Monthly Archives: December 2014

Justifying age discrimination in the recruitment of police officers: Mario Vital Pérez v. Ayuntamiento de Oviedo (Case C 416/13)

European and national legislation often disagree when a legitimate objective is relied upon to justify a situation of direct age discrimination. The Employment Equality Framework Directive 2000/78 prohibits discrimination on grounds of age in the fields of employment, occupation and vocational training. According to art. 2, equal treatment means “that there shall be no direct or indirect discrimination whatsoever on the ground of age”. The legislation sets out minimum requirements, which need to be respected by Member States in their national legislations. However, articles 4 and 6 of the Directive introduce a number of exceptions to the Principle of Equal Treatment. Under articles 4 and 6 Member States can introduce special national provisions that allow differences of treatment on the basis of particular occupational requirements, while article 6 sets out justified differences of treatment when pursuing a legitimate aim. [1] This post examines the interrelation between the exceptions found in art. 4 and 6 of the Directive and the general principle of equal treatment, by critically addressing the interpretation followed by the European Court of Justice in justifying certain cases of age discrimination within the scope of the Directive. The Court’s position on this topic has raised debates as to the effectiveness of a legislative protection against age discrimination.

In the recent case of Mario Vital Pérez v Ayuntamiento de Oviedo (Case C‑416/13), the local Spanish Court, the Juzgado de lo Contencioso-Administrativo No 4 de Oviedo (Spain), requested a preliminary ruling by the European Court of Justice. Mr. Pérez challenged the Spanish law, and in particular the law of the Principality of Asturias, on the coordination of local police forces (BOE No 169 of 16 July 2007). Indeed, he challenged Point 3.2 of the notice of competition (which is the official document in which the details and conditions for the police officers’ recruitment are provided), on the basis that it violates the fundamental right of access, on equal terms, to public office, as affirmed in the Spanish Constitution and in Directive 2000/78. Consequently, he sought annulment of that provision on the ground that an age barrier is not justified, inasmuch as physical fitness is ensured through the physical tests specified in the notice of the competition.  In addition, Mr Pérez observed that the laws enacted by the Autonomous Communities either do not set a maximum age (Andalusia, Aragon, the Balearic Islands, the Canary Islands, Castilla-La Mancha, Catalonia and Extremadura) or set it at 35 years of age (the Basque Country) or 36 (Valencia and Galicia); indicating a lack of consistency, on the part of the Principality of Asturias, when compared to the other Communities. Article 32(b) of the Spanish law specifies that one of the conditions for entry into the local police force is for the person to be at least 18 years of age and no more than 30 years of age.  Relying on Article 6 of Directive 2000/78, such an age limit has been justified by the Spanish law in the light of the objective of ensuring that local police officers possess a particular level of physical fitness for the performance of their professional duties. Art. 6(1)(c) provides that “the fixing of a maximum age for recruitment…is based on the training requirements of the post in question…or the need for a reasonable period of employment before retirement”. According to this provision, the rationale of the Principality of Asturias is that the maximum age of 30 could be justified on the basis of a physical requirement for the police officer position. On this point, prohibiting age discrimination oscillates between employment policies considerations on the one hand and the general principles of anti-discrimination law on the other.[2]

Two main questions arise when one examines the Pérez case; firstly, why direct age discrimination against police officers over the age of 30 should be justified on the basis of a required level of physical fitness intended as legitimate aim; and secondly, in what instances would the physical requirements ground relied upon be considered as “appropriate and necessary”.  The problem is whether the age at which a police officer can be recruited allows enough time to justify the training given and enough time to do the job before the physical demands become too much. A previous case, Colin Wolf v Stadt Frankfurt am Main, deals with the same employment policies. Consequently, it requires a separate analysis in order to see how the court has interpreted the age limit in Pérez case.

In Wolf case (c-229/08)[3] a preliminary ruling was requested from the ECJ to ensure a long career for officials, or at least to ensure a minimum period of service before retirement as a legitimate aim (Article 6(1)). Mr Wolf applied for an intermediate career post in the fire service (which involved physically demanding tasks such as fighting fires and rescuing people). The City of Frankfurt am Main replied to Mr Wolf that his application could not be considered, because he was older than the age limit of 30 years. The referring Court considered that it should be ascertained whether the difference of treatment on grounds of age could be justified by the German law.  The German General Law on equal treatment[4] at Paragraph 10.3 transposed art. 6(1)(c), in the same terms of the Spanish law in article 32(b), as seen above. The Court considered that the physical fitness of an applicant for an intermediate career post in the fire service is assessed in a separate selection procedure, to which Mr Wolf was not admitted because of his age. Following this, the Court limited its question to the interpretation of Article 6(1) of the Directive, in particular focusing on a possible justification of the difference of treatment resulting from the application of the national legislation at issue in the main proceedings[5]. In this particular case, the age barrier was held to be an appropriate objective for ensuring the operational capacity and proper functioning of the professional fire service, without going beyond what was necessary to achieve that objective. The Grand Chamber considered the physical requirements needed for the performance of fire-fighting and rescue duties which, according to the Court, are such that can only be performed by younger officials. This requirement has been justified as a “genuine and determining occupational requirement” on the basis of art. 4(1) of Directive 2000/78 alone. According to the Court, it does not constitute a discrimination on the ground of art. 1, without the need to further consider art. 6. In this way, the Court gave a very broad interpretation of the genuine occupational defence by finding that a maximum recruitment age, as well as physical fitness, was a genuine occupational requirement related to age.

