitary groups.
Second, when the present human rights violations took place, that legal framework was still in existence. Third, the human rights violations occurred in the context of rules and methods for fighting guerillas issued by the highest authority of the armed forces. Military rules stated that military officials should organize the civil population in self defense groups and exercise control over them.(Mil. Regulations “Combat Manual Against Bandits and Guerillas” of June 25, 1982; “Counter Guerilla Combat Regulations” of April 9, 1969, approved by the General Command of the Military Forces).
Other findings included that members of the military had promoted the establishment of the paramilitary “Los Masetos,” and continued to support the group; that the army used members of “Los Masetos” as guides and provided them with military weapons; that Colombia admitted that, in the La Rochela massacre, “Los Masetos” acted with the support and acquiescence of government officials. Colombia also admitted that the victims were investigating crimes allegedly committed by paramilitary groups; that the purpose of the human rights violations in this case was to interfere with the investigation of other human rights violations and to kill the investigators; and finally that Colombia admits that it should have protected the judicial employees (¶¶ 101 103).
The Court concluded that Colombia must pay $7.8 million to the relatives of the 12 judicial workers. According to commentators, the Court appears to have established a general standard for state liability for acts committed by paramilitary groups. The Court had previously issued decisions regarding state responsibility for paramilitary killings in Colombia, namely the Puerto Bello and the Mapiripan Massacre cases.
Citation: Inter American Court of Human Rights, Case of the Rochela Massacre v. Colombia. Merits, Reparations and Costs. Judgment of May 11, 2007 (Only in Spanish) Series C No. 163. The decision is available in Spanish on the website of the Inter American Court of Human Rights at www.corteidh.or.cr. There are many comments on this decision available in English on the internet, for example at www.opinionjuris.org, www.forcolombia.org, and www.colectivodeabogados.org.
Filed in: 2007 International Law Update, Issue9
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European Court of Human Rights finds that action filed by Saddam Hussein against twenty-one members of Council of Europe who may have contributed forces to the U.S. run coalition in Iraq, inadmissible for failure to specify whether and how named Respondents took part in his capture and trial on charges of war crimes and crimes against humanity
The Applicant is Mr. Saddam Hussein, a sixty-nine-year-old Iraqi national. He has filed a proceeding for relief in the European Court of Human Rights (ECHR) against Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine, and the United Kingdom. He is the former President of Iraq and is currently detained there.
On March 20, 2003 coalition forces, led by a U.S. General, invaded Iraq. The U.S. and the U. K. provided the bulk of the forces supporting this campaign. (For current purposes, however, the ECHR assumes that the coalition forces included support from each of the twenty-one respondent States during the relevant period.) The coalition forces consist of Divisions, each with military responsibility for a particular zone of Iraq.
In early April, U.S. forces captured Baghdad. A U.S. General soon proclaimed the creation of the Coalition Provisional Authority (CPA), a civilian administration that would temporarily exercise governmental powers in Iraq. The following month, the U.S. Secretary of Defense appointed Ambassador Bremer as Administrator of the CPA. In July, an Iraqi Governing Council (IGC) came into being although the Administrator could veto any or all of its decisions. The CPA was to co-ordinate with the IGC on all matters involving the temporary governance of Iraq.
On December 13, 2003 U.S. troops captured the Applicant near Tikrit. During the June following, the U. N. Security Council adopted Resolution 1546 (2004). The Resolution approved the formation of a sovereign interim Government of Iraq which would assume, by June 30, 2004, full responsibility and authority for governing the country; it welcomed the end of the occupation and of the CPA when Iraq would reassert its full sovereignty. It also noted that, pending the assumption of full security responsibility by Iraqi forces, the presence of the multinational force in Iraq was at the request of the incoming Interim Government of Iraq (Arts 1, 2, 8 and 9 of the Resolution). On June 28, 2004, all CPA authority passed to the new Iraqi Interim Government (IIG). Two days later, U.S. forces handed the applicant over to the IIG for trial on war crimes, crimes against humanity and other charges.
The Applicant complained to the ECHR about his arrest, detention, handover and ongoing trial under Arts 2, 3, 5, and 6 together with Art.1 of the 6th and 13th Protocols to the European Convention for the Protection of Human Rights and Fundamental Freedoms. [312 U.N.T.S. 221, in force Sept. 3, 1953, as amended]. He complained that a finding of guilt after a “show trial” for which he lacked even the basic tools of defense would likely result in his execution. Applicant argued that he fell within the jurisdiction of one or more of the twenty-one respondent States, which continued to hold de facto power in Iraq as the occupying powers. All of them are parties to the Convention and thus stand responsible for ensuring the protection of human rights in Iraq.
