This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 47

FAMILY 

Elderly Russian lady’s expulsion from Finland would not be in breach of Articles 3 and 8 of the Convention; no proof that she could not be cared for in Russia - The case of Senchishak v. Finland  concerned the threatened removal from Finland of a 72-year-old Russian national. She claimed that she would not have access to medical care in Russia, it being impossible for her to obtain a place in a nursing home there, and because she would be separated from her daughter, a Finnish national. The Court found that neither the general situation in Russia nor Ms Senchishak’s personal circumstances would put her at real risk of inhuman or degrading treatment if she were expelled. In particular, she had failed to provide evidence to prove her allegation that she had no access to medical treatment in Russia, there being both private and public care institutions there or the possibility of hiring external help. 

The Court reiterated that, under the Convention case-law concerning expulsion and extradition measures, the notion of “family life” was to be understood as limited to the core family. Notably, relationships between elderly parents – adults who do not belong to the core family – and adult children do not fall within the scope of Article 8 unless it has been proven that the former are dependent on the members of their family. In view of that case-law, the Court considered that there were no additional factors of dependence, other than normal ties of affection, between Ms Senchishak and her daughter. As noted above, there were both private and public care institutions in Russia and the possibility of hiring external help. Moreover, Ms Senchishak’s daughter was able to support her financially and otherwise, given the short distance between the daughter’s place of residence in Finland and their hometown in Russia.

Separate opinions - Judges Bianku and Kalaydjieva expressed a joint dissenting opinion, which is annexed to the judgment:

"We have voted with the majority in so far as we agree that the applicant in the present case failed to demonstrate that her expulsion to Russia would subject her to a risk of treatment of an inhuman and degrading nature beyond the threshold of severity prohibited by Article 3. Regrettably, we could not agree that the provisions of Article 8 were not applicable to the circumstances of the present case or that the complaints of the applicant thereunder were thus incompatible ratione materiae with the Convention (see paragraphs 57 and 58). The Court’s view as to whether the relationship between two persons amounts to “family” ties within the meaning of Article 8 has never been confined to the definition of “family members” provided in the relevant domestic legislation. For this reason the fact that the applicable domestic law in the present case does not regard elderly parents in relation to their adult children as “family members” can neither bind the Court nor change its autonomous interpretation of the notion of “family life” and the circle of individuals entitled to rely on the protection of Article 8 of the Convention. (-) The notion of “core family” and the level of preserved emotional ties between parents and separated adult children vary across the cultures and traditions of Europe as well as among individuals living in various countries. These ties cannot be said to depend on the “regular” or “irregular” status of one or other member of the wider family circle, and often vary also in the different periods of their lives regardless of their place of residence. A time comes when elderly parents do need the loving care of their adult children and actually receive it as a matter of moral duty and preserved feelings of affection. To deny this is to hold that once an individual comes of age, the emotional ties with his or her parents are to be considered once and for all de facto and de jure severed and that for this reason neither a moral nor a legal duty to provide care may be said to exist between them. In our understanding this is incorrect in both legal and moral terms." 

Netherlands accountable for inadequate investigation into fatal shooting of civilian in Iraq during multinational military occupation in 2004 - In its Grand Chamber judgment in the case of Jaloud v. the Netherlands the European Court of Human Rights held, unanimously, that there had been: a violation of Article 2 (right to life – procedural obligations) of the European Convention on Human Rights, as regards the failure of the Netherlands authorities to carry out an effective investigation into the death of Mr Jaloud’s son. The case concerned the investigation by the Netherlands authorities into the circumstances surrounding the death of an Iraqi civilian who died of gunshot wounds in Iraq in April 2004 in an incident involving Netherlands Royal Army personnel. The Court established that the complaint about the investigation into the incident – which had occurred in an area under the command of an officer of the armed forces of the United Kingdom – fell within the jurisdiction of the Netherlands within the meaning of Article 1 of the Convention (contract parties’ obligation to respect the rights guaranteed in the Convention). The Court noted in particular that the Netherlands had retained full command over its military personnel in Iraq. The Court came to the conclusion that the investigation had been characterised by serious shortcomings, which had made it ineffective. In particular, records of key witness statements had not been submitted to the judicial authorities; no precautions against collusion had been taken before questioning the Netherlands Army officer who had fired at the car carrying the victim; and the autopsy of the victim’s body had been inadequate. 

