EHRAC-Summer-Bulletin-2015-WEB

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EHRAC-Summer-Bulletin-2015-WEB

Contentsp3p4p5p7p8p9Interview with Judge OleksandrVolkovHassan v the UKContinuing repression of Azerbaijanihuman rights defendersArmenia, amnesties andinternational crimesBusiness and human rights inRussiaViolence against women in Georgiap10 The Voice of Beslanp12 Judgments in recent human rightscasesp16 Information about EHRACWelcome to the Summer2015 edition of the EHRACBulletinThe European Court of Human Rights recently held a hearing ina case from Russia relating to the terrible events at Beslan SchoolNo.1 more than 10 years ago, in which hundreds of people werekilled. In this edition of the EHRAC Bulletin, Ella Kesayeva, of theVoice of Beslan, discusses the case and the potential consequencesof the Court’s judgment, which is still awaited. Also on Russia, EkaterinaAristova analyses the relevance of international standardsregulating business and human rights.Eliso Amirejibi and Salome Chagelishvili, of the Anti-ViolenceNetwork Georgia, consider what needs to be done to challengerising levels of domestic violence against women in Georgia. OnAzerbaijan, Ramute Remezaite (EHRAC) provides an update on thecontinuing, serious repression of human rights defenders. OleksandrVolkov is interviewed following his reinstatement earlier thisyear as a Supreme Court judge in Ukraine, as was required by theEuropean Court in its 2013 judgment.Finally, two articles address jurisprudential developments in Strasbourg:Giulia Pecorella discusses the European Court’s case-lawon amnesties (in the light of Armenia’s failure to date to ratify theRome Statute of the International Criminal Court) and Dario RossiD’Ambrosio considers the implications of the 2014 grand chamberjudgment in Hassan v United Kingdom for the protection of the rightto liberty in international armed conflicts.Philip Leach, Director, EHRACCover image: From the Voice of Beslan, following the Beslan School Siege, Ella Kesaeva2 EHRAC BULLETIN | SUMMER 2015


Following the judgment, it tookalmost two years for a vote on yourreinstatement in the Verkhovna Rada(the Ukrainian Parliament). How hadthe domestic situation changed withregard to independence of the judiciaryin that period?My reinstatement as a judge of the SupremeCourt of Ukraine was welcomed by the judicialcommunity at home and abroad. 2 Ukraine hasalso begun the process of legislative reformin line with the ECtHR’s judgment. 3 Forexample, the new law “On the Judiciary andthe Status of Judges” provides for a systemof judicial discipline which is in accordancewith the recommendations given by the ECtHRin its judgment in my case. 4 Work has begunon amending the Constitution of Ukraine tobring the system of judicial appointments inline with European standards (a project withwhich I am involved). 5 I hope that Ukraine willsuccessfully develop and implement a set ofreforms for the judiciary which will address thesystemic problems identified by the ECtHR andensure the true independence of the judiciaryin accordance with the criteria of the Councilof Europe and the European Union. I amconfident that despite the current situation inUkraine - in particular the war in Donbass, andthe problems with the economy - we will beable to develop and adopt the legislative frameworkby the end of 2015 or early 2016. Wewill then work on the practical implementationof reforms, including judicial training, and theadaptation of Ukrainian legislation and judicialprocedures in line with European standards.Of course, there are still considerable challengesrelating to the independence of the judiciary inUkraine. Constitutional provisions have not beenchanged, and the process for judicial appointmentsand dismissals (and the formation ofthe High Council of Justice) remains the same.Parliament has adopted laws on ‘lustration’procedures, including in respect of judges. 6 TheVenice Commission has sharply criticised theselaws, which are now being amended. 7 It has notyet been possible to improve public trust in thejudiciary, whose members continue to be subjectedto displays of disrespect and aggressionby members of the public. This is all of seriousconcern to the judicial community. Legislativeamendments alone will not resolve the problemof the lack of judicial independence. We havea lot of work to do, both in the judicial systemand in society. Only through impartial, lawfuland fair court decisions, taken in accordancewith the rule of law, can Ukrainian judges regainthe trust of society.How have the last two months as aSupreme Court Judge compared tothe time you had previously spent inthis position?On 2 February 2015, I was reinstated as aJudge of the Supreme Court of Ukraine. I workwithin the Judicial Chamber on AdministrativeCases. The powers of the Supreme Court arecurrently being amended. For example, itsdecisions will have the status of precedent,which will increase the responsibility, workloadand expectations of its members. Thismakes our work even more interesting.Notes1. http://goo.gl/xYNVMy para. 199-2022. See e.g. Rechters voor Rechters http://goo.gl/Bb8tQj;Supreme Court of Ukraine http://goo.gl/VMv4CQ; TheLaw Society of England and Wales http://goo.gl/BAidXw3. http://goo.gl/zeWBGi4. http://goo.gl/xYNVMy, paras 199-2025. http://goo.gl/h8qK5u6. http://goo.gl/8D9MPe7. http://goo.gl/E59S7fHassan v United KingdomThe implications of the Grand Chamber judgment for the protection of liberty in international armed conflictsDario Rossi D’Ambrosio, LLM (London), Laurea Magistrale (Rome)The CaseIn September 2014, the Grand Chamber of theEuropean Court of Human Rights (‘ECtHR’)delivered its judgment in the case of Hassanv UK. 1 The judgment is the first time that theECtHR has expressly stated its views on theinteraction between international humanitarianlaw (‘IHL’) and the European Conventionon Human Rights (‘ECHR’). The ECtHRfocused on the right to liberty in the contextof international armed conflicts (‘IACs’), andthe judgment has consequences for the legalregime applicable to the deprivation of libertyin conflict situations. 2 The case concerned thecapture by British forces of Tarek Hassan, a22-year-old Iraqi citizen, in Iraq. He was thebrother of a former general manager in theBa’ath Party and general in the Al-Quds Army.On 26 April 2003, Tarek Hassan was foundby British troops, with a rifle, on the roof ofhis family home. He was then arrested andbrought to Camp Bucca, Iraq, where he wasdetained. About a week later British forcesreleased him at Umm Qasr, Iraq, and approximatelyfour months later his body was foundin a distant part of the country (in an area that No violation of Articles 5(1), 5(2),was not under British control). 35(3), and 5(4) of the ECHRThe ECtHR found the complaints relating to On the question of whether Tarek Hassan’sthe alleged violations of Art. 2 and 3 of the right to liberty was violated, the ECtHR heldECHR manifestly ill-founded. 4 The claims that his capture and detention by the UK fellunder Article 5(1), 5(2), 5(3) and 5(4) of within the limits prescribed by Art. 5 of thethe ECHR were found to be admissible, and ECHR, because it was carried out in accordancewith IHL and was not arbitrary. 7the ECtHR concentrated on the relationshipbetween IHL and the ECHR in this context.The ECtHR also considered the question of In its reasoning, the ECtHR referred to thethe extraterritorial application of the ECHR. established principle that the ECHR is to beinterpreted in light of Art. 31(3)(b) of theExtraterritorial application of the 1969 Vienna Convention on the Law of Treaties(‘VCLT’) which allows for consideration ofECHR“[a]ny subsequent practice in the applicationThe ECtHR unanimously recognised the extraterritorialapplication of the ECHR in respect of of the parties regarding its interpretation”.of the treaty which establishes the agreementTarek Hassan when he was captured by British The ECtHR noted that a consistent practicetroops, after he entered Camp Bucca, and when by States could be considered to modify thehe was cleared for release. 5 In doing so, the ECtHR text of the ECHR itself, 8 and noted that therejected the Government’s arguments that jurisdictionarising from “total and exclusive control” over under Article 15 of the Convention in respectState practice “of not lodging derogationsan individual did not exist in the active phase of of detention under the Third and Fourthhostilities in the 2003 war in Iraq, and that IHL Geneva Conventions during internationalwas therefore the only applicable law. 6 armed conflicts is mirrored by State practiceEHRAC BULLETIN | SUMMER 20154