On the contrary, in Pérez case the Court took the view that the level of physical fitness required to work as a local police officer cannot be compared to the “exceptionally high physical capacities” required in the case of fire fighters and therefore the age barrier was not justifiable. Hence, despite in Wolf the Court gave a broad interpretation of the genuine occupational defence for the purpose of art. 4(1), in Pérez the Court used the different nature and level of duties required as the core element for its interpretation and judgment. In Wolf case the maximum requirement age set in German national legislation has been regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective.

At the first instance, to justify an age barrier on the basis of physical capacity considerations deriving from a determined chronological age, seems to contradict the well-established principle of non-discrimination (Mangold case[6]). However, in both cases, the Court focused on interpreting the exceptions under art.4 and art. 6 of Directive 2000/78.  According to the Court’s approach in Pérez, the difference between justifiable treatment and prohibited age discrimination depends merely on a consideration of the physical duties of each post. Then, in Wolf case the Court considered the age limit as a means to protect the time allowed for a normal career as fire fighters. The same age limit has been instead considered as a discriminatory barrier for police officers career. The focus on the operational capacity and proper functioning of police officers and fire fighters, leads to an oversimplification of the situation, with the chronological age of the person concerned becoming the mere consideration of the Court.

In conclusion, in Wolf case the age barrier is “appropriate and necessary” for “the training requirements or the need for a reasonable period of employment before retirement” and has been both positively accepted and broadly defined by the Court. Despite the similarity, the Pérez case has been considered as a case of age discrimination. The situation of Mr. Pérez sparks reflections on the important economic consequences deriving from recruiting and training police officers characterised by short terms of employability. Ensuring more consistency from the European Court of Justice, especially when examining age discrimination exceptions, would encourage equality and an economic upturn from part of the national legislation. Particular attention at national careers management, especially when a European case has determined a precedent, would encourage a higher economic stability within each country and an overall legal reliability across Europe.

[1] Sargeant , M. Distinguishing between justifiable treatment and prohibited discrimination in respect of age, Journal of Business Law 2013

[2] Schiek, Dagmar, “Age discrimination before the ecj – conceptual and theoretical issues“ [2011] 48 Common Market Law Review, Issue 3, pp. 777–799

[3] Colin Wolf v Stadt Frankfurt am Main (2010) ECR, Case C‑229/08

[4] “Allgemeines Gleichbehandlungsgesetz“ of 14 August 2006 (BGBl. 2006 I, p. 1897, ‘the AGG’)

[5] see, inter alia, Case C‑321/03 Dyson [2007] ECR I‑687, paragraph 24; Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 64 and the case-law cited; and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 23

[6] Werner Mangold v Rüdiger Helm, (2005) ECR I-9981, Case C-144/04

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The Declaration and the Guidelines on Migration of the CCBE (Conseil des barreaux européens) : Migration from the European Lawyers’ perspective.

On 3 October 2013 more than 100 people died after a migrant boat caught fire in trying to cross the “border sea” between  Africa and Europe, just in front of the Mediterranean isle of Lampedusa. The European Union could not ignore the human tragedy of those risking their life making the journey to Europe’s southern borders, escaping from countries where fundamental rights are systematically violated.[1]  This post does not aim to analyse the current legislative situation and the political response of the EU in this field, it will rather focus on the reaction  and the juridical response of European lawyers to this important issue in EU law. Indeed, the complexity of the phenomenon of migration and, also, its political involvements should not eclipse the main problem which is linked to this matter, that is the duties of every judicial operator in respecting and protecting, first of all, the fundamental  human  rights of migrants.

The whole legal profession is fully represented in the EU by 45 national delegations (32 member countries plus 13 further associate and observer countries) at the CCBE (Conseil des barreaux européens), which on  29 of November 2014  has adopted two different legal instruments with the aim of facing the serious matter of the protection of migrants’ fundamental rights: the Declaration on Migration and the Guidelines on Migration of the CCBE.[2]

The nature of the legal rules that the CCBE is charged to issue, coherently with its role, is basically deontological: that means that the task of its instruments is to regulate the conduct of European Lawyers in judicial and social systems. The adoption of a Declaration of principles and a track of Guidelines in migration matters, addressed to lawyers, represents, however, an important step for European political affairs and Civil Society, regardless of the nature of the rules in question. The philosophy of these regulations perfectly matches that underlying the previous instruments implemented by the CCBE. In the Code of Conduct for European Lawyers, as well as in the Charter of Core Principles of the European Legal Profession, it is strongly affirmed that the role of independent  lawyers constitutes part of the essential foundations of a democratic society and this principle also underlies the last Declaration on Migrants and the Guidelines on Migration.[3] In this sense, the social responsibility ascribed to lawyers is grounded on the supreme value of fundamental rights in the judicial systems of Member States, finding its legal foundation (among other instruments) in Article 47 of the European Charter for fundamental rights. . The mentioned provision guarantees the fair access to justice to all individuals, without mentioning nationality or citizenship.