In unanimously deciding that the application is inadmissible, the ECHR considers Applicant’s jurisdictional arguments unsubstantiated. “While the Applicant referred to certain UN documents, press releases and academic publications, these referred, without more, to coalition partners acting together. The Applicant did not address each Respondent State’s role and responsibilities or the division of labour/power between them and the U.S. He did not refer to the fact or extent of the military responsibility of each Division for the zones assigned to them. He did not detail the relevant command structures between the U.S. and non-U.S. forces except to refer to the overall Commander of coalition forces who was at all relevant times a U.S. General.”
“Finally, and importantly, he did not indicate which respondent State … had any (and, if so, what) influence or involvement in his impugned arrest, detention and handover. Despite the formal handover of authority to the Iraqi authorities in June 2004 and elections in January 2005, the Applicant simply maintained, without more, that those [coalition] forces remained de facto in power in Iraq.”
“In such circumstances, the Court considers that the Applicant has not established that he fell within the jurisdiction of the respondent States on any of the bases alleged. The Court considers that he has not demonstrated that those States had jurisdiction on the basis of their control of the territory where the alleged violations took place . [Cites]. Even if he could have fallen within a State’s jurisdiction because of his detention by it, he has not shown that any one of the Respondent States had any responsibility for, or any involvement or role in, his arrest and subsequent detention. [Cites].”
“This failure to substantiate any such involvement also constitutes a response to his final submission to the effect that the Respondent States were responsible for the acts of their military agents abroad. Finally, there is no basis in the Convention’s jurisprudence and the Applicant has not invoked any established principle of international law which would mean that he fell within the Respondent States’ jurisdiction on the sole basis that those States allegedly formed part (at varying unspecified levels) of a coalition with the U.S., when the impugned actions were carried out by the U.S., when security in the zone in which those actions took place was assigned to the U.S. and when the overall command of the coalition was vested in the U.S.”
“Accordingly, the Court [unanimously] does not consider it to be established that there was or is any jurisdictional link between the Applicant and the Respondent States or, therefore, that the Applicant was capable of falling within the jurisdiction of those States, within the meaning of Art.1 of the Convention.” [224-25].
Citation: Hussein v. Albania et al., (2006) 42 E.H.R.R. SE 16; 2006 WL 1518660 (ECHR) (4th Section, 2006).
Filed in: 2006 International Law Update, Issue8
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Third Circuit declines to grant relief under Convention Against Torture where claim rests only on generalized allegations of deplorable prison conditions in proposed country of removal
Federal authorities admitted Kesner Francois (Applicant), a native and citizen of Haiti, to the United States as a lawful permanent resident on March 8, 1979. Between 1992 and 1997, an American court had convicted him of possessing a controlled substance along with aggravated assault and had sentenced him to six years in prison. During 2003, Applicant returned to Haiti three times.
On August 10, 2003, however, U.S. officials denied him entry into the U. S. and handed him over to the Bureau of Immigration and Customs Affairs because his criminal convictions made him inadmissible. The government eventually served Applicant with a Notice to Appear at a removal hearing. Conceding his removability, Applicant applied for asylum, withholding of removal, and relief under Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (in force for U. S. Nov. 20, 1994) (CAT). The immigration judge denied Applicant’s claim for asylum and withholding of removal, but granted relief under the CAT.
The Department of Homeland Security (DHS) appealed this decision to the Board of Immigration Appeals and the BIA reversed. Applicant then filed a habeas corpus petition in the district court but the court denied relief. He next appealed to the U. S. Court of Appeals for the Third Circuit. As of May 19, that Court vacates the district court’s opinion and denies Applicant’s petition for review of the BIA’s decision.
The Court reviews the BIA’s legal decisions de novo while deferring to the BIA’s reasonable interpretations of law. The Foreign Affairs Reform and Restructuring Act of 1998 implemented Article 3 of the CAT and allowed relevant agencies to promulgate regulations. Under certain circumstances, the Department of Justice’s regulations allow aliens to obtain relief under the CAT.
They provide that “(a)(1) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.”
“(a)(2) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that does not amount to torture.”
“(a)(3) Torture does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.”
“(a)(4) In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:
“(I) The intentional infliction or threatened infliction of severe physical pain or suffering;”
“(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;”
“(iii) The threat of imminent death; or”
“(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.”