eported numerous procedural inadequaciesand alleged violations of fair trial standards.For example, during their initial court hearings,Intigam and Rasul were kept handcuffed in ametal cage, which not only prevented themfrom effectively communicating with theirdefence lawyers, but arguably also constitutedinhuman and degrading treatment under thestandards of the European Convention onHuman Rights (‘ECHR’).Intigam and Rasul have submitted applicationsto the European Court of Human Rights(‘ECtHR’) concerning their pre-trial detention.They argue, inter alia, that the Azerbaijaniauthorities did not have sufficient evidenceto establish a ‘reasonable suspicion’ to justifytheir pre-trial detention (in violation of Article5(1)(c) of the ECHR), and that their arrest anddetention was politically motivated (in violationof Article 18 of the ECHR). Intigam hasalso complained that the authorities violatedhis right to respect for private and family life,home or correspondence (under Article 8 ofthe ECHR) as a result of several search andseizure operations carried out at his home andoffice shortly after his arrest. The Governmentof Azerbaijan has submitted its observations inthese two cases, and the applicants have filedtheir responses and just satisfaction claims.Subject to the ECtHR requesting any furtherinformation from the parties, judgments maybe expected.In addition to the above, Intigam submitted a(separate) application to the ECtHR concerningthe authorities’ alleged failure to providehim with adequate medical treatment whilein detention and the poor detention andtransportation conditions that he was forcedto endure in violation of, inter alia, Article3 of the ECHR. The government was askedto submit its observations on 26 May 2015.The applicant’s response and just satisfactionclaim will be submitted in July 2015.The detention and conviction of Rasul andIntigam was met with outrage by many inthe international community, 2 and promptedinterventions in the pre-trial detention casesbefore the ECtHR from the Council of Europe’sCommissioner for Human Rights. In respect ofboth cases, the Commissioner noted:“The prosecution of human rights defendersand prominent journalists in Azerbaijanconstitute reprisals against those who haveco-operated with the Council of Europe or otherorganisations and denounced human rightsviolations in the country. The close workingrelationships of the Commissioner’s Officeand the Council of Europe as a whole withthese human rights defenders reinforce thebelief that they are being deliberately targetedwith criminal proceedings as a result of theirengagement in activities that should be perfectlylegal in a well-functioning democracy”. 3Human rights defender and founder andDirector of the Peace and Democracy Institute,Leyla Yunus, and her husband Arif Yunus, aprominent historian, remain in custody followingtheir arrests in summer 2014 on charges ofstate treason, fraud, forgery, and tax evasion.In October 2014, their pre-trial detentionwas extended until August 2015. Accordingto their lawyers, the domestic investigationinto these charges has not even started, whiletheir respective health conditions continue todeteriorate (with Leyla’s state of health reportedlycritical). Pursuant to the ECtHR’s orderfor interim relief granted in October 2014,the Azerbaijani Government was required toprovide Leyla and Arif with adequate medicaltreatment, and to ensure Leyla’s transfer to aspecialised medical facility if such treatmentwas not available in detention. Accordingto the applicants’ lawyers, none of this hasDuring their initialcourt hearings,Intigam and Rasulwere kepthandcuffed in ametal cagehappened yet. Leyla did receive two visitsfrom a German doctor in January and March2015, but the Government has so far refusedto disclose the doctor’s report or provide Leylawith the medication prescribed.Leyla and Arif submitted applications to theECtHR raising alleged violations of Art. 5, 6, 8and 18 of the ECHR arising out of their arrestand pre-trial detention, searches conductedon them at the airport and in their home,and various statements which the applicantsconsider violate the presumption of innocence.The Government has submitted its observationson the merits of the case, and the applicantswill submit their response and just satisfactionclaims shortly. The Commissioner for HumanRights intervened in the case in April 2015,emphasising that the applicants’ detention isan attempt to silence their efforts to report onhuman rights violations, and is designed toprevent them from continuing their work (includingin relation to efforts to peaceably resolvethe ‘frozen’ conflict between Azerbaijan andArmenia over the Nagorno-Karabakh region). 4Khadija Ismayilova, an award-winninginvestigative journalist who worked for RadioFree Europe and the Organised Crime andCorruption Reporting Project, has also beensubjected to judicial persecution. She wasarrested and detained by the authorities on5 December 2014 on charges of incitinga former colleague to attempt suicide; acharge she denies, and which was laterrefuted by that same colleague 5 . On 13February 2015, new charges of tax evasion,illegal business, and abuse of power werebrought against her. While the investigationwas underway, Khadija was denied familyvisits for three and a half months, withoutany explanation. The initial charges are thesubject of an ongoing investigation, whilethe investigation into the later charges haseffectively been suspended.The above-mentioned cases are seen asa disturbing illustration of the pattern ofreprisals against critical voices who dare tospeak out against the wrongdoings of theAzerbaijani authorities, and expose humanrights abuses calling for those responsible tobe brought to justice. Now that these criticalvoices are silenced, the lawyers defendingthem are the next target of the State’sefforts to stamp out any form of dissent.Khalid Bagirov, lawyer of Rasul Jafarov, Leylaand Arif Yunus, and many other detained orimprisoned critical voices in Azerbaijan, isfacing disbarment following spurious disciplinaryproceedings that were brought againsthim in September 2014. On 10 December2014 the Azerbaijan Bar Association appliedto the local courts requesting Khalid’s disbarment.The grounds of the request were thatKhalid had violated the norms of advocates’ethics by failing to wear a lawyer’s gown incourt and stated that “If there were justicein Azerbaijan, the court would not makeunjust and preconceived decisions and thejudge Rashid Huseynov would not work”(a quotation referring to the failure of thedomestic courts to implement the ECtHR’sjudgment in Ilgar Mammadov v. Azerbaijan(No. 15172/13)). While the disbarmentproceedings are pending, Khalid’s licenceto practice law has been suspended, thuspreventing him from continuing to legallyrepresent detained human rights defendersbefore the domestic courts. It is not yetknown when the merits of the disbarmentcase will be heard.In further attempts to restrict access ofprominent human rights defenders tolawyers of their choosing, four of the fivelawyers representing Intigam Aliyev (FarizNamazli, Alayif Hasanov, Adil Ismayilov andAnar Gasimli) were removed from his case.Javad Javadov, a lawyer for Leyla Yunus,was removed from her case, as was KhalidBagirov. Another lawyer who was acting forLeyla, Alayif Huseynov, was sentenced toEHRAC BULLETIN | SUMMER 20156


240 hours’ community service followinghis conviction under trumped up charges ofcriminal libel.Referring to the disbarment proceedingsagainst Khalid Bagirov, PACE President AnneBrasseur commented that “against the backgroundof increasing intimidation of humanrights defenders in Azerbaijan, such clearpressure on independent lawyers defendingcivil society activists is unacceptable” 6 .Notes1. This article follows on from an article in the Winter2014 EHRAC Bulletin: http://www.ehrac.org.uk/zZTCd2. Statement of United Nations Special Rapporteurs:http://goo.gl/rjcr91Statement of the Committee on Legal Affairs and HumanRights of the Council of Europe ParliamentaryAssembly: http://goo.gl/JA6ohaEuropean Parliament resolution on the persecution ofhuman rights defenders in Azerbaijan:http://goo.gl/ohjURJ3. Third party intervention by the Council of EuropeCommissioner for Human Rights under Article 36,para. 3, of the ECHR, Application No. 68762/14,Intigam ALIYEV v. Azerbaijan, CommDH(2015)6, 16March 2015, para 25 https://goo.gl/hFjVz6;Third party intervention by the Council of EuropeCommissioner for Human Rights under Article 36,par. 3, of the ECHR, Application No. 69981/14,Rasul JAFAROV v. Azerbaijan, CommDH(2015)8, 30March 2015, para 27. https://goo.gl/xeLJJQ4. Third party intervention by the Council of EuropeCommissioner for Human Rights under Article 36,para. 3, of the ECHR, Application No. 69917/14,Leyla YUNUSOVA and Arif YUNUSOV v. Azerbaijan,CommDH(2015)10, 16 April 2015, para 32https://goo.gl/coELaE5. http://goo.gl/RpbBAs6. http://goo.gl/lWmqNvArmenia,amnesties, &internationalcrimesIs there a role for the EuropeanCourt of Human Rights?Dr Giulia Pecorella PhD, Middlesex UniversityOn 22 January 2015 Armenia had its secondUniversal Periodic Review (‘UPR’) beforethe UN Human Rights Council. 