The Declaration on Migration of the CCBE is conceived as the theoretical and practical  response to the necessity of promoting the respect for fundamental rights in the area of migration law. The charter is composed of five principles, expressing the core idea of the CCBE with regard to migrants’ protection by judicial operators and EU institutions in general These principles are: (a) the defence of the rule of law and democratic values; (b) the challenge offered by migration as a complex matter in terms of “giving rise to concerns and issues across a broad spectrum of rights and law including but not limited to human rights and humanitarian law, criminal law, employment law, family law and administrative law”;  (c) the obligation for the EU and Member States to guarantee the dignity of migrants and their access to justice and to legal aid with lawyers as front – line guarantors; (d) the supremacy of the protection of human rights and freedoms over any political, economic and safety consideration; (e) the consequent societal duties in light of the qualification of migration “as a crucial issue of the future social development”.[4]

On the other hand, the Guidelines try to draw the profile of a new legal profession with the aim of assisting European Lawyers practising in the field of migration law, by setting out  some additional  rules which may be summarised as follow: (a) the undeniable necessity of specialising training and educational programme for Lawyers in EU law, migration, asylum law and  protection requirements in order to ensure that the operators can acquire the technical skills necessary in those fields ; (b) the provision of facilities towards migrants’ access to legal aid and translation services; (c) the central role of the bar association as to the realisation of those objectives in the promotion of the free movement of persons internally in the European Union.[5]

The crucial points of these two texts reflect the common worries of the human rights advocacy, concerning the protection of a minimum level of fundamental rights for minorities.  This minimum level requires, on the one hand, ensuring equal access to justice for all individuals and, on the other, the professional development of all operators through programmes of technical education.[6]

Briefly, both these CCBE instruments arise from the general principle expressed in Article 1.1. of the Preamble of the Code of Conduct for the European Lawyers, which affirms the function of the lawyer in society as follow:

“In a society founded on respect for the rule of law the lawyer fulfils a special

role. The lawyer’s duties do not begin and end with the faithful performance

of what he or she is instructed to do so far as the law permits. A lawyer must

serve the interests of justice as well as those whose rights and liberties he or

she is trusted to assert and defend and it is the lawyer’s duty not only to plead

the client’s cause but to be the client’s adviser”.

Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society.[7]

There is no doubt that migration is nowadays one of the challenges that the European Union of the 3rd millennium must face: it involves a lot of different aspects, from the safety management of European external borders to the  guarantee of a minimum level of protection for the fundamental rights of migrants who “knock to the EU’s doors”. In this patchwork of social, cultural and juridical situations, European lawyers are called upon to figure out the nature of the role that they must play in this field.

The CCBE and its regulations represent the main instruments for the approximation of deontological rules and codes of conduct in force in each European country, regardless of the differences between European judicial systems. These new regulations could also represent a crucial further step in the convergence of the different cultural approaches adopted by each European member in facing and solving issues arising from migration.

In conclusion, in this particularly delicate context, every unanimous voice invoking the supremacy of fundamental rights over all other considerations, such as the CCBE voice, ensures that the pressure is maintained on political authorities as to the human and juridical concerns arising from migration.

[1] See the European Parliament resolution of 23 October 2013, 2013/2827,  on migratory flows in the Mediterranean, with particular attention to the tragic events of Lampedusa.

[2] The CCBE Declaration on Migration, [2014 – 11 – 29 ], available on http://www.ccbe.eu/index.php?id; The CCBE Guidelines on Migration, [2014 – 11 – 29], ibidem.

[3] The Code of Conduct for European Lawyers, adopted at the CCBE Plenary Session held on 28 October 1988, and subsequently amended during the CCBE Plenary Sessions on 28 November 1998, 6 December 2002 and 19 May 2006, available on http://www.ccbe.eu/index.php?id=32&L=5 .

[4] The CCBE Declaration on Migration, ibidem.

[5] The CCBE  Guidelines on Migration, ibidem.

[6] Let me refer to the “pilot – project” of the Italian National Bar, which in 2014 has promoted the creation of a task force of Italian lawyers operating in Lampedusa to support the local institutions in facing current migration’s matters, called “Presidio Lampedusa” ( further informations available on http://scuolasuperioreavvocatura.it/progetto-lampedusa/).

[7] Preamble of the Code of Conduct adopted by the CCBE, Article 1.1.

