Katyń massacre during World War II
Janowiec and Others v. Russia concerned complaints by relatives of victims of the 1940 Katyń massacre – the killing of several thousands of Polish prisoners of war by the Soviet secret police (NKVD) – that the Russian authorities’ investigation into the massacre had been inadequate. The applicants complained that the Russian authorities had not carried out an effective investigation into the death of their relatives and had displayed a dismissive attitude to all their requests for information about their relatives’ fate.
The European Court of Human Rights held that it had no competence to examine the complaints under Article 2 (right to life) and that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. If found that it was not competent to examine the adequacy of an investigation into the events that had occurred before the adoption of the Convention in 1950. Furthermore, by the time the Convention entered into force in Russia, the death of the Polish prisoners of war had become established as a historical fact and no lingering uncertainty as to their fate – which might have given rise to a breach of Article 3 in respect of the applicants – had remained.
First Gulf War
Hussein and Others v. Belgium During the first Gulf War (1990-1991) the applicants, ten Jordanian nationals, who were living in Kuwait, were prosecuted by the Kuwaiti authorities and deported to Jordan. They lodged a civil-party application with the Brussels investigating judge against high- ranking Kuwaiti officials with a view to launching criminal proceedings for genocide on the basis of the 16 June 1993 Act on the suppression of serious violations of international humanitarian law.
The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention in the present case. It ruled, in particular, that the Belgian courts had provided a specific and explicit response to the pleas raised by the applicants and had not failed in their obligation to give reasons. It discerned nothing arbitrary or manifestly unreasonable in the domestic courts’ interpretation of the concept of “investigative act”.
Armenia and Azerbaijan / Nagorno-Karabakh2
Chiragov and Others v. Armenia 2015 (Grand Chamber – judgment on the merits) This case concerned the complaints by six Azerbaijani refugees that they were unable to return to their homes and property in the district of Lachin, in Azerbaijan, from where they had been forced to flee in 1992 during the conflict over Nagorno-Karabakh. The applicants complained in particular about the loss of all control over, and of all potential to use, sell, bequeath, mortgage, develop and enjoy their properties in Lachin. They also complained that their inability to return to the district of Lachin constituted a continuing violation of the right to respect for home and private and family life. Furthermore, they complained that no effective remedies had been available to them in respect of their complaints.
In the applicants’ case, the Court confirmed that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and thus had jurisdiction over the district of Lachin. Concerning their complaints, it held that there had been a continuing violation of Article 1 (protection of property) of Protocol No. 1 to the Convention, a continuing violation of Article 8 (right to respect for private and family life) of the Convention, and a continuing violation of Article 13 (right to an effective remedy) of the Convention.
The Court considered in particular that there was no justification for denying the applicants access to their property without providing them with compensation. The fact that peace negotiations were ongoing did not free the Armenian Government from their duty to take other measures. The Court also noted that what was called for was a property claims mechanism which would be easily accessible to allow the applicants and others in their situation to have their property rights restored and to obtain compensation.
Sargsyan v. Azerbaijan concerned an Armenian refugee’s complaint that, after having been forced to flee from his home in the Shahumyan region of Azerbaijan in 1992 during the conflict over Nagorno-Karabakh, he had since been denied the right to return to his village and to have access to and use his property thereIn the applicant’s case, the Court confirmed that, although the village from which he had to flee was located in a disputed area, Azerbaijan had jurisdiction over it. Concerning the applicant’s complaints, it held that there had been a continuing violation of Article 1(protection of property) of Protocol No. 1 to the Convention, a continuing violation of Article 8 (right to respect for private and family life) and a continuing violation of Article 13 (right to an effective remedy) of the Convention. The Court considered in particular that while it was justified by safety considerations to refuse civilians access to the village, the State had a duty to take alternative measures in order to secure the applicant’s rights as long as access to the property was not possible.
War in Croatia
Marguš v. Croatia concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991.
The Court held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial) of the Convention, considering that the applicant’s removal from the courtroom had not prejudiced his defence rights to a degree incompatible with that provision. The Court further held that Article 4 (right not to be tried or punished twice) of Protocol No. 7 to the Convention was not applicable in respect of the charges relating to the offences which had been the subject of proceedings against the applicant terminated in 1997 in application of the General Amnesty Act.