1 Among theactions recommended during its first UPR in2010 was ratification of the Rome Statute of theInternational Criminal Court (‘Rome Statute’),that Armenia had signed on 1 October 1999but not yet ratified. 2 To date the Governmenthas relied on a 2004 opinion of the ArmenianConstitutional Court (‘ACC’) as the basis for itsdelay in ratifying the Rome Statute. 3 This articleexamines how the case law of the EuropeanCourt of Human Rights (‘ECtHR’) arguably providesscope for the ACC to reverse its position.The judgment of the ACC on which the ArmenianGovernment relies provides that the RomeStatute cannot be ratified until the Constitutionis reviewed. Specifically, the judgment rulesthat in light of the Constitutional duty to protecthuman rights and freedoms (set out in Art. 3of the Armenian Constitution), Armenia cannotcreate a less favourable regime for individualsunder its jurisdiction who may be prosecutedbefore the International Criminal Court (‘ICC’). 4Indeed, according to the ACC, the ICC systemwould prevent an accused or a convictedperson from benefiting from an amnesty law ora pardon, whereas the Armenian Constitutionprovides for both these instruments. 5As a preliminary observation, it should be notedthat the Rome Statute is silent in relation toamnesties and pardons. Further, the questionof whether national laws providing for amnestieswould be in compliance with the RomeStatute is not yet settled. 6As to the potential role of the ECtHR in thiscontext, it should be remembered that at leastsome of the international crimes within thejurisdiction of the ICC also constitute seriousviolations of the same human rights that areprotected by the European Convention onHuman Rights (‘ECHR’). 7 With regard to suchcrimes, the state duty to protect human rightsand freedoms may be of particular relevance.While in its 2004 decision the ACC relied onthis obligation to rule against the compatibilityof the Rome Statute with the ArmenianConstitution, in the future it might consider anamnesty relating to some international crimesas being contrary to such a duty. 8In this context, the jurisprudence of theECtHR (which has acquired progressivelymore importance in the ACC’s case law) 9 mightplay a fundamental role. 10 In particular, inthe case of Marguš v Croatia (No. 4455/10)27/05/14 the Grand Chamber concluded that“granting amnesty in respect of the killing andill-treatment of civilians would run contrary tothe State’s obligations under Articles 2 and3 of the Convention since it would hamperthe investigation of such acts and necessarilylead to impunity for those responsible. Sucha result would diminish the purpose of theprotection guaranteed by under Articles 2and 3 of the Convention and render illusorythe guarantees in respect of an individual’sright to life and the right not to be ill-treated”(Marguš v Croatia, at 126). 11In light of the above principle, the ACC mightdeem an amnesty law to be contrary to theArmenian Constitution whenever it relates tocrimes which also constitute a violation of eitherArt. 2 or Art. 3 of the ECHR. In so doing, theACC may have scope to give a new interpretationof the “obligation to protect human rightsand freedoms assumed under [former] Article 4of the Constitution”, 12 this time characterisedby an impellent necessity to avoid impunity forgross human rights violations. In order to reachthis position, however, the ACC would need anamnesty law to be adopted.In summary, the jurisprudence of the ACCreflects the growing importance of the ECtHR’scase law in its reasoning. The ACC’s interpretationof the “obligation to protect human rightsand freedoms” could therefore be developedby the ECtHR’s case law. Accordingly, if giventhe opportunity, the ACC (following Marguš vCroatia) might determine that amnesties relatingto certain international crimes are contraryto the Armenian Constitution. In other words,the ECtHR’s jurisprudence provides scope forthe ACC to change its approach to amnestiesand, in doing so, to modify the position it tookin its 2004 opinion to which the Governmentcontinues to turn for justification of its failureto ratify the Rome Statute.Notes1. http://goo.gl/5O2BxC2. http://goo.gl/2X8TS63. http://goo.gl/SOO0Ob4. Armenian Constitutional Court, supra note 3.5. Ibid.6. See, e.g., Allan. K., 2011. Prosecution andPeace:A Role for Amnesty Before the ICC?. DenverJournal of International Law and Policy, 39, 239-301, 245. Roth-Arriaza, N. 2000. Amnesty andthe International Criminal Court in Shelton, D. ed,International Crimes, Peace, and Human Rights:The Role of the International Criminal Court. NewYork: Transnational Publishers. 77-82, 79.7. Human Rights Committee, General CommentNo. 31: The Nature of the General Legal ObligationImposed on States Parties to the Covenant (Art. 2),UN.Doc.CCPR/C/21/Rev.1/Add.13, para. 18 (26May 2004)8. Armenian Constitutional Court, supra note 1. Seearticle 100 (1) of the Armenian Constitution.9. See, e.g., The Case on Conformity of Article426.9, Part 1 of the RA Criminal Procedure Codeand Article 204.33, Part 1, Article 204.38 of theRA Civil Procedure Code with the Constitution of theRepublic of Armenia on the Basis of the Applicationsof the Citizens Aram Sargsyan, Karapet Rubinyan,Serine Fljyan, Irina Oganesova, Anna And AgnessaBaghdasaryan, Sveta Harutyunyan, Sergey Hakobyan,Gayane Kirakosyan And “Meltex” Llc, [2011] DCC-984. See also Ghazaryan, N., 2014. Legislative approximationand application of EU law in Armenia, inR. Petrov & P. Van Elsuwege‬, eds., 2014. LegislativeApproximation and Application of EU Law in the EasternNeighbourhood of the European Union: Towardsa Common Regulatory Space?.‬ Oxon: Routledge,2014, 191-214, 206.‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬10. As for pardons, it is unlikely that the ACC wouldrule against the conformity with the Constitution ofa Presidential order. However, according to Article95(4) of the Constitution, the Council of Justicemay express its opinion on issues of pardon at therequest of the President of the Republic. Importantly,according to Article 15(4) of the ArmenianJudicial Code, which applies to all national courtsbut the ACC, a reasoning of the ECtHR is bindingin the examination of a case with similar factualcircumstances.11. See also Cestaro v. Italy (No. 6884/11)7/04/15, at 208.12. Cf. Art. 3 of the current Armenian Constitution.EHRAC BULLETIN | SUMMER 20157


Business and human rights in RussiaRecent trendsEkaterina Aristova, PhD, LawyerIntroductionCorporations are responsible for many ofthe most serious violations of internationalhuman rights law. Despite this, there remainsignificant challenges in accommodatingcorporate accountability for human rightsabuses within existing legal regimes, andimplementing the UN Guiding Principles onBusiness and Human Rights (‘UN GuidingPrinciples’). Corporate legal accountability forhuman rights, the broader notion of corporatesocial responsibility (‘CSR’), and the practicalimpact of business on the promotion of humanrights, remain key issues for the Russian Federation.On the one hand, Russia is a relativelynew market economy that is still emergingfrom its Soviet past. On the other hand, ithas implemented legal reforms which favoura capitalist-style economy (for example, modernisingits civil and commercial laws in orderto improve the business environment, andworking to establish an International FinanceCentre in Moscow). What remains to be seen iswhether these reforms will be conducted onlywith a view to maximising profit, or whetherthey will also take into account communityinterests and the promotion of human rights.UN Guiding Principles on Businessand Human RightsThe UN Guiding Principles were endorsed byconsensus by the UN Human Rights Councilon 16 June 2011, and are widely recognisedas the most comprehensive current globalstandard for corporate accountability. 1 ThePrinciples are a non-binding initiative,produced as a result of the work of the UNSpecial Representative on Business andHuman Rights, John Ruggie. The Principleselaborate on the three pillars of the UN‘Protect, Respect and Remedy’ Framework:the state duty to protect against human rightsabuses by third parties, including businesses;the corporate responsibility to respect humanrights through diligent conduct; and effectiveaccess to judicial and non-judicial remediesby victims of human rights abuses.Jurisdictions including the United Statesand some European Union member stateshave started to incorporate elements of theUN Guiding Principles into their nationallegislation. 