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The Lubanga Appeals Judgment and  the ‘active use’ of children in hostilities  

On 1 December 2014, the Appeals Chamber at the International Criminal Court (ICC) upheld the conviction of Thomas Lubanga as a co-perpetrator for the crime(s) of conscripting and enlisting children into an armed group and using them to participate actively in hostilities. The Judgment and its dissenting opinions provide an interesting reflection on various legal and evidentiary issues. Among them is the problematic definition of actively using children in hostilities. While the Appeals Chamber confirmed the conviction of Mr Lubanga on this ground, it rejected Trial Chamber I’s interpretation of active use. Primarily the Appeals Chamber determined that the interpretation of the concept of active use in Article 8(2)(e)(vii) is distinct from the concept of direct or active participation for the purposes of the principle of distinction;[1] the Court held that the provision needs to be examined independently in the light of its purpose to protect children. Secondly, while the Appeals Chamber confirmed that it is appropriate to conduct a case-by-case assessment to determine what acts fall within the definition of active use, it rejected the Trial Chamber’s risk-based approach.

Although the popular portrayal of a young child wielding a menacing weapon is a prevalent representation of child soldiers, the reality is much more complex; it has been suggested that “[c]ontrary to popular conceptions, many child soldiers never fight, […]carry their own weapon [or] know how to use one. Children’s roles vary according to the context and children’s characteristics”.[2]  Therefore, since a child can be involved in hostilities in ways other than through active combat, defining the scope of active use can be difficult.

Under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute the “child soldiers” crime[s] consist[s][3] of “[c]onscripting or enlisting children under the age of fifteen […] or using them to participate actively in hostilities”. Neither the Statute nor the Rules of Procedure and Evidence provide much guidance about the activities which might constitute active use. Restricting the definition of active use to children who are engaged in combat insufficiently reflects the role of children in armed conflict. At the same time, drawing the line between, on the one hand, indirect active use and, on the other hand, participation which is not actively linked to the armed conflict is not straightforward.

The direct and active use conundrum in IHL and ICL

Under International Humanitarian Law (IHL), the participation of children in hostilities was first regulated under the Additional Protocols to the Geneva Conventions. Article 77(2)  of Additional Protocol I (AP I) obliges States to take “all feasible measures” to ensure that children under 15 are not recruited into the armed forces and “do not take a direct part in hostilities”, while Article 4(3)(c) of Additional Protocol II (AP II) prohibited the recruitment of children and provided that they “shall […][not be] allowed to take part in hostilities”.

Under International Human Rights Law (IHRL), Article 38 of the Convention on the Rights of the Child echoes the provision in API on children’s direct participation in hostilities. The Optional Protocol  to the Convention on the Rights of the Child on the involvement of children in armed conflict has a similar provision and also stipulates that non-state armed groups “should not[…]use in hostilities persons under the age of 18 years.

Under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, and the Article 4(c) of the Statute for the Special Court of Sierra Leone, reference is made to the active use of children in hostilities rather than their direct participation or participation/use (generally) referred to under IHL and IHRL instruments.

The divergence in the language has created some confusion regarding whether there is a distinction between direct use and active use of children. Since the Rome Statute does not provide any guidance, the Trial Chamber in Lubanga, echoing an earlier decision of the SCSL in the AFRC case, turned, inter alia, to the travaux préparatoires. In particular, it referred to a footnote in the Zutphen Draft which noted that:

“[t]he words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation”

The Chamber, therefore, held that active participation was “clearly intended” to be wider than direct use and would include using children “in a myriad of roles that support the combatants”.[4] The Trial Chamber in Katanga and the Pre-Trial Chamber in Ntaganda followed this approach.[5]

Trial Chamber I was strongly criticised for its juxtaposition of “active participation” under Article 8 of the Statute and “direct participation” under AP I. The concept of direct and active participation is not only found in the provisions of child soldiers; it is a crucial element of the principle of distinction. In particular, Article 51(2) of AP I and Article 13(3) of AP II provide for the protection of civilians who are not taking direct part in hostilities, while Common Article 3 to the Geneva Conventions protects those “taking no active part in the hostilities”. It has been argued that both terms are used interchangeably in IHL and the Trial Chamber’s distinction between active and direct participation was incorrect. Moreover, it was argued that a wide interpretation of active participation might negatively impact the protection of civilians under Common Article 3 of the Geneva Conventions and Article 8(c) of the Rome Statute. In a similar vein, it was argued that if under the Rome Statute, direct participation is construed very narrowly, an attack on persons who are directly participating (in the broader sense under the IHL definition) could be considered legal under IHL but illegal under the definition adopted at the ICC.[6]

The Appeals Chamber disagreed with Trial Chamber I’s distinction and observed that, under Common Article 3 of the Geneva Conventions, the terms active and direct are interchangeable.[7] At the same time, the Appeal’s Chamber held that the Court is not bound to apply the same definitions of active or direct participation in the context of the principle of distinction for the purposes of determining whether children’s contribution to an armed conflict constitutes active participation.[8]

The Appeals Chamber held that despite the difference in terminology, the provisions in AP I and the CRC, which prohibit the direct use of children, and that under APII, which prohibits the use of children, are all clearly aimed at ensuring that children are not involved in the conflict.[9] While the terminology related to the principle of distinction is similar, the context is different; therefore, the interpretation of the “active use” of children in hostilities should reflect this specific purpose in its own right.[10] In taking this approach, the Appeals Chamber has severed the interdependence of the interpretation of direct/active participation in the context of child soldiers from that associated with the principle of distinction. While it might be argued that this may lead to a fragmentation of the notion of active and direct participation within the Statute, it could be suggested that this approach manages to strike the right balance between the interests of the child (which are best protected under a wider interpretation of active participation), the protection of civilians (who benefit from a more restrictive interpretation of active/direct participation), and the rights of the accused (whose liability might be extended, if the Trial Chamber’s restrictive interpretation of direct participation were applied to the principle of distinction).