“(a)(5) In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.” 8 C.F.R. Sections 208/18 (a)(1)-(a)(5).”
In a removal case, an Applicant who makes a CAT claim must show that it is more likely than not that he or she would be tortured if sent to the country of removal. The evidence to be considered in evaluating a CAT claim includes “[e]vidence of past torture inflicted upon the applicant;” “[e]vidence of gross, flagrant or mass violations of human rights within the country of removal;” and “[o]ther relevant information regarding conditions in the country of removal.” See 8 C.F.R. Section 208.16(c)(3); see also 8 C.F.R. Section 208.17(a). If the Applicant proves that it is more likely than not that he or she would be tortured, then withholding or deferral of removal becomes mandatory.
Here, Applicant contends that he is entitled to CAT relief because, upon his removal to Haiti, he will have to endure indefinite imprisonment there. His claim rests upon generalized prison conditions as described in the U. S. State Department’s Country Report on Human Rights Practices – Haiti 2002, the Human Rights Watch’s World Report 2003 – Haiti and the INS Resource Information Centers’ Haiti — Information on Conditions in Haitian Prisons and Treatment of Criminal Deportees.
These reports all state that Haiti routinely imprisons criminal deportees and often detains them indefinitely. On average, the government releases detained deportees after several months of imprisonment. They can get out of the National Penitentiary, however, only after a close family member, such as a parent, presents evidence of identification as well as proof of relationship to the deportee.
The relative must also promise to take responsibility for the deportee upon his or her release. If the released deportee commits a crime in Haiti and is not caught, the police will imprison the responsible relative until they catch the deportee. (Not surprisingly, this practice discourages some family members from sponsoring the release of their loved ones.)
According to the cited reports, the conditions in Haitian prisons are atrocious; they range from overcrowding to malnutrition to abuse. Prisoners and detainees lack basic hygiene and health care. They often suffer from AIDS and tuberculosis. Police mistreatment of suspects is routine. Beatings with fists, sticks, and belts are common forms of abuse.
While the Third Circuit agrees that the conditions Applicant will likely face in Haitian prisons following his removal to Haiti are deplorable, it concludes that the conditions do not constitute “torture” under the CAT. In Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), Auguste was a Haitian alien facing removal who based his claim for CAT relief on the wretched conditions in Haitian prisons. This Court spurned his claim because miserable conditions of confinement alone do not constitute torture under the CAT.
“[W]e noted that ‘[t]he District Court concluded that ‘there must be some sort of underlying intentional direction of pain and suffering against a particular petitioner, more so than simply complaining of the general state of affairs that constitute conditions of confinement in a place, even as unpleasant as Haiti.’ Id. at 137. Given our discussion in Auguste, we conclude that the generalized allegations of prison conditions [Applicant] advances here do not rise to the level of ‘torture.’” [Slip op. 7]
Finally, Applicant does not claim that he has been tortured in Haiti. He does not allege that, if the U. S. deports him to Haiti, officials there would personally direct any coercion, force, cruelty or brutality at him. The authorities would probably detain Applicant upon arrival and subject him to the above-mentioned prison conditions. On the whole, however, they do not sink to the level of “torture” as defined in the CAT.
Citation: Francois v. Gonzales, 448 F.3d 645 (3rd Cir. 2006).
Filed in: 2006 International Law Update, Issue6
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On appeal of decision by Board of Immigration Appeals, Sixth Circuit decides that convicted alien’s removability is timely but remands his claims under Convention Against Torture to Board for further proceedings
Quang Ly Tran (Applicant) is an ethnic Chinese from Vietnam who entered the U.S. in 1980 as a refugee and later adjusted his status to lawful permanent resident. Eight years later, Applicant pled guilty to aggravated murder and robbery. The Immigration and Naturalization Service (INS) entered an Order to Show Cause why Applicant should not be deported. He appealed to the BIA which closed the proceedings for deportation, but left the removal issues open.
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to reorganize and streamline the removal process for deportable aliens. Section 321 of IIRIRA expanded the term “aggravated felony” as it appears in the general definition provisions at the start of the Immigration and Naturalization Act. See 8 U.S.C. Section 1101(a)(43)(F) (2000). The effective date provisions make this Section applicable retroactively.