2 Unfortunately, the UN GuidingPrinciples have yet to receive such considerationin Russia. This contributes to the lackof clarity about the respective roles andresponsibility of Government and business inRussia with regard to the protection of andrespect for human rights.State duty to protect human rightsThere is still a great deal for the Governmentto do in putting the first pillar of theUN Guiding Principles into practice, andenforcing the State’s duty to protect andpromote human rights. The following shouldbe prioritised and form part of the businessand human rights agenda: careful analysis ofregulatory gaps regarding the protection ofhuman rights in business; clarification of thestandards and expectations for legal entities,and communication of the same to business;development of transparent reporting systems;regular human rights checks to reviewcompliance with human rights policies; andimproving access to effective dispute settlementbetween companies and communities,both in and out of court. Further, there is nosingle, cohesive strategy document or actionplan to enforce the UN Guiding Principles.Rather, to date there has been an inconsistentapproach to individual cases of human rightsabuses. For example, state-owned and privatecompanies were alleged to be involved in varioushuman rights abuses related to the 2014Winter Olympic Games in Sochi, includingthe alleged exploitation of workers engaged inthe construction of Olympic buildings; allegedevictions from the construction sites; and thealleged illegal dumping of construction wastethreatening residents’ health and safety. 3 Onlya few of the reported human rights abuseswere investigated.Nevertheless, there are some positive trendsin the implementation of the state duty toprotect human rights in this context. Forexample, the conflict between major oilcorporation LUKOIL and the indigenousKhanty people in northwestern Siberia. 4 In2011, the oil giant won the right to exploitthe area and announced the construction of aroad to facilitate further drilling of oil wells onsacred sites where Khanty ancestral pasturegrounds were located. 5 The construction of theroad would destroy the fragile reindeer mossecosystem, which is essential for the survivalof the Khanty people. In accordance withlegal procedures, the corporation was requiredto reach an agreement with the indigenouscommunity. 6 Following negotiations betweenthe company and Khanty representatives,disputes arose over the appropriate level ofcompensation payable to the community forthe destruction of the ecosystem. 7 LUKOILrequested support from the Russian Government,arguing that the Khanty’s demandswould increase social tension and destabilisethe local economy. 8 In 2014, with Governmentsupport not forthcoming (largely due to theunexpectedly strong position of the Khantycommunity, broad media coverage, and activists’support), LUKOIL had no alternative butto abandon the project. 9 This case became animportant precedent for upholding the rightsand interests of indigenous groups facingpressure from corporate interests in Russia.Corporate responsibility to respecthuman rightsThe second pillar of the Guiding Principles isthe corporate responsibility to protect humanrights. The concept of CSR, which arguablyunderpins the corporate responsibility torespect human rights, is still very new inRussia. Its development was stimulated bythe flow of inward foreign investment (in theform of, for example, joint ventures), and thelisting of Russian companies on foreign stockexchanges (which generally have high standardsof corporate governance). Although mostRussian companies have a basic understandingof CSR, there remain serious challengesthat threaten the recognition of, and adherenceto, the higher standard of the corporateresponsibility to respect human rights. Firstly,while several companies have joined anotherUN initiative, the Global Compact, the greatmajority of Russian companies are not familiarwith the norms of the UN Guiding Principles.Secondly, CSR is mainly considered as a toolfor improving a business’s reputation andmaintaining a positive social image, ratherthan a mechanism to ensure companiesavoid breaching human rights and addressthe adverse impact they may have. Codes ofconduct adopted by Russian companies rarelygo beyond the principles of the UN GlobalCompact, and often contain declarations thatare not supported by the implementationmechanism under the UN Global Compact.Many Russian companies still believe thatit is ‘unreasonable’ to allocate resources fordeveloping a strategy for cooperating withstakeholders from local communities, orensuring transparent and regular reportingsystems. Finally, the effectiveness of CSRinitiatives and the corporate responsibility torespect human rights is likely to be compromisedin Russia due to the voluntary natureEHRAC BULLETIN | SUMMER 20158


families, the Georgian public does not considerthis scenario to be “ideal”. 12 If finances allow,public perceptions indicate that it is better forwomen to stay at home or take “more appropriatework for a woman” if necessary. 13These attitudes are evidenced in recentlyreported cases of domestic violence in Georgia.For example, in one case a 35 year old man,Fridon Archvadze broke his ex-wife’s legsbecause he did not want her to go dancing;rather, he wanted her to stay at home and takecare of their child. During the trial, he claimed:“I have [sic] broken the legs of Sopo because Ididn’t want her to dance. It was not revenge. Iconsider this word to be absurd. I do not refusethe fact of being dangerous for Sopo. I havewarned her to take care of her kid and quitgoing to nightclubs. This is the reason I haveinjured her legs, I wanted her not to be able todance any more.” 14The UNDP research also echoes the findings ofprevious studies, which suggest that Georgia isstill a patriarchal country where men occupy adominant position, and women know that theyhave a subordinate role and make concessionsas a result of this. 15 Moreover, society demandsthat a woman tolerate her husband’s behaviourin order to preserve the family. 16Lela Gaprindashvili, a philosopher and memberof the Independent Group of Feminists, considersthat prevailing societal attitudes are asignificant reason for violence against womenin Georgia. 17 According to Ms Gaprindashvili,‘femicide’ and domestic violence are the resultof the belief that a woman’s life is less valuablethan that of a man. 18Public action and the State’sresponse to rising incidents ofdomestic violence in 2014In response to the State’s failure to preventdomestic violence, on 29 July 2014 women’srights activists and organizations working onwomen’s issues demonstrated in front of theMinistry of Internal Affairs and State Chancelleryof Georgia. 19 Further protests were held on25 November 2014. 20 The State has promisedto prioritise finding a solution for violenceagainst women, 21 and in November 2014 theMinistry of Internal Affairs started a campaignagainst violence against women throughout thecountry. 22 In January 2015, the President ofGeorgia declared 2015 as the year of womenin Georgia. 23Remaining challenges in combattingviolence against women in GeorgiaThe Government has said that it is trying toensure a comprehensive and versatile responseto ‘femicide’ and violence against women,including through: developing (further) andimplementing (existing) gender sensitivelegislation in this area; raising awareness ofviolence against women; supporting victims ofdomestic violence; and protecting women from‘femicide’, and when it fails to do so, effectivelyprosecuting perpetrators. 24 However, muchremains to be done to achieve these goals, andto effectively prevent and deter violence againstwomen in Georgia. In particular, it is importantto pay special attention to:• The availability and accessibility of protectionmechanisms for victims;• Stronger enforcement of the law;• Training for the police to ensure that theyare better equipped with the relevant skillsand tools to be able to identify and assessthe risks of domestic violence;• Training for prosecutors and judges onhandling domestic violence cases;• The promptness and effectiveness of thework of the Prosecutor’s office in investigatingreports of domestic violence;• The application by the courts of adequatesanctions for crimes where there is found tobe gender-based discrimination underlyingthe crime, including in cases of domesticviolence.Notes1. See, inter alia, http://goo.gl/CO409R andhttp://goo.gl/27EaDX2. http://goo.gl/SkDNRn (in Georgian)3. Ibid., Article 10.4. Ibid., Article 8 and Article 17.5. See http://goo.gl/56Xt8X and http://goo.gl/Jyd9616. http://goo.gl/bMBrt17. Ibid., p. 33. 3,872 household surveys werecompleted and a total of 3,768 women aged 15-49were identified. 2,621 women were selected by theKish method of “one woman per household”. 