Monthly Archives: March 2016

Perinçek vs. Switzerland on the backstage: the majority approach and the separate opinion of Judge Nussberger.

 

  1. Introduction.

On the 15th of October 2015 the Grand Chamber of the European Court of Human Rights (the Court) issued its second instance judgment in the case of Perinçek v. Switzerland. This judgment has the potential to play a central role in the Court’s case law on Article 10 of the European Convention on Human Rights (the Convention), relating to freedom of expression, as well as contributing to the wider cultural and historical debate about the sensitive issue of genocide denial.

This post will focus, in particular, on the main conclusions of the judgment and the partly concurring and partly dissenting opinion of Judge Nussberger, who contested the points in the judgment that this post will highlight as the most interesting.

2. The facts.

The case originated from the application of a Turkish national, Mr. Dogu Perinçek, a doctor of laws and the chairman of the Turkish Workers Party. During several conferences in Swizterland, the applicant publicly denied that the mass atrocities perpetrated by the Ottoman Administration in 1915 against Armenians amounted to genocide. While Mr Perincek did not deny that killings and deportations took place, he contested the legal characterisation of the acts as “genocide” and defined the term “Armenian genocide” as an “international lie”. However, on the basis of his statements, he was found guilty of “racial discrimination” under Article 261bis para 4 of the Swiss Criminal Code and he was convicted. The Chamber and the Grand Chamber, albeit on the basis of partly different reasons, held that the conviction and the associated punishment constituted a disproportionate interference with the exercise of his right to freedom of expression and violated Article 10 of the Convention. However, it is noteworthy that both Chambers also underlined the fact that their decisions did not have any implications on the ongoing debate regarding whether the massacres and deportations of the Armenians legally constituted genocide.

3. The application of Article 10 para 2: the Grand Chamber between legal concepts and historical debate.

In its judgment, the Grand Chamber tries to avoid touching upon certain sensitive issues which are not strictly relevant to its decision (such as whether the massacres constituted genocide).[1] Nevertheless, the case has raised several interesting issues, although only some of them can be qualified as legal problems, strictly speaking.[2]

The Court first analysed whether the interference with Article 10 of the Convention was lawful and had a legitimate aim (a); then, it assessed whether it was necessary in a democratic society (b).

In the course of analysing whether the interference was lawful and pursued a legitimate aim, the following controversial issues emerged: the foreseeability of both the norm and the criminal penalty, where the Court found that the approach of the Swiss authorities could reasonably be expected;[3] the definition of the “prevention of disorder” (partly contrasting with the wider concept of the “interest of public order), in regard to which it found no evidence that, at the time that they were made, the applicant’s statements were perceived by the Swiss authorities as a means of aggression capable of leading to public disturbances, in spite of the presence of both Armenian and Turkish communities in Switzerland; [4] and the protection of the rights of others (the contemporary Armenians), which the Court accepted as a justification for an interference of the applicant’s freedom of expression (the same could not be said for the protection of the honour of the victims).[5]

The Court finds that the criminal conviction of the applicant represented an unfair interference (unnecessary in a democratic society) with his freedom of expression and violated Article 10 of the Convention.

Under the Convention, the existence of a pressing social need for the interference must be balanced against the protection of the Armenian community’s rights covered by Article 8 and the right to freedom of expression.[6] In order to determine that the acts of the Swiss government were proportionate and, therefore, constituted the permissible interference with the right protected by Article 10, a link between the conviction of the applicant and the protection of the dignity of the Armenian community in general should have been established. Even if the Armenian community had possibly built its identity also based on the qualification of Armenian people as victims of mass atrocities (whose protection is consonant with the universal protection of human rights), there was no evidence that the above-mentioned link existed in the current case.[7]

Two points, among others, in the final part of the Court’s reasoning deserve particular attention.

The evaluation of the context of the interference: historical, geographical and time factors.              

The Court evaluated the geographical and historical context in which the statements were made. This stage of the reasoning inevitably involved a comparison with the phenomenon of Holocaust denial in western democracies, an issue consistently present in the background of the judgment.[8]

The Court found that the historical experience of each country must play a central role in the determination of the social and moral responsibility of States to outlaw mass atrocity denial; at this point, it is worth highlighting which public statements (and other forms of expression) are actually incompatible with democracy and human rights and, for that reason, not protected by the Article 10 of the Convention.[9] While the phenomenon of Holocaust denial in European countries had been considered extremely dangerous for the protection of the identities, because of the risk of a resurgence of racial discrimination and anti–Semitism, the Court apparently did not find this to be the case in relation to the facts related to the Armenian massacre in Switzerland in the 21st century. Although the Armenian community in Switzerland was in open disagreement with the view of the Turkish community about the legal characterisation of the 1915 events, this did not increase the risk of creating a tense atmosphere or of other dangerous consequences, such as, the promotion of racism and an antidemocratic agenda.[10] The Court also remarked that due to the considerably long time lapse between the historical events and Perinçek’s statements, it would be inappropriate to deal with them severely.[11]

The international law obligation to criminalise genocide denial. 