Four years later, the INS began a revised removal process against the Applicant based on the same 1988 convictions that were the subject of the first deportation proceedings. In the second action, the BIA reversed the decision of the Immigration Judge (IJ). The IJ had found the Applicant removable to Vietnam because of his felony conviction but had postponed his deportation on the grounds that Applicant qualified for protection under the CAT. The BIA, however, ordered his removal to Vietnam and Applicant filed a timely appeal.
In a May 17 opinion, the U. S. Court of Appeals for the Sixth Circuit holds that the BIA had properly applied the IIRIRA’s provision allowing for the deportation of aliens convicted of an aggravated felony to Applicant’s pre-IIRIRA conviction. Nevertheless, it remands his CAT claim to the BIA for clarification.
On the removal issue, this Court rejects Applicant’s contention that the BIA had erred by retroactively applying the IIRIRA to his 1988 pre-IIRIRA felony convictions. Section 321(b) of the IIRIRA spells out congress’s intent to apply the aggravated felony provision to convictions handed down before the law’s enactment. 8 U.S.C. Section 1101(a)(43) (2000). Section 321(c), however, limits the application of the revised definition of aggravated felony to proceedings filed after September 30, 1996. The proceeding which Applicant challenges began in December 2000, well within Section 321(c)’s temporal limitation.
Nevertheless, the Court remands Applicant’s CAT claim to the BIA to clarify the standards and burdens of proof it employed in reviewing Applicant’s appeal. To obtain relief under the Convention, the Applicant bears the burden of showing that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. Section 1208.16(c)(2).
Judicial review of a “final order of removal against an alien who is removable by reason of having committed [an aggravated felony]” is limited to questions of law. 8 U.S.C. Section 1252(a)(2)(C),(D). These are (1) whether the BIA used the correct standard in reviewing the IJ’s decision and (2) whether it applied the correct burden of proof to Applicant’s evidence.
Here, the Court finds that the BIA’s decision was less than pellucid as to what standard of review it was employing. The matter was particularly significant in Applicant’s case because the IJ had withheld removal under the CAT and Applicant had presented unrebutted evidence as to the likelihood of his facing torture upon being sent back to Vietnam.
Accordingly, the Court remands the case to the BIA so that it could (1) clearly conform to the proper standard of BIA review of his CAT claim, and (2) apply the apt burden of persuasion to Applicant’s evidence.
Citation: Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006).
Filed in: 2006 International Law Update, Issue6
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In lawsuit against former Haitian military officer for alleged torture and other torts, Eleventh Circuit finds that equitable tolling applies to T.V.P.A. and A.T.C.A. claims, and that onus of proof that Haitian remedies were available to plaintiffs and that they had failed to exhaust them rests on defendant
Lexiuste Cajuste and Marie Jeanne Jean (plaintiffs), Haitian citizens, filed a lawsuit in Florida against Carl Dorelien (defendant), a former Colonel of the Haitian Armed Forces. The U.S. Immigration Service had arrested defendant and had sent him back to Haiti in January 2003. (In a curious development, Dorelien came back to the U.S. and won $3.2 million in the Florida State Lottery.)
In the complaint, one plaintiff alleged his subjection to torture, arbitrary detention, as well as to inhuman and degrading treatment by defendant. The other alleged that defendant was responsible for the extra-judicial killing of her husband. Plaintiffs based their claims, inter alia, on the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350, the Torture Victim Protection Act (TVPA), 28 U.S.C. Section 1350 note, Pub.L. No. 102-256 (1992).
The district court granted defendant’s motions to dismiss. In particular, the court dismissed Cajuste’s claims for failure to file suit within the 10-year statute of limitation, and dismissed Jean’s claims for failure to exhaust her remedies in Haiti. This appeal followed.
The U.S. Court of Appeals for the Eleventh Circuit vacates the district court orders and remands for further proceedings.
The Court first turns to the dismissal of Cajuste’s claims based on the statute of limitations. Under the TVPA and the ATCA, plaintiffs must file an action within 10 years of the alleged torture, extra-judicial killing or other torts committed in violation of the law of nations or a U.S. treaty. This limitation, however, is subject to equitable tolling.
Cajuste stated in his complaint that he was arrested in April 1993 and severely beaten. He fled Haiti in September 1994. The Court agrees with Cajuste that it has to treat the statute of limitations as equitably tolled because defendant remained in office until 1994 and was not physically present in the U.S. Pursuant to the TVPA, the courts should toll the statute of limitations at least until defendant had entered the U.S. making it possible to serve process upon him.
