The applicants, fifteen Roma students from two Croatian primary schools, contested the schools’ policy of placing students who lacked an adequate command of the Croatian language in separate classes. In both schools, the separate classes consisted solely of Roma students. They argued that this fact, taken along with the high drop-out rates and low attendance of Roma students, amounted to discriminatory school segregation in violation of Art. 14 of the European Convention on Human Rights (prohibition of discrimination) and Art. 2 of Protocol 1 to the Convention (right to education).

While all students in the separate classes were Roma, not all Roma students at the school were in separate classes. In fact, most Roma students were fully integrated. The Court thus found it could not rely upon its previous jurisprudence on the subject of school segregation, which had found prima facie discrimination only where a large majority of Roma students were subject to different schooling policies.

Nevertheless, the Court determined that the fact that only Roma students lacked sufficient grasp of the Croatian language mandated that the schools apply special safeguards to ensure that their stated end of providing for the special needs of such students was adequately pursued, especially given the position of Roma as “a special type of disadvantaged and vulnerable minority [that] require special protection.” It found such safeguards lacking. The schools did not, for example, adequately test the linguistic skills at issue or provide sufficient language instruction in the separate classes. Furthermore, they did not take measures to combat the low attendance and high drop-out rates of Roma students. From these facts, the Court concluded that “the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group.”

The minority opinion argued that, absent evidence showing discrimination on ethnic grounds, the Court should have afforded the state “quite a wide margin of appreciation” when deciding how “to address the special needs of certain pupils.” This was especially true given that Croatia’s Constitutional Court and an ECtHR Chamber had already unanimously approved the measure. According to the minority, the majority’s reasoning is better understood as an attempt to address the general disadvantages faced by the Roma population, rather than as a response to the particular situation that the Croatian educators faced.

For further information, please see the Court’s decision and press release.

The clothing mandated by Aczimendi tarikatÿ religious order includes a turban, baggy pants, a tunic, and a stick. Applicants had been arrested in 1996 while walking to the Kocatepe Mosque in Ankara, and filed their petition with the ECtHR in 1997.

For more information, see here and here.

In Guluyeva, Russia’s investigation into the abduction of Ramzan Guluyev, taken from his home in Chechnya on the night of Jule 12-13 2002, was suspended numerous times for Russia’s failure to identify the perpetrators. The Court awarded Mr. Guluyev’s mother 10,800 euros, and 65,000 euros to Mr. Guluyev’s mother and two sisters jointly, plus expenses. Mr. Guluyev remains missing.

Dubayev was brought by the father of Islam Dubayev and the mother of Roman Bersnukayev. Their respective sons disappeared after submitting to a Russian Amnesty Act exculpating them from criminal liability based on their involvement in an illegal anti-Russian group. The Russian government maintains that the two men have been released. The families filed missing person reports, but the government has denied them access to case-files, despite numerous suspensions of the investigations, because it claims that revealing case-files while the investigation is in progress would violate Russian rules of criminal procedure. The Court awarded 60,000 euros to each of the applicants, plus expenses.

The applicants in Guluyeva were represented by the International Protection Centre, and in Dubayev by the NGO EHRAC/Memorial Human Rights Centre.

The judgments will become final pending the procedural protocol of the Court.

For further information, see here. For the Court’s opinion in Guluyeva and Others v. Russia, see here. For the opinion in Dubayev and Bersnukayeva v. Russia, see here.

Previous talks have been derailed by a number of contentious issues; the most serious recent attempt at unification, in 2004, produced an agreement which was subsequently ratified in a referendum by the north but rejected, under the hard-line presidency of Tassos Papadopoulos, by the south. Papadopoulos has since been replaced by the more moderate Demetris Christofias, but the Turkish Cypriot leader, Mehmet Ali Talat, now faces a challenge in upcoming elections from a more hard-line candidate. This has ramped up the pressure for a solution, as has the fact that the ongoing stalemate has dimmed Turkey’s prospects in its own bid for EU accession.

Legal issues relating to the conflict stem originally from the question of whether the 1974 Turkish invasion was justified as a matter of international law. Greek Cypriots argue that the invasion was a clear violation of the UN Charter, which prohibits aggressive war; their argument is supported by the fact that no multilateral body authorized the action. Turkish Cypriots counter that Turkey’s response was justified, as a form of self-defense, by the prospect of the island’s annexation to Greece, and, as a form of humanitarian intervention, by longstanding intercommunal violence directed toward the Turkish-speaking minority. Going forward, both political and legal solutions will be needed to address issues including the division of contested territory, the presence of Turkish forces, reparations for lost property, and power sharing under a proposed federation.

For more information, please click here.