"226.  The Court is prepared to make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work. In particular, it must be recognised that they were engaged in a foreign country which had yet to be rebuilt in the aftermath of hostilities, whose language and culture were alien to them, and whose population – witness the first shooting incident on 21 April 2004 (see paragraph 10 above) – clearly included armed hostile elements.

227.  Even so, the Court must conclude that the investigation into the circumstances surrounding Mr Azhar Sabah Jaloud’s death failed, for the following reasons, to meet the standards required by Article 2 of the Convention: firstly, documents containing important information were not made available to the judicial authorities and the applicant (the official record of statements taken from the ICDC personnel and the list, compiled by Lieutenant A., recording which ICDC members had fired their weapons and the number of rounds fired by each); secondly, in that no precautions were taken to prevent Lieutenant A. from colluding, before he was questioned, with other witnesses to the events; thirdly, in that no attempt was made to carry out the autopsy under conditions befitting an investigation into the possible criminal responsibility of an agent of the State, and in that the resulting report was inadequate; and fourthly, in that important material evidence – the bullet fragments taken from the body – was mislaid in unknown circumstances. It cannot be found that these failings were inevitable, even in the particularly difficult conditions prevailing in Iraq at the relevant time.

228.  The above failings lead the Court to find that there has been a failure to meet the procedural obligations flowing from Article 2 of the Convention."

Separate opinions - Judges Casadevall, Berro-Lefèvre, Šikuta, Hirvelä, López Guerra, Sajó and Silvis expressed a joint concurring opinion

1.  This judgment establishes that a Contracting State may have its own jurisdiction under the Convention in respect of military operations conducted abroad as part of a stabilisation force in cooperation with another State which enjoys full status as an Occupying Power. Like the United States of America, the United Kingdom was an occupying power in Iraq in 2004 within the meaning of United Nations Security Council Resolution 483, whereas the Netherlands military merely assisted the United Kingdom in this occupation. However, the Netherlands authorities remained in full command of their military in the Iraqi province of Al Muthanna, and they exercised full authority and responsibility for establishing security in that region. Thus, Iraqi citizens passing a vehicle checkpoint between Ar Rumaythah and Hamsa, run by ICDC (Iraqi military) personnel who were operating under exclusive Netherlands command, found themselves within the jurisdiction of the Netherlands, as it is defined by the Court’s interpretation of Article 1 of the Convention. We agree with this part of the judgment, which is in line with and logically builds on the Court’s earlier case-law on jurisdiction, most notably Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, ECHR 2011). It follows that the Netherlands were under a procedural obligation to investigate the tragic shooting incident which led to the death of the applicant’s son, and to do so in an effective and diligent manner (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 110 and 112-13, ECHR 2005-VII, and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 321,322, ECHR 2007 II). We agree that the Netherlands had this procedural obligation under the Convention. However, we respectfully disagree with some of the majority’s reasoning underpinning the finding of a procedural violation by the Netherlands.

2.  It is important to realize the full context of the tragic incident. The applicant’s son was shot in Iraq at a vehicle checkpoint under Netherlands command in the night of 21 April 2004. Prior to this incident the checkpoint had come under fire from a car at 2.10 a.m. on the same night and the Iraqi military at the VCP had returned fire, apparently without causing casualties on either side. Netherlands servicemen had been called to the vehicle checkpoint to investigate that shooting. Their investigation started at 2.30 a.m. Fifteen minutes later, the car in which Mr Jaloud was sitting next to the driver approached the VCP at speed. The driver of the car, who had drunk a couple of beers, later submitted that he had not even seen the checkpoint. His car struck barrels alongside the road, causing a loud and sudden noise. The car continued on its way at speed and there were shouts to stop, followed immediately by shooting, after which the car came to a halt. It became clear that Mr Jaloud had been mortally wounded. Contrary to what some of the servicemen present, including lieutenant A., had thought, it transpired that no shots had been fired from the car.