In the Circuit Court’s view: “… [T]he district court erred in finding that ‘equitable tolling should not be applied in this case.’ The pattern and practice of torture, mass murder, intimidation and reprisals against perceived opponents of the government during the military regime in Haiti from 1991 to 1994 as alleged in Cajuste’s complaint, clearly qualify as extraordinary circumstances to toll the statute of limitations until Dorelien was removed from his position, the repressive security forces were dismantled and the democratically elected government resumed power. Because Cajuste filed his claims on October 23, 2003, he filed within ten years of the statute of limitations being tolled, and his claims as alleged are therefore, timely.” [Slip op. 6]
The Circuit Court then turns to Jean’s claims. The TVPA, 28 U.S.C. Section 1350(2)(b), provides preliminarily that a claimant must show that he or she has exhausted adequate and available Haitian remedies. On this point, the Court disagrees with the court below on several grounds.
“First, the exhaustion requirement does not apply to ATCA. … Second, the exhaustion requirement pursuant to the TVPA is an affirmative defense, requiring the defendant to bear the burden of proof. … This burden of proof is substantial. The Senate Report to the TVPA specifically stated: ‘[T]he committee recognizes that in most instances the initiation of litigation under this legislation will be virtually prima facie evidence that the claimant has exhausted his or her remedies … [...]” [Slip op. 6]
Here, the district court relied only on an affidavit stating that Jean had obtained a judgment in Haiti against Dorelien in November 2000. A Haitian tribunal had found Dorelien liable for the “Raboteau Massacre” in which Jean’s husband died. The district court, however, had erred in disregarding Jean’s allegations that her judgment was ineffectual in Haiti because, in 2004, defendant had gotten out of prison and soon regained a position of power in Haiti. As a result, defendant had failed to meet his burden of proof to show a failure on Jean’s part to exhaust her available remedies.
Citation: Jean v. Dorelien, 431 F.3d 776 (11th Cir. December 1, 2005). [More information on this case is available on website of The Center for Justice and Accountability, www.cja.org, which took an active role in it.]
Filed in: 2006 International Law Update, Issue 1
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Although California court had previously convicted American woman of abusing her second child, European Court of Human Rights rules that ex parte seizure of her newborn by British authorities followed by adoption proceedings without counsel breached her rights of access to courts and unduly interfered with her family rights under European Human Rights Convention
This is a proceeding in the European Court of Human Rights (ECHR) in which Pam (fictional name), along with her husband and child (applicants), complained that the British government had violated rights assured to her under the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; T.S. 71 (1952); Cmd 8969) (the Convention).
A U.S. citizen originally residing in California, Pam gave birth to a son in January 1976. Pam next married her first husband and then, in 1985, had another son, Baker (fictional name). Seven years later, the couple separated and fought over Baker’s custody. Between 1990 and 1994, Pam had taken Baker to their physician 47 times for various complaints, such as diarrhea and fever. Finally, a stool test at a hospital showed the presence of a strong laxative in Baker’s system, leading a doctor to report Pam for laxative poisoning.
California authorities soon took Baker into protective custody as a suspected victim of Munchausen Syndrome by Proxy (MSBP). According to the ECHR, MSBP “is a label sometimes used to describe a form of psychiatric illness, mainly found in women, who seek attention by inducing illness in their children or inventing accounts of illness in their children, and by repeatedly presenting their children to the medical authorities for investigation and treatment.”[¶ 13]
In October 1995, a California court convicted Pam of cruelty to Baker and endangering his health. It sentenced her to three years probation and suspended a sentence of three months in jail. The court also ordered her to complete a “psychological and psychiatric treatment program.” Violating her probation order, Pam went to the U.K. to visit Charles (fictional name), an English social worker whom she had met in the U.S., where he was doing doctoral research on MSBP. In September 1997, Pam and Charles got married in the U. K. and Pam soon found out that she was expecting Sara (fictional name).
A California district attorney learned of that pregnancy and got in touch with the local U.K. authority — the Rochdale Metropolitan Borough Council (Rochdale). He outlined the circumstances that had led to Pam’s California conviction. Rochdale decided to place Sara on the child protection register and to do a full risk evaluation pursuant to Section 47 of the Children Act of 1989.
Seemingly in complete denial about the California events, Pam and Charles began to evasively resist the assessment. After its medical expert concluded that Pam posed a high level of risk to Sara, Rochdale asked the High Court for an emergency protection order (EPO) effective at Sara’s birth. After an ex parte hearing, the High Court issued the EPO.
