NGO calls on ECtHR to intervene in military commissions case of Al Nashiri

The Open Society Justice Initiative is calling on the European Court of Human Rights to intervene urgently in the first death penalty case to be tried by US military commissions at Guantánamo Bay, Cuba, involving Abd al-Rahim al-Nashiri.

In an application to the Court, OSI argues that Poland violated al-Nashiri’s rights under articles 2, 3 and 6 of the ECHR by enabling al-Nashiri’s incommunicado detention and torture on Polish soil and his transfer out of the country, and that the President of the Court should exercise his power to grant interim relief under Rule 39 by indicating to the Government of Poland that it should immediately use all available means at its disposal to ensure that Al Nashiri is not subjected to the death penalty.

These means include but are not limited to: (i) making written submissions before 30 June 2011 to Bruce MacDonald, the Convening Authority for Military Commissions, to ensure that he does not approve the death penalty for Mr. al Nashiri‘s case; (ii) obtaining diplomatic assurances from the United States Government that it will not subject Mr. al Nashiri to the death penalty; (iii) taking all possible steps to establish contact with Mr. al Nashiri in Guantánamo Bay, including by sending delegates to meet with him to monitor his treatment and ensure that the status quo is preserved in his case; and (iv) retaining and bearing the costs of lawyers authorised and admitted to practice in relevant jurisdictions in order to take all necessary action to protect Mr. al Nashiri‘s rights while in U.S. custody including in military, criminal or other proceedings involving his case.

Bruce MacDonald, the Convening Authority for U.S. military commissions, has said he will consider written submissions against the death penalty until June 30, 2011, following which he will make a decision on whether to approve capital charges and refer them for trial to a military commission.

On 20 April 2011, United States military commissions prosecutors brought charges against Mr. al Nashiri relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.

Turkey Frees 23 Suspected Militants

The NYT reports that more than 20 suspected militants, including members of an extreme Islamist organization, were released from Turkish jails on Tuesday after a Supreme Court of Appeals ruling that limits to 10 years the time detainees can be held without being sentenced. The practice of jailing detainees indefinitely without sentences has long disturbed human rights advocates, who were only slightly mollified by the court ruling. They say the 10-year limit, which was based on a recent amendment to the Turkish criminal code, does not go far enough in securing detainees’ rights.

“There are numerous verdicts by the European Human Rights Court that limit imprisonment of detainees to reasonable terms,” said Suheyl Donay, a criminal law professor at Istanbul University. “This term is often not more than two years, so this ruling is a wrong one.”

The released detainees will not be able to leave the country and must report to the local police on a regular basis. Nevertheless, the prisoner releases and the prospect of many more to come — the Turkish news media have reported that more than 50,000 have applied for review of their cases — have raised concerns.

El-Masri Case against Macedonia Moves Forward at European Court of Human Rights

Macedonia has become the first government called to account for its collaboration with the CIA’s extraordinary rendition program before an international tribunal. The case, brought by the Open Society Justice Initiative on behalf of German citizen Khaled El-Masri, was communicated to the Macedonian government by the European Court of Human Rights on October 8. The communication is a major step forward, as only about ten percent of all cases brought before the European Court make it to this phase. Next, Macedonia will need to answer specific questions posed by the court about its alleged role in the rendition program. The court has also invited Germany to submit comments.

ECtHR: recent decisions on violation of art. 3 arising from expulsion/deportation

The European Court of Human Rights (ECtHR) has recently delivered two judgments concerning the violation of article 3 arising from the risk of ill-treatment of the claimants, if returned to their country of origin.

The first case, A. v. The Netherlands, originated in an application filed by a Libyan national, Mr A., in which he claimed that his expulsion to Libya, following an exclusion order imposed on him, would violate his rights under Article 3. A. entered The Netherlands in 1997 and applied, unsuccessfully, for asylum as he feared persecution, imprisonment, and possibly execution, in Libya for his involvement since 1988 in a clandestine opposition group. In 2002 he was arrested on suspicion of belonging to a group conducting jihad against the Netherlands, but eventually acquitted. In 2005 an exclusion order was imposed on him, as he was found to represent a danger to national security. A. claimed that his expulsion to Libya would expose him to the risk of ill treatment not only because of his involvement in the opposition group, but also because of the criminal proceedings taken against him in The Netherlands. Despite being eventually acquitted, his case had been broadly covered in the media and the Libyan authorities had been informed that he had been placed in aliens’ detention for removal purposes.

The Governments of Lithuania, Portugal, Slovakia and the United Kingdom suggested that, where a State presents evidence that an individual is a threat to national security, it should be up to the individual to prove that it is “more likely than not” that he would suffer a violation of Article 3. In addition, these Governments criticized the approach generally adopted by the Court, which does not allow for weighting the risk of ill treatment with the reasons for extradition.

The Court rejected the Governments’ arguments, reiterating that the prohibition of ill-treatment under Article 3 was absolute, and that it was not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State was engaged under Article 3. Similarly, the Court noted that the existence of domestic laws and accession to international human rights treaties by a State which was not party to the Convention does not ensure adequate protection from ill-treatment, especially in cases (such as that of Libya) where reliable sources had reported practices contrary to the Convention, which were actively pursued or tolerated by the authorities. Therefore, the Court concluded that it was likely that, once extradited in Lybia, A. would be detained, risking ill treatment. Accordingly, the Court concluded that A.’s expulsion to Libya would breach Article 3.

The second case, N. v. Sweden, originated in an application by an Afghan national, Ms. N., in which she claimed that her deportation to Afghanistan would be in breach of Article 3. N. applied for asylum, together with her husband X., claiming that they had been persecuted in Afghanistan because X. had been a politically active member of the communist party. Their request was rejected, and N. appealed the decision, claiming that, as she had in the meantime separated from her husband and started an extra-marital relationship, she would risk social exclusion and possibly death if she returned to Afghanistan. Her appeal was also rejected.