Reversal of the risk-based approach to indirect participation

In identifying whether children are being used actively in hostilities, the difficulty lies in determining what acts, beyond direct engagement in combat, are prohibited. The Trial Chamber deviated from the approach at the SCSL of listing specific acts which might constitute active use, relying instead on a case-by-case assessment.

While the Trial Chamber nodded to the requirement in the Rules of Procedure and Evidence that a link with the conflict is required,[11] it established that “the decisive factor […]in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target”.[12] The Trial Chamber, therefore, determined that it was a combination of the “child’s support” and the “level of consequential risk” that rendered them actively, if indirectly, involved in the hostilities.

Following the Judgment, this approach did find some support because of the wide safety net it provided for children. However, the Appeals Chamber rejected the risk-based approach, stating that neither provisions in the Statute, nor the corresponding IHL principles link the determination of active participation of children to the element of risk.[13] Instead, the Appeals Chamber focused exclusively on the nexus between the hostilities and the activities performed by the child. It maintained that although the level of risk a child is exposed to might be indicative of the relationship between the activity and the conflict, it could not replace the determination based on the nexus to the conflict itself.[14]

It is noteworthy that although the Appeals Chamber disagreed with the Trial Chamber’s theoretical approach, it did find that, in most of the activities upon which the Trial Chamber based its conviction, the nexus requirement was actually fulfilled. In the light of “the complex and unforeseeable scenarios presented by the rapidly changing face of warfare”, the Appeals Chamber also confirmed the case-by-case determination favoured by the majority in the Trial Chamber.[15]

In conclusion, while the Appeals Chamber has reframed the definition of “active use” in relation to child soldiers, it did not overturn the Trial Chamber’s findings of guilt. Its views will, however, undoubtedly shape the normative development of the crime. The Trial Chamber will have the opportunity to consider Article 8(2)(e)(vii) again in the case against Bosco Ntaganda which is set to start in June 2015.


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Waiting for the judgment in the Lambert case: end-of-life situations in the case law of the European Court of Human Rights

Introduction

The European Court of Human Rights conceives the European Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[1] Accordingly, ‘the Court cannot overlook the marked changes…[occurring] in the domestic law of the member States’, [2] and may vary its evaluation as to the infringement of ‘new’ human rights. The activism of Strasbourg judges is often restrained by the need to justify the extension of the Convention provisions to its Member States. Thus, a long set of judgments is usually required before the final recognition of the need to protect a right that was not previously recognized by the Court”.[3] These judgments also have the function of defining the extent of the ‘new’ human right.

The present post focuses on the position of the European Court of Human Rights towards end-of-life situations (encompassing very different practices, from active euthanasia and assisted suicide to the choice of discontinuing artificial nutrition and hydration, or passive euthanasia; from cases in which the person involved has freely chosen to die, as well as cases in which a person is not able to take a decision in this regard). Obviously, end-of-life situations represent a very complicated phenomenon, involving not only the law, but also moral choices and values. What is certain is that nowadays, there is an increasing number of cases in which people ask for a recognition of their ‘right’ to die with dignity. However, only some Member States of the ECHR have addressed this issue through domestic law. Accordingly, in many Member States, the choices connected to end-of-life situations are dealt with by the judiciary, and this is evident from the increase in applications to domestic or international judges on the broad area of “euthanasia”.

End-of-life situations are a good example of the new ‘present-day conditions’ in need of legal regulation. The European Court of Human Rights is involved in this process; however, its position is difficult, as there is no clear consensus among the Member States on the topic. Thus, the Court is striving to find a balance between an evolutive interpretation of the ECHR and the lack of a shared ‘European consensus’ on the topic. A case involving passive euthanasia is currently pending before the European Court of Human Rights,[4] and the first hearing is going to take place on 14 January 2015. This post wishes to briefly examine the Court’s position on end-of-life situations in a number of cases preceding this pending case.