3.  The Netherlands Royal Military Constabulary, present in the region, was called on to begin an investigation into the death of Mr Jaloud. It started doing so as early as 4.50 a.m. The Netherlands Royal Military Constabulary has standing to conduct such investigations, independently from the military command, in respect of Netherlands service personnel. On the basis of a report of their investigations in Iraq, various other documents and a hearing, the Arnhem Court of Appeal later dismissed a request from the applicant for the prosecution of the Netherlands lieutenant A., who had admitted to firing at the passing car. The Netherlands appeal court found that the lieutenant had acted within the military instructions on legitimate (putative) self-defence.

4.  It is clear, as the Court has stated on several occasions, that where the death to be investigated under Article 2 of the Convention occurs in circumstances of armed conflict or in an otherwise unstable region, obstacles may be placed in the way of investigators and concrete constraints may compel the use of less effective measures of investigation. The key question then is whether the investigation into the shooting was conducted in a sufficiently effective and diligent manner, in the sense that it would have been capable of leading to the identification and punishment of those responsible. This is not an obligation of results, but of means. In view of the criteria just mentioned, the procedural obligations under Article 2 also cover proceedings in which it is decided whether or not a person under suspicion should be charged in connection with his or her responsibility for the incident under investigation, although this is not the determination of a criminal charge itself and Article 6 of the Convention does not apply (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 359-360, ECHR 2007-II).

5.  What is undisputed is that the Royal Military Constabulary acted promptly once the matter had come to their attention. It further appears that the investigation was effective, in so far as it determined (a) the cause of death, and (b) identified the Netherlands officer who may have caused the death by shooting. The key question before the Netherlands appeal court was whether the officer should face charges, depending on whether he had or had not acted in compliance with the instruction on the use of force. Under the procedural obligation of Article 2 of the Convention, it is crucial that a judicial authority, in determining whether a serviceman should face further charges or whether he had acted in a justifiable manner within the instructions on the use of force, has the proper information at its disposal. The Arnhem Court of Appeal should have had at its disposal the full witness statements that were taken after the incident, but it appears that only a rather selective summary of these were present in the court file. While it cannot be speculated whether the court of appeal would have reached another conclusion had it been in a position to read all of the witness statements, this is a serious flaw in the quality of the investigation. So far we agree with the position taken by the majority of the Grand Chamber. However, we respectfully regret that the Grand Chamber also found it appropriate to scrutinise the investigations in Iraq in such a painstaking way that eyebrows may be raised about the role and competence of our Court. We restrict ourselves to two examples in the judgment.

6.  The Court criticises the autopsy. Of course, from the perspective of “state of the art” forensic examinations as these would be carried out in the context of domestic proceedings, the autopsy performed in Iraq was inadequate, and that is easily admitted; however, in finding on that basis that this part of the investigation in Iraq was in violation of the Netherlands’ procedural obligations under Article 2, the majority of the Court is taking a rather big step. Whether the Royal Military Constabulary could have claimed full legal control over the body and the circumstances of the autopsy is highly questionable. The Court has not indicated any legal basis for it. Should the Netherlands Royal Constabulary perhaps have used force to secure its attendance at the autopsy? In fact, the Royal Military Constabulary held the body of Mr Azhar Sabah Jaloud for some hours, and something had to be done rapidly. The facilities for an autopsy not being available at the Netherlands camp, the body had to be transferred into Iraqi care. The body was then moved to an Iraqi civilian hospital, where an autopsy was carried out, in the absence of Royal Military Constabulary officials. The Government submit that it was the Iraqi authorities’ decision to exclude Netherlands personnel from the autopsy. There was no legal reason why they could not do so. In addition, according to the Government, the situation was becoming very tense: wider escalation might have followed if a confrontation had been sought; the Netherlands personnel who were present in the hospital reported their fear of being taken hostage and left the premises for that reason. Is this not an example of concrete constraints which may compel the use of less effective measures of investigation?