The Court was then called to determine whether or not the interference by the Swiss authorities could have been justified by an obligation to criminalise genocide denial under international law. In this respect, it did not find any international legislative tool (among treaties or customary law) which could reasonably create a binding international law obligation. According to the UN Human Rights Committee, the relevant provisions of the ICCPR provide that, unless the conduct, was incompatible with the prohibition of incitement to violence, hatred and racial discrimination, the freedom of expression and of opinion must be always guaranteed and protected. [12]

4. The partly concurring and partly dissenting opinion of Judge Nussberger.

In her separate (partly concurring and partly dissenting) opinion, Judge Nussberger interestingly challenged one of the main conclusions of the Court.[13] While she accepted the main conclusion on the violation of Article 10 of the Convention, even if by following a different pathway, she rejected the majority approach, contesting the unreasonable distinction between Holocaust denial and the denial of the Armenian genocide, as well as the weakness of the “geographical factor” and the “time lapse” arguments.

Judge Nussberger affirmed that it appeared to be unclear why only those sanctions imposed by the State Parties for the Holocaust denial have been considered compatible with the spirit and the provisions of the Convention. In order to justify the criminalization of its denial, the Court had referred to the notion of public order needs (that is, prevention of the incitement to violence and racial discrimination) and the historical and geographical links between the Nazi crimes and the duty of the States that had been affected, to criminalise its denial . Judge Nussberger rejected this approach, stating that these factors could lead to the wrong conclusion that it is only those States directly involved in mass atrocities and/ or genocide have the moral responsibility to distance themselves from these events.[14]

Notwithstanding the judgment’s consistent argument that there exists no international law obligation to criminalise genocide denial, the doubts created by the ineluctable comparison with Holocaust denial cannot be ignored, especially because of two elements: first, the arguments based on the ‘geographical’ factor and ‘time lapse’ do not appear to be strong enough to defend against the clear discrepancy in the way the denial of two mass atrocities of the 20th century are treated; second, the debate on the legal qualification of (and also on the search of the historical truth about)  the Armenian events of 1915 has gained a central position in the international arena which ought not to be difficulty underestimated.

5. Conclusion.

 At the end of this brief overview of the main controversial points of the final judgment in Perinçek, one could conclude that, despite several attempts at reaching a consistent and strictly legal solution to the case, the judgment has an undeniable impact on the cultural debate that cannot be overlooked.

The reasoning of the Court has offered the opportunity to reflect on some matters which emerged from the sensitive comparison with Holocaust denial, namely: first, the need to balance the freedom of the expression with the risk of compromising the public order, as well as, the sense of identity of individuals and communities, which gave an interesting point of view about protection of minorities’ rights and its link with the prevention of public disorder; second, the importance of considering both time and the historical factors when evaluating whether, in accordance with the spirit of universal protection of human rights, a duty the States to criminalise mass atrocities denial does exist.

 

[1] Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015) § 100 – 102.

[2] The G.C. dealt with the position of the Court regarding the “Historical debates” from para. 213 to para. 220 of the judgment.

[3] This is particularly in view of the Swiss National Council’s 2003 motion recognising the 1915 events as genocide..

[4]Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), § 148 – 154.

[5] Although the applicant’s statements did not aim to direct the accusation of the Armenian genocide “as international lie” towards the victims, his definition of Armenians as “instruments of the imperialism” could be seen as affecting the dignity of the Armenians, therefore justifying interference with his right to freedom of expression.

[6] In determining whether the decisions of the authorities were compatible with the Convention, the margin of appreciation of the national Courts in their jurisdictions must be evaluated case by case

[7] In addition, in terms of the possible remedies that could have been adopted to interfere with the right to freedom of expression (e.g. the civil remedies) within the marginal of appreciation of the Swiss authorities, the criminal conviction certainly appears to be the most serious form of interference and that has resulted in the lack of proportionality.

[8] Paras 209 – 220.

[9]  See X. v. The Federal Republic of Germany, no. 9235/1981, Commission decision of 16 july 1982, Decision and reports (DR) 29, p. 194; Marais v. France, no. 31159/96, Commission decision of 24 june1996, DR 86- B, p. 184; Witzsch v. Germany app. No. 41448/98 (ECtHR 20 April 1999), Gollnisch v. France app.no. 48135/08 (ECtHR 7 June 2011).

[10] The situation might have been different judged in a country where the hostility between the communities could have provoked hatred towards the Armenians or could have otherwise impacted the protection of the rights of the minority.