ECtHR case law on end-of-life situations

The lack of consensus among Member States on end-of-life situations was at the basis of the Court’s first relevant decision on the topic. The case was that of Mrs Pretty, a British national suffering from an incurable, degenerative disease, who wanted to end her life.[5] Her disease did not allow her to commit suicide: however, if her husband helped her in committing suicide, he could face prosecution under English law. The applicant argued that Article 2 ECHR not only protects the right to life, but it also entails the right to choose whether or not to go on living. The European Court dismissed the claim, concluding that the right to life could not ‘without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die’.[6] The applicant further argued that, under Article 3 ECHR, Member States have an obligation to refrain from torture or inhuman and degrading treatment, as well as an obligation to protect their citizens from similar sufferings. The European Court stated that the applicant’s claim placed ‘a new and extended construction on the concept of [inhuman and degrading] treatment, which…goes beyond the ordinary meaning of words’. The Court stressed the need to interpret Article 3 ECHR ‘in harmony’ with Article 2 ECHR, and concluded that no obligation arose requiring the respondent state not to prosecute the applicant’s husband for assisting her to commit suicide.[7] The applicant also argued that Article 8 ECHR includes the right to self-determination, and thus the right to choose when and how to die. Interestingly, the Court stated that it was ‘not prepared to exclude’ that there had been an interference with the applicant’s right to respect for private life.[8] However, it noted that the interference fell within the legitimate area of discretion of the respondent State.[9] Thus, the Court held unanimously that there had been no violation of any Articles of the Convention.

The Court’s positive outlook towards the potential applicability of Article 8 ECHR to end-of-life situations cases has been reaffirmed by a 2013 Chamber judgment, in the case of Gross v Switzerland. The judgment is now deprived of its legal effect by a Grand Chamber ruling;[10] however, it is still an interesting sample of how the ‘free choice of how to die’ may be a developing human right in the ECHR system.

The case was that of Ms Gross, an elderly woman wishing to end her life by reason of the continuing decline of her physical and mental faculties, caused by old age. The case thus dealt with a peculiar situation, since even though Ms Gross had the physical ability to commit suicide, she claimed her entitlement to a painless and “safe” death. Unlike other Member States of the ECHR, Switzerland regulates assisted suicide. According to the Federal Supreme Court’s case law, physicians are exempted from criminal liability when performing assisted suicide in accordance with the Swiss medical ethics guidelines. These guidelines require, among other conditions, that the patient is suffering from an illness that will lead to “death within a matter of days or a few weeks”. This was not the case of Ms Gross. Thus, even if her ability to form a reasoned and well-considered choice on suicide had been attested by a psychiatric examination, her request to be given a prescription for sodium pentobarbital had been declined by Swiss physicians. Her appeals to obtain an exemption from the need of a prescription had been rejected by the Federal Supreme Court. On that occasion, the Swiss Court had also assessed that the State had no positive obligation, under the European Convention, to grant its citizens an undetermined right to die; and that since another case on the same issue (Haas v Switzerland) was under the scrutiny of the European Court, it was up to that Court to determine whether the Swiss legislation was compatible with the European Convention. Thus, Ms Gross applied to the European Court of Human Rights, and her claim focused particularly on an alleged violation of Article 8 ECHR, protecting the right to private life.

The Strasbourg Court agreed that the applicant’s claim fell within the scope of Article 8 ECHR, something that was not surprising since the Court’s previous case law on assisted suicide had already cleared the path for this option. Nevertheless, the Court departed from its previous case-law by deciding to analyse Mrs Gross’s case from a new (and unexpected) perspective: that of legal certainty. The Court held that, since the Swiss medical ethical guidelines apply only to patients suffering from an incurable and deadly illness, the situation of people in Mrs Gross’s state was not regulated by Swiss law. Accordingly, this lack of regulation was likely to cause “a chilling effect on doctors”, and a “considerable degree of anguish” on people in the applicant’s state. The Court thus concluded that the Swiss law, even though it provides the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does not provide sufficient guidelines ensuring clarity as to the extent of this right. On this basis, the Chamber acknowledged that a violation of Article 8 of the Convention had occurred. The Court carefully pointed out that its conclusions related only to the absence of clear and comprehensive legal guidelines, without in any way taking up a stance on their substantive content.

Waiting for the Court’s decision in Lambert

As noted, a case involving passive euthanasia is currently pending before the European Court of Human Rights. The case originated in a road-traffic accident, as a result of which a French citizen, Mr Lambert, is tetraplegic and in a vegetative state. The decision of suspending his artificial nutrition and hydration, taken by French judicial authorities in accordance with the French law, has been contested by some of Mr Lambert’s relatives. The applicants claim that it represents an infringement of Articles 2, 3, 6 and 8 ECHR.