2,391interviews were completed (p. 25).8. Ibid.9. AVNG’s survey was conducted within a two yearproject on “Developing Georgia’s AdministrativePossibilities”, in which 2,401 respondents tookpart. (http://goo.gl/MYSEub p. 13)10. http://goo.gl/1wUAyB11. Ibid., p. 4.12. Ibid.13. Ibid.14. http://goo.gl/afpMMm 17 October 201415. http://goo.gl/1wUAyB p. 4.16. Ibid., p. 5.17. http://goo.gl/tzbhKs (in Georgian)18. Ibid.19. Ibid.20. See http://goo.gl/EjVVPl, and http://goo.gl/ekWlj321. http://goo.gl/5hKVvV22. http://goo.gl/WyzePw23. http://goo.gl/y9avNv24. http://goo.gl/Hiaqt1The Voiceof BeslanAn InterviewElla Kesayeva, Voice of BeslanBeth Saffer and Marina van Riel, EHRACOn 14 October 2014, the European Courtof Human Rights (‘ECtHR’) held a Chamberhearing in the case of Tagayeva and others v.Russia (No. 26562/07). The case concernsthe siege which occurred between 1 and 3Almost ten years tothe day since theterrorist attack inwhich 334 people,including 186children, werekilled, 447 formerhostages andrelatives of thosewho died broughttheir cases to theEuropean Court.September 2004 at School No. 1 in Beslan,North Ossetia. The hearing took place nearlyten years to the day after the terrorist attackin which 334 people (and 186 children) werekilled. 447 former hostages and relatives ofthose who died brought their cases to theECtHR, arguing inter alia, that the Governmentfailed to take reasonable measures toprevent the attack; that the control and planningof the rescue operation was inadequate;and that, as a consequence, the deaths in theschool were the result of a disproportionateuse of force by the authorities and insufficientresources were provided to prevent the lossof life from fire. They also alleged the lackof an effective investigation into the events.EHRAC and Memorial Human Rights Centrerepresented 346 of the applicants before theECtHR and presented arguments at the Chamberhearing, which was attended by 14 of theapplicants. This interview with Ella Kesayeva 1was conducted by Beth Saffer and Marina vanRiel of EHRAC before the hearing.EHRAC BULLETIN | SUMMER 201510


Can you tell us about your search forjustice within Russia, before youapplied to the ECtHR?In 2005, the journalist Anna Politkovskayatold us that we would get nowhere in Russia,and we should go to Strasbourg. It seemedstrange that the domestic courts wouldnot accept the facts of the case. I mean,everybody saw the school under attack withtheir own eyes, and there was hope that allthat would be acknowledged. However, wewere oppressed and forced to remain silent.Even so, going to court became our job. Theyears went by. I didn’t work for 5 years, Iwent to court instead. Finally, in 2007 Iapplied to Strasbourg.What are the implications for you,and civil society more generally, ofyour case being heard by the ECtHR?Beslan concerns everybody. The same criminalmethods were employed in Chechnya. Ifwe had put up some opposition then, maybeBeslan wouldn’t have happened. The deadcan never come back, but we can be strongand talk openly about what happened, so thatBeslan will be the last attack of its kind.Going tocourt becameour job. Theyears went by.I didn’t workfor 5 years, Iwent to courtinstead.What are you hoping for from theECtHR, and what do you think theconsequences will be in Russia?We are not expecting much, as Russianever reacts to the ECtHR’s decisions, apartfrom paying compensation. We do not needcompensation, we need the decision. Ourchildren will never return. Beslan remainsunresolved and our future is uncertain. Ifonly the government had pleaded guilty, butRussia will never do that. We do not expectcriminal proceedings, as it is an internationalcourt. If the materials we submitted areenough, we expect the decision to be in ourfavour. We were told that we would findjustice in Strasbourg. This is our only hope.It comforts us that there is a place whereeverything is done by the rule of law, andwhere our evidence will be considered whenthe decision is made. A place where peopleknow that Beslan is not only our problemand that it is important for everybody. Thecrime should be recognised as a crime. Notjust by journalists, but by an official body.The journalist [Elena] Milashina recognisedthe government’s culpability in her articles,which is dangerous in Russia. She was evenattacked. We want legal acknowledgementfrom the ECtHR. [The Russian Government]say that we lost our mind from grief. We awaitan independent judicial decision.Could you please comment on thecurrent situation with human rightsin Russia?There are no human rights in Russia! It’s justa sham, presented only in writing for the benefitof the international community. Beforeentering the world stage, the governmentshould respect its own people. Beslan is aprime example. If we had rights, we wouldn’thave to go to Strasbourg. Our children didn’teven have the right to life.What do you think about the fact thatsome member states of the Council ofEurope want to withdraw from theEuropean Convention on HumanRights (‘ECHR’)?No! Strasbourg is a benchmark of justice; itis body that should be an example for everybody.Maybe in the UK, the courts functioncorrectly but in Russia it is not the case; weneed something to aspire to. Furthermore,the document [the ECHR] was signed and thelaw was adopted. So the law should be followedand applied; whether you like it or not;whether it is good or bad. If it is adopted, oneshould follow it (although in Russia recentlymany inadequate laws were adopted, such asthe Foreign Agent Law); otherwise chaos willfollow. One must obey the law.In order to prevent the rise of corruption,it is important that another country takesa decision. So that [the government] wouldunderstand that they were wrong and unfair.Somebody unbiased from the outside mustdo that, because Putin won’t punish himself.There must be an international courtin these cases.We could not find justice in our country;this proves again that there is a necessityfor such a Court. Because there wasBeslan, and not one person has beenfound responsible.If a country like the UK withdrawsfrom the ECHR, what effect would ithave on Russian politics?A very negative one! For our government it willbe an excuse to say, ‘We don’t want it either!’They have to understand that we are all in thesame boat and have an impact on one another.We all live in the same world.It is hard tooverestimate thesignificance ofthe ECtHR for theRussian people.It is the only wayof deterringlawlessness.If they don’t want to be taken before the Court,then they should make sure they prosecute theright people, so that their citizens won’t needto apply to the Court. Adhere to justice andthere will be no problem.If the UK opts out of the ECHR, Putin wouldimmediately hold it up as an example! It wouldbe a catastrophe.The UK should not think only of itself, becausethis will lead to other countries completelydisregarding the rule of law. As the UK is acountry of many nationalities, if some accidentor war takes place in one place, its effect isfelt in other places. If there were no ECtHR,then where else could we go to seek justice?There is no other place! As long as the UKdoesn’t shoot its own people, [the government]has nothing to be afraid of.Our courts are unbearable. They gave us somuch stress, some of our men died of heartattacks, and didn’t live to see this moment.This is our only hope.It is hard to overestimate the significance ofthe ECtHR for the Russian people. It is theonly way of deterring lawlessness.Notes1. Mrs. Ella Kesayeva, whose four family memberswere held hostage during the siege, chairs Voice ofBeslan, a grassroots NGO.EHRAC BULLETIN | SUMMER 201511