Despite the reports  of serious human rights violations in Afghanistan, the Court did not find that they would suggest that there would be a violation of the Convention if N. were to return to that country. However, examining N.’s personal situation, the Court noted that women were at a particularly heightened risk of ill-treatment in Afghanistan if they were perceived as not conforming to the gender roles ascribed to them by society, tradition or the legal system there. Among other things, the Court noted that a recent law, the Shiite Personal Status Act of April 2009, required women to obey their husbands’ sexual demands and not to leave home without permission. Unaccompanied women, or women without a male “tutor”, faced continuous severe limitations to having a personal or professional life, and were doomed to social exclusion. They also often plainly lacked the means for survival if not protected by a male relative. Accordingly, the Court found that if N. were deported to Afghanistan, Sweden would be in violation of Article 3.

Vienna Office for the Protection of the Constitution and Counterterrorism delivers final report into murder of Chechnyan in Austria

In January 2009, an asylum seeker from Chechnya was gunned down in front of a supermarket in Vienna. Austrian investigators now say that their inquiries have led them to suspect that Chechen President Ramzan Kadyrov may have been behind the slaying. Their findings could strain relations between Europe and Russia.

The murder of Umar Israilov, a a 27-year-old Russian citizen of Chechen origin and an applicant for asylum in Austria, committed in broad daylight, triggered a wave of outrage and attracted international attention.

More than one-and-a-half years after the murder, the Vienna Office for the Protection of the Constitution and Counterterrorism has reached the end of its investigation. It believes that an ally of Russian Prime Minister Vladimir Putin, Chechen President Ramzan Kadyrov, was behind the killing. In their dossier, the investigators identify “Kadyrov, Ramzan” as one of the “instigators,” and the investigators conclude that Kadyrov knew about and accepted the killing.

The investigators, in addition to looking into the actual crime, included a complaint filed against Kadyrov by the Society for Threatened Peoples, as well as torture allegations Israilov had made against Kadyrov before the European Court of Human Rights. The victim, a former officer in Mr Kadyrov’s security services, had previously testified in Vienna and in the European Court of Human Rights that Mr Kadyrov practiced torture. His testimonies made him a “risk factor for Kadyrov,” according to the documents obtained by Der Spiegel.

Legal experts like Manfred Nowak, the director of the Ludwig Boltzmann Institute of Human Rights in Vienna, are calling for consequences. It is “time to issue an international arrest warrent” against Kadyrov, says Nowak. “We have enough evidence of Kadyrov’s direct involvement in serious human rights violations, including torture.” Prosecutors in Vienna, working in coordination with the Justice Ministry, are now reviewing the investigators’ report.

Russian delegates to the Council of Europe in Strasbourg on Wednesday 23 June voted in favour of a report that denounced the “climate of pervading fear” created by Mr Kadyrov and called his level of personal power “disgraceful in a democracy.” It added that Russia should enforce the 160-or-so outstanding ECHR judgments against it and that Europe should do more to protect refugees abroad.

Read more here.

ECtHR asks UK to delay extradition of terror suspects to US

The European Court of Human Rights on Thursday ordered (press release; decision) UK to delay the extradition of the radical cleric Egyptian-born radical cleric Mustafa Kamal Mustafa — also known as Abu Hamza al-Masri –  and three other men. The Court said Hamza and the other men shouldn’t be extradited from the UK until it reaches a decision on his claim that the maximum security prison in the U.S. where he is likely to be jailed would violate article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment. The court said it needs more time to rule on that issue.

The US is seeking to prosecute Hamza on charges he supported the Taliban with money and troops, set up a terrorist training camp in Oregon and aided in a 1998 Yemeni kidnapping that left four dead. The UK signed his extradition order after the US gave diplomatic assurances the cleric’s human rights would be respected. Hamza had appealed both the lower court decision to allow his extradition and the UK government’s signing of the extradition papers.

If convicted of charges filed between 2004 and 2006, they could get lifelong jail terms without parole in maximum security conditions, including concrete furniture, timed showers, tiny cell windows and no communications with the outside world. Thursday’s ruling opens a new front over the U.S. practice of putting convicted criminals in spartan, maximum security prisons for the rest of their lives.

The court dismissed the four suspects’ argument that as non-U.S. citizens their trial would be “a flagrant denial of justice.” It also dismissed their fear they would become “enemy combatants” or sent to a third country — past practices that have been abandoned.

It asked Britain if decades in maximum security was not inhumane, if the four suspects can ever expect “transfer to a normal prison” or see their sentences reduced. In this respect, the 70-page ruling cites the harsh conditions at a maximum security prison in Florence, Colorado, where the suspects will likely be sent, if convicted. Human Rights Watch has said the prison’s conditions violate U.S. international treaty obligations.

HRW criticizes stop and search

Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.

The report – Without Suspicion Stop and Search under the Terrorism Act 2000 –  criticizes area-based stop and search under section 44 of the Terrorism Act 2000. Responding to proposals to cut the scope of the scheme, the reports states:

… we believe that even if the law were improved—if its geographic scope were permanently narrowed or its use restricted to specialist officers—the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK’s human rights obligations and is counterproductive.

The Home Office has been under significant pressure recently to repeal the powers. The European Court of Human Rights recently held that the powers violate the right to respect for private life guaranteed by Article 8 of the Convention on Human Rights, and have refused the UK’s application to appeal.

The Home Secretary has already announced an “urgent review” of the powers after a recent admission that thousands of individual searches had been conducted illegally.

(h/t UK Human Rights Watch)