Milanković v. Croatia concerned the applicant’s conviction for war crimes, perpetrated by the police units under his command, against the Serbian civilian population and a prisoner of war, on the territory of Croatia between mid-August 1991 and mid-June 1992. The applicant complained that, in convicting him of those crimes, the domestic courts had applied a protocol applicable only to international armed conflicts, whereas the events had taken place before Croatian independence and thus during a non-international armed conflict.The Court held that there had been no violation of Article 7 (no punishment without law) of the Convention in the applicant’s case. It found, in particular, that the applicant’s conviction for war crimes on the basis of his command responsibility had, at the time of the events, a sufficiently clear legal basis in international law also covering non- international armed conflict, and that he should have known that his failure to prevent them from being committed by the police units under his command would make him criminally liable. It was irrelevant whether those crimes had been committed before or after Croatian independence.
War in Bosnia and Herzegovina
Mustafić-Mujić and Others v. the Netherlands The applicants, relatives of men killed in the Srebrenica massacre of July 1995, imputed criminal responsibility to three Netherlands servicemen who were members of the UN peacekeeping force.
The Court declared the application inadmissible, finding that the Netherlands authorities had sufficiently investigated the incident and given proper consideration to the applicants’ request for prosecutions. In relation to the investigation, the Court held that there had been extensive and repeated investigations by national and international authorities. There was no lingering uncertainty as regards the nature and degree of involvement of the three servicemen and it was therefore impossible to conclude that the investigations had been ineffective or inadequate. In relation to the decision not to prosecute – taken on the basis that it was unlikely that any prosecution would lead to a conviction – the Court rejected the applicants’ complaints that that decision had been biased, inconsistent, excessive or unjustified by the facts.
NATO operation in former Yugoslavia
Behrami and Behrami v. France and Saramati v. France, Germany and Norway The first case concerned the detonation of a cluster bomb in March 2000 – dropped during the 1999 NATO bombing of the then Federal Republic of Yugoslavia – found by playing children, which killed one boy and seriously wounded another.
The Court declared the applications inadmissible. It found that the supervision of de- mining in Kosovo fell within the mandate of the UN Interim Administration for Kosovo (UNMIK) and the issuing of detention orders fell within the security mandate of KFOR, hence the UN, given that the UN Security Council had passed Resolution 1244 establishing UNMIK and KFOR. The UN had a legal personality separate from that of its member states and was not a Contracting Party to the Convention. Since UNMIK and KFOR relied for their effectiveness on support from member states, the Convention could not be interpreted in a manner which would subject Contracting Parties’ acts or omissions to the scrutiny of the Court.
Conflict in Chechnya
A substantial number of cases arose over Russia’s actions against a rebellion in Chechnya. Chechnya declared itself independent after the collapse of the Soviet Union. The first Chechen war led to a ceasefire in 1996. In 1999 Russia conducted aerial bombardment with a significant loss of life. Its troops took back the cities of Grozny, but Chechen separatists continue to resist.
The court accepted the right of the Russian state to regain control over Chechnya and suppress an illegal armed insurgency. It stated that a balance must be achieved between the aim pursued and the means employed to achieve it. The use of aerial bombardment in an area with a civilian population required precise justification. The use of a weapon in a populated area outside wartime without evacuation of civilians was found to breach Article 2.
There was no martial law or state of emergency, and no derogation was sought from the Convention. The massive use of indiscriminate weapons stands in flagrant contrast to the aim of protecting lives from violence and could not be considered compatible with the standard of care prerequisite to an operation of this kind. involving the use of lethal force by state agents.
Pitsayeva and Others v. Russia of 9 January 2014 concerned the disappearances of 36 men after they were abducted in Chechnya by groups of armed men, in a manner resembling a security operation, between 2000 and 2006. In this case the Court confirmed its conclusion in previous cases that the situation resulted from a systemic problem of non-investigation of such crimes, for which there was no effective remedy at national level.
The Court held in the present case that there had been a violation of Article 2 (right to life) of the Convention, both on account of the disappearance of the applicants’ relatives who were to be presumed dead and on account of the inadequacy of the investigation into the abductions; a violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of the applicants on account of their relatives’ disappearance and the authorities’ response to their suffering; a violation of Article 5 (right to liberty and security) on account of the unlawful detention of the applicants’ relatives; and a violation of Article 13 (right to an effective remedy) of the Convention.
The judgment in the case of Abakarova v. Russia of 15 October 2015 concerned an aerial attack by the Russian military on a village in Chechnya in February 2000 which had killed the family of the applicant, eight year old at the time, and left her injured.
The Court held in the present case that there had been a violation of the substantive limb of Article 2 (right to life) of the Convention in respect of the applicant and her five deceased relatives, a violation of the procedural limb of Article 2 in respect of the failure to conduct an effective investigation into the use of lethal force by State agents, and a violation of Article 13 (right to an effective remedy) of the Convention in conjunction with Article 2, on account of the flaws of the criminal investigation, which had in turn undermined the effectiveness of any other remedy that might have existed.