The European Court of Human Rights acknowledged that the power-sharing mechanisms of the Bosnian Constitution were justifiably designed to achieve the aim of restoring peace to a war-torn country rife with ethnic conflict; however, it also noted that the country has made considerable progress in the fourteen years since the Dayton Peace Agreements. The court further noted the existence of other power-sharing mechanisms that do not require the exclusion of ethnic minorities not belonging to the three constituent peoples from high public office. As a result, the court found that the rule prohibiting non-constituent peoples from holding office in the House of the Peoples of the Parliamentary Assembly violated Article 14 of the European Convention on human rights (prohibiting discrimination in the enjoyment of rights guaranteed by the Convention) read in conjunction with Article 3 of Protocol No. 1 (guaranteeing the right of free elections). The court also found that the constitutional rule prohibiting the applicants from running for President violated Article 1 of Protocol No. 12 (prohibiting discrimination in the enjoyment of any right set forth by law). In terms of remedy, the court held that the finding of a violation provided just satisfaction with regards to the plaintiffs’ non-pecuniary injuries, and ordered the State to pay 1,000 Euros to the first applicant and 20,000 Euros to the second to cover their costs and expenses.

For further information, please click here.

In Shabani v. Switzerland (application no. 29044/06), a 4-3 decision, the European Court of Human Rights (ECtHR) ruled last Thursday (11/5) that a lengthy pre-trial detention did not violate the right to liberty of a suspected leader of a drug trafficking organization.

The applicant, Mr. Ragip Shabani, was denied the option of posting bail and was then subject to a pre-trial detention lasting over five years. He had originally been arrested on August 2, 2003, on suspicions of taking a leading role in a drug trafficking operation believed to involve fourteen-hundred kilograms of heroin and cocaine. After losing his appeal concerning Switzerland’s decision not to allow him to post bail, he turned to the ECtHR in 2006 while investigations were still underway, claiming that his lengthy detention violated his right to liberty. Subsequently, Mr. Shabani was indicted in December 2007, and his trial was scheduled for March 2008 but was later delayed until August 2008 due to a lack of adequate security staff. He was convicted on October 30, 2008.

The ECtHR recalled its previous findings that a government’s reasonable suspicion that someone had committed an offence could only justify detention for a limited period of time; after that time had lapsed, the authorities would have to give “relevant” and “sufficient” reasons for the continued detention and show that they had displayed “special diligence” in the conduct of the proceedings. The Court found that the government’s reasons for the continued detention satisfied these additional conditions. The government’s concerns that Mr. Shabani might abscond or collude if given the chance to post bail, as well as the potentially dubious origin of the funds used, justified its denial of that opportunity. And the proceedings were understandably long, since investigating an underground international criminal organization is a complex operation; in this regard, the Court found it especially significant that there had been no periods of inactivity during the proceedings.

In a short dissent, three judges rejected the “no period of inactivity” logic, pointing out that it could potentially justify indefinite detentions. They further argued that the delay in the trial’s starting date had been insufficiently explained; after more than four years with Mr. Shabani in detention, Switzerland should have been particularly cognizant of the need to start trial immediately after the indictment was filed. In their view, Switzerland’s lack of diligence, coupled with the lengthy detention, constituted a violation of Mr. Shabani’s right to liberty.

For more information, please click here.

The KP initiative began after 2000 discussions between interested governments, the diamond industry, and members of civil society of how to combat “conflict diamonds,” which have been used to finance wars in Africa’s diamond-rich countries. By 2002, the KP adopted the Kimberly Process Certification Scheme (KPCS), which requires participants to rigorously control diamond exports and imports and incorporate internal controls for the production and trade of diamonds. To ensure compliance, the KP requires statistical reporting on a regular basis in addition to other verification measures. With the Support of the United Nations and the European Community, the KP now has 49 Participants, with the members of the European Community counted together as a single member. The participants include all key centers for the production, polishing, and trade of diamonds.

The KP’s review of the Marange mining fields occurred as a result of recent reports suggesting non-compliance and human rights abuses. These reports followed the Zimbabwean government’s takeover of the fields during operation “Hakudzwoki” (no return) back in November of 2008. As a result, the KP adopted a double-track approach, using scientific measures to halt the flow of conflict diamonds from the area and sending a high-level KP envoy to the area. As part of the action plan adopted at the Swakopmund Plenary meeting, Zimbabwe agreed to bring mining into compliance with the KP so that the diamonds can be used for economic development rather than war.

For further information, please click here.

The applicant, Ms. Soile Lautsi, petitioned the Court after Italy had rejected her requests to take down crucifixes that were prominently displayed in her children’s classrooms in accordance with Royal Decrees dating from the 1920’s. Responding to Italy’s argument that crucifixes had become a symbol of secular Italian history and culture, the Court relied on its former holding in Buscarini et al. v. Saint-Marin that the social and historical meaning of a text used in oath-taking did not deprive the text of its religious character. The Court noted that the crucifixes could easily be interpreted as religious signs and that children could feel that their school environment was Catholic; this point was further aggravated by the fact that Catholicism was the majority religion in Italy. As students could not avoid the classrooms without undue hardship, the Court found that the presence of the crucifixes thus interfered with the right of parents to educate their children in accordance with their convictions, and the right of children to believe or not to believe.

The Court awarded the applicant 5,000 euros for moral damage, considering that a mere declaratory judgment would not be sufficient as Italy had not expressed its readiness to review the relevant Royal Decrees.