Recent EHRAC human rights casesAmerkhanova vRussiaECHR: JudgmentRight to life(No. 4560/08), 9/10/14FactsThe case was part of a group judgment witheleven others (see Sultygov and Others vRussia (No. 42575/07, 53679/07, 311/08,424/08, 3375/08, 4560/08, 35569/08,62220/10, 3222/11, 22257/11, 24744/11and 36897/11)). The applicants in each casealleged that State servicemen in Chechnyaand Ingushetia had abducted their relativeson various dates between 2000 and 2005,and that no effective investigation into theseevents had taken place. The applicants inAmerkhanova were represented by EHRACand Memorial Human Rights Centre.On the evening of 3 November 2002, theapplicant’s son, Rustam Amerkhanov, lefthome to visit a friend. Rustam failed to returnhome that evening, and has not been seensince. On 4 November 2002, the applicantdiscovered that her son had been detainedby State servicemen during the night of3 November 2002 before allegedly beingreleased the following day.On 12 November 2002, the district prosecutor’soffice opened a criminal case underArticle 105 of the Criminal Code (murder).The case was suspended on 12 January 2003for failure to identify the perpetrators. Theinvestigation was resumed and suspended afurther three times between 25 September2003 and 26 July 2004 without the applicant’sknowledge, and is still pending.JudgmentThe ECtHR held that there had been both asubstantive and procedural violation of Art.2 ECHR. The applicant had presented aprima facie case that her son was abductedby State agents and that his death could beattributed to the Government (which hadfailed to discharge its burden of proof in thisregard). The ECtHR further held that theauthorities had failed to carry out an effectivecriminal investigation into the circumstancesof Rustam’s disappearance, and noted thatthe investigation shared many of the defectsidentified by the ECtHR in Aslakhanova andOthers v Russia (No. 2944/06) 18/12/12.In relation to Art. 3 ECHR, the ECtHR heldthat the applicant had suffered distress andanguish as a result of her son’s disappearanceand her inability to find out what happened tohim. Further, the manner in which her complaintshave been dealt with by the authoritiesconstituted inhuman treatment.The ECtHR held that there had been a “particularlygrave” violation of Art. 5 ECHR giventhat the applicant’s son had been held in unacknowledgeddetention which was not logged inany custody records, leaving no official trace ofhis subsequent whereabouts or fate.The ECtHR reiterated its findings concerningthe ineffectiveness of criminal investigations incases concerning disappearances in the NorthCaucasus, and found that the absence of resultsin this case meant that any possible remediesbecame inaccessible in practice. There wastherefore a violation of Art. 13 ECHR.The applicant was awarded €60,000 in nonpecuniarydamages.Amerkhanova vRussia affirmsthe EuropeanCourt’s approachto the particularsuffering ofrelatives of thedisappeared, whichcan in its own rightconstitute inhumantreatment.CommentThe case joins a long line of other ECtHR judgmentson the ‘systemic’ failure of the Russianauthorities to inter alia, investigate enforceddisappearances in the North Caucasus (seealso Aslakhanova and Others v Russia). Thecase also affirms the ECtHR’s approach to theparticular suffering of relatives of the disappeared,which can in its own right constituteinhuman treatment.Albakova vRussiaECHR: JudgmentRight to life(No. 69842/10), 15/01/15FactsOn 10 July 2009, Batyr Albakov was abductedfollowing a passport check at his home inIngushetia by armed men speaking Chechen,Russian and Ingush. On 21 July 2009, hismother, the applicant, discovered on the internetthat he had been shot dead by Russianservicemen during a counter-terror operation.When her son’s body was returned, it showedevidence of multiple injuries including gunshotand stab wounds, fractures, burns, anda partially severed arm.Between 10 July 2009 and 24 September2009, the applicant made two requestsfor a criminal investigation into the disappearanceand unlawful killing of her son. Inthe interim, the district prosecutor’s officeopened a criminal investigation into herson’s alleged involvement with an illegalarmed group and in the killing of a Stateagent. On 24 September 2009, the applicantwas notified that her application had beenadded to the aforementioned investigation,but no criminal proceedings were everbrought. Between December 2009 and May2010, the applicant unsuccessfully challengedthe investigator’s refusal to initiatecriminal proceedings. On 14 May 2012, thecriminal investigation into the circumstancessurrounding Batyr Albakov’s death was reopened,and concluded shortly thereafterthat he died in an exchange of gunfirebetween Russian servicemen and an illegalarmed group.The applicant was represented by EHRACand Memorial Human Rights Centre.JudgmentIn light of the lack of evidence ‘beyondreasonable doubt’ that the Russian securityforces were implicated in the abduction anddetention of Batyr Albakov, and given that theparties did not dispute that he was killed bythe Russian military, the ECtHR’s role was todetermine whether the use of force againstBatyr Albakov on 21 July 2009 was lawfulunder Art.2 ECHR.EHRAC BULLETIN | SUMMER 201512


The ECtHR found a substantive violation ofArt. 2 on the basis that the authorities had notshown that they did all that could be reasonablyexpected of them to avoid the real andimmediate risk to life which they knew waslikely to arise in the course of the events on21 July 2009. Further, the ECtHR found thatthe investigation by the authorities was neitherthorough nor effective, resulting in a violationof the procedural limb of Art. 2.The applicant was awarded €60,000 in nonpecuniarydamages.CommentDespite the Russian government’s acknowledgementthat State agents were responsiblefor the death of Batyr Albakov, the ECtHR dismissedthe applicant’s claims that the sameagents were responsible for the precedingabduction and alleged detention and tortureof her son (in violation of Art. 3 and 5 ECHR)due to a lack of evidence. Although the ECtHRhas previously found the State responsiblefor extra-judicial executions and disappearancesin the North Caucasus (see, amongstothers, Khashiyev and Akayeva v Russia (No.57942/00 and 57945/00) 24/02/05), in thisinstance the applicant did not make out aprima facie case of abduction by servicemen.Makayeva vRussiaECHR: JudgmentRight to Life(No.37287/09), 18/09/14FactsThe case concerned the disappearance of theapplicant’s son, Apti Zaynalov, who had previouslybeen convicted of belonging to an illegalarmed group, but had later been released fromdetention. The applicant was represented byEHRAC and Memorial Human Rights Centre.On 25 June 2009, Mr Zaynalov travelledfrom Saratov to Grozny by train. He took ataxi from Grozny railway station, and duringthe journey was apprehended by an armedman and driven away. On 2 July 2009, theapplicant was informed that an unknownperson (likely her son), whose body exhibitedsigns of torture, had been placed under armedguard in Achkhoy-Martan Hospital. On 4 July2009, the applicant visited the hospital (withMemorial staff member Natalia Estemirova,who was murdered shortly thereafter on 15July 2009). On 7 July 2009, the applicantlodged a complaint with the local prosecutor’soffice. A few hours later she returnedto the hospital and witnessed her son beingdriven away by servicemen. She has not seenhim since. A criminal investigation into AptiZaynalov’s disappearance was opened on 28July 2009 and remains pending.JudgmentThe ECtHR found three separate violations ofArt. 2 ECHR. Firstly, there was a breach ofthe substantive obligation under Art. 2 on thebasis that Mr Zaynalov could be presumed tobe dead. He was last seen in the hands of Stateagents at the Hospital on 7 July 2009, andthere was no plausible explanation as to his fateafter that date. Further, his unacknowledgeddetention was considered life-threatening. Inthese circumstances, and absent any relianceon the exceptions to the right to life, the Statewas found to be responsible for Mr Zaynalov’spresumed death. Secondly, the ECtHR founda violation of the positive obligation to protectthe right to life. Citing the various actions thatcould have been taken by the authorities whenthey became aware of a real and immediatethreat to Mr Zaynalov’s life (including evidencegathering and inspection of the premisesMr Zaynalov lastseen in the hands ofState agents at theHospital on 7 July2009, and there wasno plausible explanationas to his fateafter that date.where he was last seen), the ECtHR concludedthat the authorities failed to demonstrate anurgent and appropriate reaction. The ECtHRparticularly noted that the internal inquirycarried out by the Chechnya Prosecutor’sOffice found the actions of the acting districtprosecutor and his deputy to be inadequateand concluded that his behaviour “had facilitatedthe kidnapping of [Mr Apti Zaynalov]from Achkhoy-Martan Hospital”. Thirdly, theECtHR found a violation of the procedural limbof Art. 2 on account of the failure to effectivelyinvestigate Mr Zaynalov’s presumed death. TheECtHR pointed to the delay in opening theinvestigation (which resulted in the loss ofcrucial perishable evidence), and the lack ofany official response to Mr Zaynalov’s admission(as an anonymous patient with gunshotwounds) to, and removal (under armed guard)from, a municipal institution.The ECtHR also established that the applicant’srights under Art. 3 ECHR had been violated, onaccount of the distress and anguish which shecontinued to suffer as a result of her inabilityto ascertain her son’s fate, and the way inwhich her complaints were dealt with. Further,as Mr Zaynalov was detained by State agentswithout legal grounds or acknowledgment,there was a violation of Art. 5 ECHR. In light ofthe ineffective criminal investigation, and thelack of other accessible domestic remedies,the State had failed to fulfil its