[11] About the likelihood that controversial remarks about historical facts could bring back memories of past suffering see among others Editions Plon v. France, app. No. 58148/2000 (ECtHR 2004 – IV) and Hachette Filipacchi Associes v. France, app. no. 7111/01 (ECtHR 14 June 2007).

[12]  CCPR/C/GC/34, 102nd session of the UN Human Rights Committee.

[13] The judgment also has a Joint dissenting opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris and an Additional dissenting opinion of Judge Silvis, joined by Casadevall, Berro and Kuris.

[14] Then, to support this affirmation, he added that “to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place is consonant with the spirit of the universal protection of human rights and wholly sufficient to justify legislation of this kind” in Judge Nussberger, separate opinion, in Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), recalls at S.A.S. v. France (GC) (ECtHR 2014), § 153.

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The European Court of Human Rights decision in Nasr and Ghali v. Italy: Impunity for Enforced Disappearance in Milan

Introduction

On 23 February 2016 the Chamber of the European Court of Human Rights (ECtHR, the Court) issued a judgment in the case of Nasr and Ghali v. Italy. The Court unanimously found Italy responsible for violations of Article 3 of the European Convention of Human Rights (ECHR) (prohibition of torture and inhuman or degrading treatment), Article 8 ECHR (right to respect for private and family life), Article 13 ECHR (right to an effective remedy) with respect to both applicants, and of Article 5 (right to liberty and security) with respect to Mr Nasr.

The Egyptian national Hassan Mustafa Osama Nasr, aka Abu Omar, was granted asylum in Italy and settled in Milan, where he married Ms Ghali. On 17 February 2003 he was kidnapped by a team of agents of the U.S. Central Intelligence Agency, with the cooperation of Italian agents. Leaving from the Aviano U.S. air base, he was transferred, through the Ramstein US air base in Germany, to Egypt, where he was secretly detained and tortured for over 12 months. He was released on 19 April 2004, when he contacted his wife and stated his version of the events. The details of the abduction were later confirmed by proceedings before Italian courts. The Italian judiciary was able to establish the facts, but not to fully dispense justice and prosecute those responsible, because of the shield of state secrecy imposed by the Italian Government. Mr Nasr’s kidnapping is an example of the post-9/11 counter-terrorism practice of “extraordinary renditions”, which, as argued below, can be characterized as enforced disappearances.

This analysis aims to contextualise Nasr and Ghali v. Italy in the broader jurisprudence of the extraordinary renditions cases examined before the ECtHR, while focusing on the findings of the case at stake concerning the responsibility of Italian institutions (namely, the Government, Chief of State and Constitutional Court) in providing impunity to those responsible. Furthermore, it will examine the practice of extraordinary renditions in international law, to establish whether the case can fit the definition of enforced disappearance, and how this could enhance the protection of renditions victims.

Extraordinary Renditions Before the ECtHR

“Extraordinary rendition” refers to the illegal arrests and secret transfers of alleged terrorists from the countries of arrest to black sites, where detainees are subjected to interrogations which include torture or inhuman or degrading treatments. The U.S. carry out extraordinary renditions with the cooperation of several states, with the aim to question “high value detainees” through “enhanced interrogation techniques” that could not be performed on U.S. soil. The practice is secret and, notwithstanding documentation by NGOs and institutions,[1] its details remain largely unknown. It apparently started in the aftermath of 11 September 2001 and was limited, but not abolished, by the Obama Administration with the “Ensuring Lawful Interrogations” Executive Order of 22 January 2009. Within the context of the current electoral debate, Presidential candidates express various and inconsistent opinions about such practice.

Before Nasr and Ghali, the ECtHR had handed down two decisions relating to extraordinary renditions. First, in the 2012 case of El-Masri v. “The former Yugoslav Republic of Macedonia”, which concerned a German citizen, Khaled El Masri, who was arrested by CIA agents the night of 1 January 2004. He was detained in secret, in a Skopje hotel, for 3 weeks and then transferred to Kabul. He was released after 4 months of interrogations. The El Masri case is possibly the most blatant example of an erroneous rendition: the agents mistakenly believed to have arrested and questioned Khalid Al Masri, a person allegedly involved in the 9/11 attacks. The Grand Chamber held that such extraordinary rendition violated a combination of Articles of the European Convention: namely, Articles 3, 5, 8 and 13.

The second decision was issued in the case of Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and concerned a black site on European territory: Stare Kiejkuty facility. In addition to the violations of Articles 3, 5, 8 and 13 ECHR found in El Masri, the decision referred to Poland’s failure to cooperate with the Court in violation of its obligation under Article 38 ECHR. After the detention in Poland, furthermore, Al Nashiri was transferred to Guantanamo Bay, where he risked facing the death penalty, entailing the violation of Articles 2 (right to life) and 6 (right to a fair trial) of the European Convention, along with Article 1 (abolition of the death penalty) of Protocol No. 6 to the ECHR.