This case is completely different from the ones analysed above, as it involves a person who is not capable of expressing his will. Thus, it is more in line with a complaint under Article 2 ECHR, or with Article 3 ECHR, rather than with a complaint grounded on Article 8 ECHR. For this reason, it could be a good occasion for the Strasbourg Court to review, or to reaffirm, its previous position on two important aspects, namely positive obligations descending from Article 3 ECHR, and negative obligations descending from Article 2 ECHR. As the consensus among Member States on euthanasia is still scarce, it is likely that the Court will not depart from the positions expressed in Pretty. However, this could be the chance for the Court to promote a more activist position, thus reaffirming its role of interpreter of present-day conditions on human rights. [11]

 

 

 

 

 

[1] Tyrer v the UK (1978) Series A no 26, par 31, Marckx v Belgium (1979) Series A no 31 par 41

[2]   Dudgeon v the UK (1981) Series A no 45, par 23

[3] See e.g. the evolution of the ECtHR’s case law on transsexuals’ rights, from Rees v UK to Goodwin v UK

[4] Lambert and Others v France,  App 46043/14, 23 June 2013, referred to the Grand Chamber in November 2014

[5] Pretty v UK, ECHR 2002-III

[6] Ibidem

[7] Pretty v UK, par 56

[8] Pretty v UK, par 71

[9] Ibidem

[10] Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[11] An International Law Blog is going to be updated following the developments of the Strasbourg case law in Lambert v France

 

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Filed under Public International Law

The Union of Comoros’s atypical referral to the International Criminal Court and the Office of the Prosecutor’s cryptic decision to end the preliminary examination on the Flotilla raid.

Introduction

On 6 November 2014, the Office of the Prosecutor of the International Criminal Court (‘‘The Court’’) announced its decision to close the preliminary examination into the situation in Union of Comoros (‘’Comoros’’). After her office conducted a thorough ‘legal and factual analysis of the information available’, the Chief Prosecutor Fatou Bensouda concluded that ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’

Concurrent to the statement, the Office of the Prosecutor published a detailed article 53 (1) report on the Situation on Registered Vessels of Comoros, Greece and Cambodia, outlining the reasons for its decision. In her statement, Prosecutor Bensouda also recalled that the Comoros could request the Pre-Trial Chamber judges to review her decision. Although this is legally permissible under article 53(3)(a) of the Rome Statute, it has to be said that the powers of judicial review on prosecutorial decisions are limited, particularly when it is either  the Security Council or the State Party requesting  for a review of the  Prosecution’s decision.[1] Article 53(3) (a) does not categorically  provide that when either a State Party or the United Nations Security Council requests a judicial review of the prosecutor’s decision, the judges could overturn such a decision and order the prosecutor to open an investigation. All that the judges can do is to request the Prosecutor to reconsider the original decision. There is no provision within the Rome Statute to suggest any course of action to be taken in the event that the Prosecutor maintains the original stance not to proceed. Nonetheless, the situation would be different if the Pre-Trial Chamber decides to act on its own initiative, which is legally possible only if the prosecutor’s decision not proceed is based on gravity of the crime and the interest of justice. Under such circumstances the Prosecutor’s decision would be tied to the outcome of the Pre-Trial Chamber review process.

Consequently if the Comoros were to request the judges to review the decision as suggested by the Prosecutor, the Prosecutor could simply maintain her stance without being compelled to give in to some form of external pressure to alter it. The rationale for such approach in the Rome Statute is to ensure that the Office of the Prosecutor enjoys institutional independence from other organs of the Court. Still such an approach makes the Office of the Prosecutor susceptible to external criticism of unjust selective enforcement of international criminal law.

An Atypical Referral

On 14 May 2013, Elmadag Law Firm, a Turkish firm acting on behalf of the Comoros, filed an application under articles 14 and 12 (2) of the Rome Statute. The application referred the Israeli Defence Forces’ raid on the Humanitarian Aid Flotilla (bound for the Gaza Strip) to the Court. The application was filed three years after the raid in which a total of ten passengers (the majority of who were of Turkish nationality) were killed, and several others were injured.  Israeli military personal were also injured in the process.  While Comoros is a State Party to the Rome Statute, both Turkey, whose nationals were direct victims of the attack, and Israel, the perpetrators of alleged atrocity crimes,[2] are non-Party States.

Comoros’ involvement in this referral is linked to the fact that the alleged war crimes occurred on the Mavi Marmara, a vessel that was registered in, and flew the flag of the Comoros at the time of the incident. Thus, in accordance with article 12 (2) (a) of the Rome Statute, since Comoros was the state of registration of the vessel, the Court could exercise its jurisdiction based on the principle of territoriality. As a matter of fact the referral highlights the potential that the Rome Statute has to protect States Parties from aggressive actions and policies of non-Party States actors. It is also evident from this particular referral that the jurisdictional regime of the Court could even be useful in protecting the nationals of non-Party States if they are victims of atrocity crimes committed in the territory of a State Party.