obligation toprovide an effective remedy under Art. 13ECHR. The applicant was awarded €60,000in non-pecuniary damages.Islam-IttihadAssociation andOthers vAzerbaijanECHR: JudgmentFreedom of association(No. 5548/05), 13/11/14FactsThe Islam-Ittihad Association was an AzerbaijaniNGO active between 1991 and 2003and was involved in, inter alia, the repair andmaintenance of several mosques, projectsaimed at promoting respect for human rightsand building a civil society, humanitarian work,and programmes focused on promoting tolerancebetween different religions in Azerbaijan.In 2002 the Ministry of Justice issued threewarnings to the Association, stating that pursuantto domestic law, NGOs must refrain fromengaging in “religious activities”. The Associationmaintained that Azerbaijani legislationdid not provide any definition of “religiousactivities”, and that the Ministry had failed tospecify which of its activities were deemed tobe ‘religious’. In 2003, following an applicationlodged by the Ministry of Justice, a domesticcourt ordered the Association’s dissolution (adecision which was upheld by both the Courtof Appeal and the Supreme Court).The applicants were represented by ProfessorBill Bowring, with the assistance of EHRAC.JudgmentAfter its dissolution, the Association’s representativesfiled a complaint with the ECtHRalleging violations of the rights to freedom ofEHRAC BULLETIN | SUMMER 201513


assembly and association (Art. 11 ECHR),and expression (Art. 10 ECHR). The ECtHRdetermined that the case fell to be examinedunder Art. 11 only, and found that althoughthe Association’s dissolution had a basis indomestic law, the State failed to give anydefinition of “religious activity”. The ECtHRalso noted that the Ministry of Justice andthe domestic courts failed to specify thereligious activities in which the Associationhad allegedly engaged. The lack of legaldefinition prevented the applicants fromunderstanding what constituted “religiousactivity”, which in turn hindered theircompliance with domestic law. Thus, theECtHR deemed that the State was givenunlimited discretionary powers in this regard,contrary to the requirement of foreseeabilityprescribed by Art. 11. This constituted anunjustified interference with the applicants’rights and a violation of Art. 11.The ECtHR awarded the applicants €4,000 innon-pecuniary damages.CommentThis judgment coincides with an unprecedentedlevel of repression of activists andhuman rights defenders, many of whom havebeen arrested and detained on charges arisingfrom their work with and within NGOs. Thetargeting of individuals has been accompaniedby restrictive amendments to the laws on theoperation of NGOs in Azerbaijan. The ECtHRhas acknowledged the importance of NGOsin ensuring democracy and pluralism andreiterated the importance of associations inconveying the participation of citizens in thedemocratic process (see, for example, Gorzelikv Poland (No. 44158/98) 17/2/04). This caseis not the first in which Azerbaijan has beenfound to have violated the right to freedom ofassociation by dissolving an NGO, or wherethe applicable NGO law was criticised for itsvague provisions (see Tebieti v Azerbaijan (No.37083/03) 8/10/09). The judgment sends aclear message that Azerbaijan is obliged torespect freedom of association, which is crucialfor the healthy functioning of civil society,democracy and the rule of law.Recent Non-EHRAC human rights casesShvydka vUkraineECHR: JudgmentFreedom of expression(No. 17888/12), 30/10/14FactsAt a Ukrainian Independence Day ceremony in2011, the Ukrainian President Yanukovych laida wreath at a monument to a famous Ukrainianpoet and public figure. The applicant wastaking part in a public gathering, organisedby the opposition party, Batkivshchyna. Sheremoved the wreath’s ribbon containing thewords “the President of Ukraine V.F. Yanukovych”,because she believed he should nothold this position. A police officer filmed heraction and reported it to his superiors.The applicant was taken to a district policestation and charged with “petty hooliganism”.She was not allowed to see a lawyer,and refused to sign the police report. She wasconvicted and sentenced to 10 days’ administrativedetention. Her appeal was denied aftershe had served her sentence.DecisionThe ECtHR confirmed that in removing theribbon the applicant had sought to conveycertain ideas regarding the President to thepeople around her; an act which could beregarded as a form of political expression. Theapplicant’s detention therefore amounted toan interference with her right to freedom ofexpression. In considering the proportionalityof the interference, the ECtHR took note ofthe applicant’s age (63), the absence of anyprior criminal record, and the fact that she wasgiven the harshest available sanction for anadministrative offence. It also noted that hersentence was explicitly based on her refusalto change her political views. The ECtHRfound that the applicant’s detention was adisproportionate interference with her right tofreedom of expression under Art. 10 ECHR.The applicant also argued that the delay inexamining her appeal meant its outcome wasmeaningless. States Parties to the ECHR havea wide margin of appreciation in deciding howto run their appeal system, but any restrictionson the right to appeal must not threaten theessence of the access to courts principle.When the applicant appealed against hersentence, her detention was not suspended.Therefore, the upper court’s decision could notcure any trial defects. Receiving compensationpost-appeal for wrongful detention would notbe an acceptable remedy, given that ECHRrights must have practical effect. Ukrainehad also therefore violated her right of appealunder Protocol No. 7, Art. 2 ECHR.CommentThe ECtHR has previously dealt with actsof political expression under Article 10.For example, in Murat Vural v Turkey (No.9540/07) 21/10/14 and Tatár and Fáberv Hungary (No. 26005/08 and 26160/08)12/06/12, the Court found that the measuresadopted by the State against acts ofpolitical expression were not necessary in ademocratic society, or were not proportionateto the legitimate aim pursued. In Tatár andFáber v Hungary the ECtHR also focusedon the chilling effect that sanctions wouldhave on public speech. It is noteworthy thatthis consideration has not been made inthe present case because the decision wasexclusively based on a proportionality test.However, Judge de Gaetano dissented inconsidering that the interference with theapplicant’s freedom of expression failed tomeet the first test of Article 10. The interferencewas not “prescribed by law” and thusit was not necessary to consider whetherthe interference was “proportionate to thelegitimate aim pursued” or “necessary in ademocratic society”.MalikaYusupova andOthers v RussiaECHR: JudgmentRight to life(No. 14705/09, 4386/10, 67305/10,68860/10 and 70695/10), 15/01/15FactsThe applicants are close relatives of six menwho disappeared, having been unlawfullydetained by Russian servicemen during specialoperations in Chechnya between 2001 and2002. The cases were joined by the ECtHR.The applicants complained of the authorities’failure to carry out effective investigations intothese disappearances. In particular, althoughcriminal investigations were commenced, theproceedings were repeatedly suspended andresumed, and remained pending for severalyears without achieving any tangible results.The Government did not challenge the applicants’allegations, but maintained that therewas no evidence to prove beyond reasonabledoubt that State agents had been involved inthe incidents or that the applicants’ relativeswere in fact dead.EHRAC BULLETIN | SUMMER 201514