7.  Another point of concern is where the Court reproaches the Netherlands for the fact that the Royal Military Constabulary did not separate witnesses prior to questioning “the prime suspect” in the shooting, that is, six hours after their arrival at the VCP. This raises questions. Is it really within the competence of our Court to set the standards for investigations at this detailed level in unstable situations such as these which prevailed in Iraq? That would be a very hazardous exercise. It seems obvious that concerns for security at a vehicle checkpoint continued to exist while the investigations were going on. The witnesses to the incident were also responsible for that security. Separating all the witnesses on the spot could have interfered with that duty. Equally, to separate persons in a command position from their military personnel abruptly and in such an unstable environment seems rather dangerous. There were obviously more dimensions to be taken into account than just the investigation, and it is not easy to imagine all of them.

8.  To conclude, we consider that the Court has rightfully underlined that in a context such as the incident under scrutiny there may be obstacles to performing what may seem the most effective manner of investigation. However, this point of departure does not sit easily with all aspects of the subsequent painstaking analysis undertaken by the Court. Besides, the lieutenant, having reported the incident himself, took full responsibility for the shooting from the outset, and there was no appearance of any attempt on his part to manipulate the evidence."

Also read: Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations

Police did not use disproportionate force during identity check - Perrillat-Bottonet v. Switzerland - no violations of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights - The judgment is available only in French. The case concerned an identity check and arrest by the Geneva police during which Mr Perrillat-Bottonet claimed to have been subjected to a disproportionate use of force. The Court found that the recourse to force, such as an arm lock, had been justified by the resistance put up by Mr Perrillat-Bottonet during his arrest. It noted that it had not been established that the arm lock effected by the gendarmes had been the sole cause of the injury sustained by the applicant.It also considered that the decision of the Swiss courts not to re-examine in the reopened proceedings the gendarmes or Mr Perrillat-Bottonet’s friend, who had witnessed the scene, had not detracted from the effectiveness of the investigation.

Separate opinion - Judge Sajó expressed a dissenting opinion, which is annexed to the judgment.

"À mon grand regret, je ne puis suivre la majorité, car j’estime qu’il y a eu une violation de l’article 3 dans son volet procédural. Je suis d’avis qu’il y a eu un certain nombre d’irrégularités dans l’enquête et dans la procédure qui, dans leur ensemble, méconnaissent notre jurisprudence. L’incident qui fait relever la présente affaire de l’article 3 a eu lieu le 4 octobre 2009. Il a fallu attendre deux semaines après l’incident pour que le premier interrogatoire soit conduit. Les premières phases de l’enquête, à savoir l’interrogatoire des gendarmes, ont été menées sous l’autorité de la police et de l’Inspection générale des services de police de Genève. Cela suscite des inquiétudes quant à l’indépendance de l’organe d’enquête à un stade précoce de celle-ci (voir l’arrêt Dembele c. Suisse, no 74010/11, § 64, 24 septembre 2013, dans lequel la Cour a dit : « L’indépendance de l’enquête suppose non seulement l’absence de lien hiérarchique ou institutionnel, mais aussi une indépendance concrète. », et Mesut Deniz c. Turquie, no 36716/07, § 52, 5 novembre 2013). Le Procureur général a fondé sa première décision sur les informations obtenues par ces autorités. Le 17 décembre 2009, il a classé la plainte sans suite. Le 9 juin 2010, la Chambre d’accusation, sur recours du requérant, a partiellement annulé la décision de classement sans suite. Le Ministère public a ensuite entendu le requérant ainsi que les deux gendarmes et une confrontation entre les parties a été organisée le 14 décembre 2011. Cela signifie que les données ont été recueillies avec un retard de dix-huit mois (Amine Güzel c. Turquie, no 41844/09, § 40, 17 septembre 2013). La demande d’audition concernant le chirurgien qui avait opéré le requérant a peut-être été tardive, mais le procureur aurait pu interroger d’office un témoin clé (voir l’arrêt Alberti c. Italie, no 15397/11, § 66, 24 juin 2014, dans lequel la Cour s’est exprimée ainsi : « La Cour remarque que l’autorité judiciaire n’a pas essayé de reconstituer les faits qui se sont déroulés ultérieurement afin d’identifier l’origine et les responsables des lésions litigieuses. »).

Pour les raisons susmentionnées, on peut reprocher aux autorités nationales de ne pas avoir promptement et sérieusement pris en compte les allégations de mauvais traitements formulées par le requérant."

Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.