What is more interesting however, is whether the relationship between Mavi Marmara and Comoros satisfies the threshold of ‘genuine link’, required under international maritime law, for the vessel to be considered a territory where Comoros actually exercised effective control at the time of the raid. Article 12(2) (a), which gives the Court territorial jurisdiction to vessels of States Parties is linked to article 5 of the (1958) Convention on the High Seas and article 91 of the 1982 United Nations Convection on the Law of The Sea. These two treaties assert that ‘Ships have the nationality of the State whose flag they are entitled to fly’. In addition, there is a requirement that ‘there must exist a genuine link between the State and the ship. The 1958 Convention elaborates on what genuine links means which is that; ‘the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.[3] This explanation of what genuine link means was dropped in the 1984 United Nations Convention which has  made the interpretation of such a ‘well-established rule of international law’ very debatable and unsettled.[4]

The emerging trend in the case law of both the International Court of Justice and International Tribunal for the Law of the Sea, appears to suggest that registration is an adequate indicator for establishing genuine link.[5] That said, and for the purposes of exercising international criminal jurisdiction under the Rome Statute additional indicators might be necessary for establishing genuine link. For instance when the Prosecutor assesses admissibility of situations, under complementarity principle he or she must be able to establish whether the State with jurisdiction over the vessel is unable or unwilling to investigate or prosecute those responsible. This means establishing more than just the registration of a vessel but also that the state of registration can actually exercise effective control over the vessel including exercising its sovereign right to administer criminal justice.

The problem arises from the fact that, although, as highlighted already, the Mavi Marmara was flying the Comoros flag the vessel was only registered in the Comoros on 22 May 2010, just a week before the raid occurred on the 31 May 2010. This poses some questions as to whether that was enough to establish ‘genuine link’ between the State and the vessel. In addition, at the time of raid, the vessel was owned by the Foundation for Human Rights, Freedoms and Humanitarian Relief (IHH), a Turkish registered humanitarian non-governmental organisation. There are also reports that by August 2011 the registration of the vessel had already been transferred back to Turkey.  It is unfortunate that we will probably not get to know the Office of the Prosecutor and the Chambers’ interpretation of the threshold for establishing whether genuine link between state and vessels in this situation as the preliminary examination was closed.

Cryptic Decision

The Prosecutor’s report on the Comoros’ preliminary examination decision made a somewhat circumspect reference to the broader Palestinian-Israeli conflict and the related atrocities crimes committed for instance in the Gaza Strip. The report indicated that the Court lacked jurisdiction over ‘other alleged crimes committed in the context of the conflict between Israel and Hamas and in the broader context of any conflict between Israel and Palestine’. It is this author’s view that what lies behind this reference by the Prosecutor to the broader conflict between Israel and Palestine, is the hope by the prosecutor that the Palestinian Authority ratify the Rome Statute. This would give the Court broader jurisdiction than the one encompassed in the Comoros referral.

The uncertainty over the ability of Palestine to ratify the Rome Statute and adopt a declaration accepting the jurisdiction of the Court was removed in 2012, when the United Nations General Assembly granted Palestine the status of non-Member Observer State which arguably opened the way for it to ratify the Rome Statute. Since the United Nations General Assembly’s decision, Chief Prosecutor Bensouda has, on several occasions, suggested that the Palestinian Authority could either ratify the Rome Statute or could refer war crimes in its territory to the Court. The Palestinian Authorities have, on occasion, hinted at joining the Court, for instance, after the most recent Gaza war in 2014. However they have not yet provided a clear timetable for doing so. Perhaps this decision by the Prosecutor will act as another catalyst for the Palestinian Authority to expedite their ratification of the Rome Statute.

Such a step would not only extend the jurisdiction of the Court to foreign actors on Palestinian territory i.e. Israel, it would also mean the Court could investigate the alleged atrocities committed by Palestinians agencies such as Hamas. In the meantime the impunity gap that seems to exist in the Occupied Palestine Territories could be closed either through universal jurisdiction or by the Israeli authorities investigating and prosecuting those responsible.

The fact that the Prosecutor established that war crimes were committed during the raid, could stimulate the search for  alternative  avenues for seeking accountability through domestic mechanism whether in Israel or any states exercising universal jurisdiction

Conclusion

The circumstances surrounding the Comoros’ referral raise interesting questions. Primarily it reveals the interconnection of two different branches of international law: international criminal law and international law of the sea.  It is unfortunate that the circumstances  denies us of an opportunity to learn how, if at all, the Court might interpret the legal requirement of having a ‘genuine link’ between the flag state and the vessel under the Convention on the Law of the Sea. Secondly, the timing of referral points to the lack of consensus among African States on how to relate with the Court. Finally, the decision by the Prosecutor suggests that the best way that the Palestinian Authority can benefit from the protective shield of the Rome Statute is by becoming a State Party. However, due to the implications of this on all parties involved, this is quite contentious.


[1] Stahn C., (2009) ‘ Judicial Review of Prosecutorial Discretion: Five Years On’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court, Leiden, Martins Nijhoff Publishers at p. 255

[2]  A modern term introduced by David Scheffer to describe particular heinous crimes suitable for criminal prosecution before international tribunals and special national courts. Scheffer D., (2010) All The Missing Souls –A Personal History of the War Crimes Tribunals, Princeton , Princeton University Press at p. 429

[3] Convention of the High Seas (1958), Article 5

[4] See Attard, D. & Mallia P., (2014)’ The High Seas’, in Attard, D. Fitzmaurice, M., & Gutierrez. N, A. M (eds) The IMLI Manual on International Maritime Law: Volume 1: The Law of The Sea. Oxford: Oxford University Press, pp 248-255.

[5] Ibid

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