JudgmentThe ECtHR found that the applicants’ relativescould be presumed dead following theirunacknowledged detention by unidentifiedState agents. It was accepted by the ECtHRthat the applicants had made out a prima faciecase of the abduction of their relatives and haddemonstrated that they fell under the control ofthe authorities. Absent any justification from theState as to the circumstances of the disappearancesof the applicants’ relatives, their deathswere held to be attributable to the State. Thisresulted in a violation of the substantive limbof Art. 2 ECHR. Citing its findings in previouscases on the ineffectiveness of criminal investigationsinto disappearances which occurred inChechnya between 1999 and 2006, the ECtHRfound a procedural violation of Art. 2 in respectof the State’s failure to effectively investigatethe disappearances of the applicants’ relatives.In particular, the ECtHR emphasised that theinvestigations were plagued by the same defectsas had been identified in the case of Aslakhanovaand Others v Russia (No. 2944/06) 18/12/12.Further, the ECtHR found a violation of Art. 3ECHR on the basis of the applicants’ distressand anguish, which they continued to sufferas a result of their inability to ascertain thefate of their close relatives, and given theway in which their complaints were handledby the authorities. A violation of Art. 5 ECHRwas found in respect of the unlawful detentionof the applicants’ relatives, which the ECtHRconsidered as “unacknowledged detention”,constituting a particularly grave violation ofArt. 5. Finally, a violation of Art. 13 ECHR wasfound in conjunction with Art. 2 and 3, due tothe applicants’ lack of an effective domesticremedy. The ECtHR awarded €60,000 in nonpecuniarydamages in respect of each familymember who was disappeared.Navalnyy andYashin v RussiaECHR: JudgmentFreedom of assembly(No. 76204/11), 04/12/14FactsOn 5 December 2011 the applicants, MrNavalnyy and Mr Yashin (well-known politicalactivists and anti-corruption campaigners),were arrested for failing to obey a policeorder to stop a spontaneous march held afterparticipating in an authorised demonstrationagainst the outcome of the Russianparliamentary elections (which had takenplace the day before). During the first sixhours following their arrest both applicants,denied any food or drink, were driven to threedifferent police stations at which they weresubjected to a search and seizure of personalproperty. Despite repeated requests and thelodging of a complaint, the applicants wererefused access to a lawyer until shortly beforethe commencement of administrative proceedingson 6 December 2011. Both were foundguilty of having disobeyed a lawful order of thepolice to stop the spontaneous ‘march’ andfollow the police officers to their bus to drawup a report. They were sentenced to 15 days’administrative detention and their appealswere dismissed.JudgmentThe ECtHR found violations of Art. 3, 5(1), 6(1),11 and 13 ECHR in respect of both applicants.With regard to the violation of Art. 11, theECtHR concluded that the measures taken bythe authorities were not justified by a pressingsocial need and therefore not necessary in ademocratic society. Regarding Art. 6, the ECtHRfound that the courts failed to ensure that theprosecution had proved its case, and omitted toconsider the lawfulness of the orders allegedlygiven by the police, contrary to the principleof equality of arms. As for Art. 5, the ECtHRfound that the applicants’ arrest and detentionwere unlawful and arbitrary. In particular, theunjustified escorting to the police station, theunrecorded and unacknowledged six hour detentionin transit between police stations, and thelack of reasons for remanding them in custodyuntil the court hearing, constituted breachesof the applicants’ right to liberty. Further, theECtHR concluded that the applicants did nothave an effective domestic remedy for theircomplaints about the transit time and the conditionsof their detention, in breach of Art. 13.The cumulative effect of the conditions in whichthe applicants were held (including the denial offood and water and the inadequate state of thepolice cell) constituted inhuman and degradingtreatment, thereby breaching Art. 3.CommentThis case is one of many lodged with theECtHR arising from large-scale public protestsin 2011/2012 largely held in response to theallegedly fraudulent elections which returnedPutin and the United Russia party to power inMay 2012. The protests are also perceived bymany as marking the start of the crackdownon civil society unleashed by the Governmentin 2012 and continuing to date. In this judgment,the ECtHR highlighted, inter alia, thatthe “chilling effect” of the disproportionatesanctions imposed on the applicant was magnifiedby the fact that they had been targeted asespecially well-known public figures.Razzakov vRussiaECHR: JudgmentProhibition of torture(No. 57519/09), 05/02/15FactsOn 26 April 2009 Rashid Razzakov, a migrantworker in Voronezh, arrived at a meetingplace as arranged by his employer (who wasacting on police instructions). On arrival, threeuniformed police officers knocked him to theground, handcuffed him and took him in anunmarked car to the police headquarters wherethey demanded that he confess to a murder.He was subjected to severe physical violence(including being punched, hit on the head witha glass bottle, undressed, tied up and hung inpainful positions from a metal bar and a door,head down and naked) over a period of twodays until he confessed and signed a paperin Russian which he could not read. He wasthen released without charge and no criminalproceedings were brought against him.On 8 September 2009, a criminal investigationinto the applicant’s allegations ofill-treatment was commenced, only to besuspended and reopened several times(including for failure to identify the allegedperpetrators). In civil proceedings for damagesin respect of the applicant’s ill-treatment, thecourts established that the applicant had beensubjected to unlawful physical violence bypolice officers.JudgmentThe ECtHR found that the ill-treatmentsuffered by the applicant over a prolongedperiod of time, for the specific purpose ofmaking him signed a false confession,constituted torture and a violation of Art.3 ECHR. The ECtHR also found a violationof the procedural limb of Art. 3 given theauthorities’ significant delay in commencinga criminal investigation into the applicant’scredible allegations of serious ill-treatmentby the police, and the manner in which theinvestigation was conducted thereafter.The applicant’s claim of a breach of his rightsunder Art. 5(1) ECHR was rejected by theECtHR on the basis that the domestic court’saward of damages for his unlawful detentionconstituted “appropriate and sufficientredress”; hence he could no longer claim tobe a victim of a violation of Art. 5(1) in thiscontext. The ECtHR awarded the applicant€20,000 in non-pecuniary damages.EHRAC BULLETIN | SUMMER 201515


About EHRACEHRAC is an independent apolitical organisation that stands alongsidevictims of human rights abuse in order to secure justice. Working in supportof civil society organisations, we bring strategic cases to the European Courtto challenge impunity for human rights violations. We raise awareness of violationsand means of redress for victims. Each judgment we secure contributesto an objective account of human rights abuse that cannot be refuted.EHRAC PartnershipsEHRAC works in partnership with many NGOs, lawyers and individuals in Russia,the South Caucasus and Ukraine. Our work focuses on mentoring joint projectlawyers to develop their professional skills and independence as litigators. Tofind out more about the organisations we work with, and how we work in partnership,visit http://www.ehrac.org.uk/about-us/our-team/our-partner-organisations/Call for new partnersEHRAC is seeking to develop partnerships with new organisations in the countrieswe work in. If you are litigating at the European Court and would liketo discuss potential collaboration opportunities with EHRAC, please contactehrac@mdx.ac.uk in English, Russian or Armenian.Internship OpportunitiesEHRAC has in-house internship placements available throughout the year. Tofind out about the type of work our interns do, what opportunities are currentlyavailable and how to apply, please visit www.ehrac.org.uk/about-us/jobs-listing/This publication of this Bulletin has been achieved with the assistance of theEuropean Union. The contents of this publication are the sole responsibilities ofEHRAC and can in no way be taken to reflect the views of the European Union.16 EHRAC BULLETIN | SUMMER 2015ContributionsEHRAC would like to thank the following people for their contributions:Eliso Amirejibi, Ekaterina Aristova, Lucy Buckland, Salome Chagelishvili,Dario Rossi D’Ambrosio, Sarah Enright, Craig Hatcher, Eleanor Healy-Birt,Luke Hodgkin, Ella Kesaeva, Alex Nelia, Giulia Pecorella, Ramute Remezaite,Violetta Rusheva and Judge Oleksandr Volkov.This Bulletin was produced by EHRAC designed by Gerbil Tea and translatedinto Russian by Tatiana Hansbury.The EHRAC Bulletin is published biannually. We welcome contributions ofarticles, information or ideas. Please write to EHRAC by email to propose anarticle. Material in the Bulletin can be reproduced without prior permission.However, we would request that acknowledgment is given to EHRAC in anysubsequent publication and a copy sent to us.DonationsEHRAC relies entirely on grants and charitable donations. If you would like tosupport our work with a donation of any size, please make a cheque payableto Middlesex University (EHRAC), and send it to the address below. Thank youfor your support.Contact UsEHRAC, School of Law, Middlesex University,The Burroughs, Hendon, London, NW4 4BTTel: +44 (0) 208 411 2826Fax: +44 (0)203 004 1767ehrac@mdx.ac.ukwww.ehrac.org.ukPrinted on 100% recycled paper

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