As soon as Sara entered the world in May 1998, authorities served the EPO on the parents and placed the newborn in foster care. On the same day, the High Court let Pam’s attorneys withdraw from the case, based on their complaints that Pam was demanding that they use unreasonable tactics. Viewing a substantial delay as inimical to the final resolution of Sara’s future, however, the judge then denied Pam a continuance to enable her to have her legal aid certificate reinstated. Finally, the judge opined that Pam clearly understood the extensive documentation and that she had the intelligence to enable her to put on her own case clearly and coherently.
The judge later entered a care order and, after twenty more days of hearings with many witnesses, an order freeing Sara for adoption. He spurned Pam’s claim that the lack of legal representation had robbed her of a realistic chance to make out a persuasive case. Although the judge remarked that there might seem to be an “element of railroading,” he stressed that Sara’s interests had to be uppermost.
Unable to get leave to appeal to the Court of Appeal (Civil Division), Pam, Charles and Sara (applicants) applied to the ECHR in Strasbourg, urging that the British government had breached their rights under Convention Articles 6 and 8.
Article 6(1) of the Convention in relevant part provides: “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
In addition, Article 8 provides in part: “1. Everyone has the right to respect for his … family life; 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the protection of health … or for the protection of the rights and freedoms of others.”
The applicants contended first that, under Article 6, the interests of justice demanded that she have counsel in complex judicial proceedings which had such serious consequences for all three applicants. A seven-judge panel of the ECHR agrees.
“Firstly, art 6(1) of the Convention embodies the right of access to a court for the determination of civil rights and obligations. [Cite] Failure to provide an applicant with the assistance of a lawyer may breach this provision, where such assistance is indispensable for effective access to court, … by reason of the complexity of the procedure or the type of case.”
“… [T]he right of access to court is not absolute and may be subject to legitimate restrictions. … [T]he restriction will not be incompatible with art 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” [¶¶ 89-90]
The Court then applies these general principles to applicants’ case. “Recognising that the courts in this matter were endeavouring in good faith to strike a balance between the interests of the parents and the welfare of [Sara], the court is nevertheless of the opinion that the procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective manner on the issues which were important to them.”
“For example, … the judge’s decision to free [Sara] for adoption gave no explanation of why direct contact was not to be continued or why an open adoption with continued direct contact was not possible, matters which the applicants apparently did not realise could, or should, have been raised at that stage. The assistance afforded to [Pam] by the counsel for other parties and the latitude granted by the judge to [Pam] in presenting her case was no substitute, in a case such as the present, for competent representation by a lawyer instructed to protect the applicants’ rights.” [¶ 99]
The ECHR then turns to applicants’ claims under Convention Article 8 with a preliminary observation. “The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by art 8 of the Convention. [Cite] Any such interference constitutes a violation of this article unless it is ‘in accordance with the law,’ pursues an aim or aims that are legitimate under para 2 of art 8 and can be regarded as ‘necessary in a democratic society.’” [¶ 113]
“Furthermore, the taking of a new born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved.” [¶ 116]
The Court then explains that the “margin of appreciation”(MOA) belonging to the competent national authorities varies widely depending on the nature of the issues and the importance of the interests at stake. “In the circumstances, the court considers that the decision to obtain the emergency protection order after [Sara's] birth may be regarded as having been necessary in a democratic society to safeguard the health and rights of the child. The local authority had to be able to take appropriate steps to ensure that no harm came to the baby and, at the very least, to take the legal power to prevent [Charles] or any other relative [from] removing the baby with a view to foiling the local authority’s actions, and thereby placing the baby at risk.” [¶ 130]
In the Court’s view, however, the fatal flaw was the harsh manner in which the authorities carried out the measure. “Though the harm which [MSBP] poses to a child, particularly if continued over a long period of time, cannot be underestimated, there was in the present case no suspicion of life threatening conduct. This made the risk to be guarded against more manageable and it has not been shown that supervision could not have provided adequate protection against this risk.” [¶ 132]
“The court concludes that the draconian step of removing [Sara] from her mother shortly after birth was not supported by relevant and sufficient reasons and that it cannot be regarded as having been necessary in a democratic society for the purpose of safeguarding [Sara]. There has therefore been, in that respect, a breach of the applicant parents’ rights under art 8 of the Convention.” [¶ 133]
Citation: P, C and S v. United Kingdom (App no 56547/00), [2002] 3 F.C.R. 1 (Eur. Ct. Hum. Rts. July 16, 2002).
Filed in: 2002 International Law Update, Issue 10
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