For more information, please click here.

These cases fall in a steady stream of petitions to the Court concerning events in Chechnya—by some estimates up to 400. The Court has now issued judgments in 120 of these cases and has developed evidentiary presumptions for the Chechen context, which it applied to the cases at hand.

For example, the Court has before held that it will draw a negative inference from Russia’s refusal to turn over investigative reports—despite the fact that Russia’s domestic law bans the government from doing so. The Court relied on such an inference to reject Russia’s claims that Satabayev and Vakhayev had been released from Russian detention before they disappeared. Furthermore, the Court made reference to factual presumptions arising from Russia’s “exclusive control” of the area from which Khantiyev was abducted—as well as Russian guards’ “blatant passivity” in response to the event—in rejecting Russia’s contention that Khantiyev’s abductors had not been Russian agents.

In analyzing claims relating to the victims’ right to life, the Court referred to a much stronger evidentiary presumption that it first developed in the 2006 case of Imakayeva v. Russia: “[I]n the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.” In other words, the Court will presume someone dead when it is established that they disappeared under Russian control.

Ole Solvang, Executive Director of the Russian Justice Initiative, suggests that such victim-friendly evidentiary presumptions have developed in the Chechen disappearance context due to the fact that “[t]he frequent lack of evidence concerning the fate of the victim and the identity of the perpetrators makes it difficult for a court to hold individuals responsible for the disappearance of a person.” The problem is also widespread, with a Human Rights Watch (HRW) report from 2005 already estimating that some 5,000 people had disappeared in Chechnya at the hands of military and security forces since the outbreak of hostilities in 1999—occurrences that in the aggregate HRW calls a crime against humanity.

HRW’s allegations, based not on human rights law but rather on the laws of armed conflict or international humanitarian law (IHL), remind us that the line of Chechen cases before the ECtHR are part of a larger trend of victims of wartime atrocities turning to human rights tribunals to air their claims in the absence of effective enforcement for the laws of war. Last summer’s armed conflict in South Ossetia, for example, has given rise to a flurry of additional cases before the ECtHR as well as a claim by Georgia before the International Court of Justice (ICJ) that Russia’s actions violated the Convention on the Elimination of Racial Discrimination—a case that the ICJ accepted on the bases of the Convention even though it would not have been able to hear it without Russia’s consent had it been brought under IHL.

There are different views on the merits of translating wartime activities into claims under human rights instruments designed for peacetime, but one result of the trend is clear from the ECtHR’s treatment of the Chechnya cases. While IHL generally applies different law to different individuals based on their status as a civilian or member of an armed group, human rights courts seem generally willing to substitute their functional tests that look beyond membership to the individual characteristics of the victim. In the present three cases, for example, the Court made no distinction between Satabeyev, who had been a member of a rebel group, and the other two victims, who had not.

In other cases, the Court has further proved willing to enforce the protections provided by human rights law even when IHL would explicitly have offered lesser protection. For example, in the 1996 case of Bazorkina v. Russia, the Court found that a rebel detained while in active combat enjoyed the extensive procedural rights afforded by the Convention—as opposed to the low level of protection provided to combatants in non-international armed conflicts by Article 3 common to the 1949 Geneva Conventions.

Notwithstanding their legal victories, family members of victims in Chechnya still bemoan Russia’s continued unwillingness to help them locate the bodies of their loved ones, according to a HRW report published last month. Nevertheless, with some 300 cases still pending before the ECtHR on the Chechen conflict alone, as well as new cases from the South Ossetian conflict now on the dockets of the ECtHR and ICJ, it is unlikely we will soon see the end of war victims turning to human rights law for reparation.

For further information, please click here.

The case arose out of a preliminary reference to the ECJ from the German tax court (Finanzgericht) for Hamburg. Brita GmBH, a German company, contested the customs duties imposed by Germany on imported goods from settlements in the occupied territories.(9) The German court specifically asked whether the goods could be granted the benefit of the the EC-Israel or the EC-PLO agreement when certified as of Israeli origin by Israel.(10) The referring court believes that the goods, whether originating in Israel or Palestine, should be subject to the exoneration of customs duties.(11) The advocate general disagrees first, on the terms of the treaty,(12) and second because to do so would not respect the sovereignty of the relevant Palestinian authorities. The Advocate General analogizes this case to early E.C. caselaw(13) (Cyprus(14)) where a result similar to the one he advocates was found.

The Opinion, which seems persuasive, will likely influence the ECJ’s impending final decision. It is not without implications for regional stability. Free trade makes war less likely by encouraging prosperity and interdependence, by breaking down isolation. To that end, the E.U. established a partnership with the countries of the Mediterranean basin to create free trade and encourage democracy and human rights’ protection(15) via bilateral agreements following a uniform model providing for free trade.(16) For the ECJ to grant the exemption of customs duties based on Israeli rather than Palestinian authority would be an act of de facto recognition of the legitimacy of the Israeli occupation as well as ignoring the plain meaning of the treaty. Hopefully the Israeli and Palestinian authorities will coordinate and resolve their differences, somehow.