In the most recent Nasr and Ghali, Mr Nasr’s extraordinary rendition has been defined as “the most disturbing case” and “the most grotesque rendition”[2] because of the amount of evidence left by the agents involved.[3] A reporter defined the mission, which involved luxurious restaurants and hotels in Venice and Florence, as “La Dolce Vita War on Terror”. Since details of the operation were available to the prosecutor, and generally to the public, the Court (para 254) found that State secrecy was not relied on to genuinely protect sensitive information, but rather to grant impunity to those responsible. Differently from El Masri and Al Nashiri, the ECtHR (para 265) found that, in this case, domestic proceedings had already taken place, establishing the truth, identifying the persons responsible and securing their convictions (the 4 November 2009, the District Milano Court convicted 22 CIA agents in absentia). However, due the intervention of the executive, the judgments have not been enforced.

Various institutions have hindered judicial proceedings. First, the Italian Government, under successive Presidents, imposed State secrecy over the acts committed by the Italian intelligence agency (SISMI), shielding the agents involved in Nasr’s rendition. In addition, the ECtHR affirmed (para 270) that US agents never sought extraditions. Second, the Chiefs of State (namely, Presidents Napolitano and Mattarella) granted pardons to three US agents involved. Third, the Constitutional Court affirmed the supremacy of State secrecy over any other constitutional concern in two separate decisions (that is, decisions no. 106/2009 and no. 24/2014). In addition to the violations identified in earlier cases, the Court further held that the rendition constituted a treatment towards Ms Ghali, Mr Nasr’s wife, that violated Articles 3 and 8 ECHR.

Extraordinary Rendition in International Law: Possible Characterisation as Enforced Disappearance

Extraordinary rendition as such does not constitute a specific crime in international law. It can however fall within the legal definition of enforced disappearance. Enforced disappearances are defined by Article 7 of the Rome Statute of the International Criminal Court (ICC) relating to crimes against humanity. A broader definition is provided by Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (CED), entered into force in 2010, which reads as follows: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”. The United States, primary responsible for the practice, are not party to the ICC Statute and have not ratified the CED. Still, extraordinary renditions are perpetrated by nationals, and on the territory, of States that have ratified both instruments, which is the case of Italy.

As described above, extraordinary rendition entails the cumulative violation of a number of rights, in the course of a single, if complex, pattern of conduct. In the ECtHR case law, violated rights include the right to personal liberty and security, the respect for private and family life, the right to access effective remedy, and in certain cases, the right to life. Extraordinary rendition, furthermore, generally involves the perpetration of torture and other inhuman or degrading treatment, which is not a necessary element of the crime of enforced disappearance.

In Al Nashiri (para 520), the Court affirmed that “the rationale behind the program was specifically to remove those persons from any legal protection against torture and enforced disappearance”. In El Masri (par. 240),the Grand Chamber held that “the applicant abduction and detention amounted to ‘enforced disappearance’ as defined in international law”. In El Masri, the Court furthermore found another feature pertaining to enforced disappearances: the right to truth, which should not be obstructed by the concept of State secrecy (par. 191) and has both a private and public dimension.

The characterization of extraordinary renditions as enforced disappearances has various advantages in enhancing the protection of the victims. First, it provides a clear definition of an otherwise complex criminal conduct, which involves a combination of human rights violations; second, it excludes any possible derogation, including cases relating to national security, regularly alleged in these types of counter-terrorism operations; third, when it is contextualized as part of a widespread or systematic attack against a civilian population, it envisages the potential to define the practice as a crime against humanity. 

Conclusion

The decision of the Chamber in Nasr and Ghali v. Italy marked a remarkable step in addressing the issue of extraordinary renditions in Europe. The decision finds state secrecy, which had notably be confirmed by two judgements of the Italian Constitutional Court, not to be compatible with the rights protected by the European Convention. Finally, the possible characterisation of the conduct as enforced disappearance opens new avenues for a stronger protection of the victims of extraordinary renditions.

[1]              Council of Europe, Committee for Legal Affairs and Human Rights, “Secret detentions and unlawful inter-state transfers involving Council of Europe member states, 2007;  European Commission for Democracy Through Law; “Opinion on the International  Legal Obligation of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners”, 2006.  European Parliament, Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners, 2007; Amnesty International, Below The Radar, Secret flights to torture and ‘disappearance’, 2006; Human Rights Watch, The United States’ “Disappeared” The CIA’s Long-Term “Ghost Detainees”, 2004.

[2] “La più grottesca extraordinary rendition”, Claudio Fava, “Quei bravi ragazzi”, Sperling, 2007.

[3]Tullio Scovazzi, “Tortura e formalismi giuridici di basso profilo” in Rivista di diritto internazionale, 4, 2006.

 

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