Human Rights I: Principles/Institutions (RGMUIER015)
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Module
Human Rights I: Principles/Institutions (RGMUIER015)
Institution
Universiteit Utrecht (UU)
Week 1
• Mamatkulov & Askarov vs. Turkey
• E.R. and Others vs. Turkey
Week 2
• HRCtee General Comment No. 24 on reservations, 4 November 1994, CCPR/C/21/Rev.1/Add.6
• HRCtee, Sandra Lovelace vs. Canada,
• ECtHR, Refah Partisi and others vs. Turkey,
Week 3
• Kepa Urra Guridi ...
Human Rights I: Principles/Institutions (RGMUIER015)
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Case law
Week 1
Mamatkulov & Askarov vs. Turkey
E.R. and Others vs. Turkey
Week 2
HRCtee General Comment No. 24 on reservations, 4 November 1994, CCPR/C/21/Rev.1/Add.6
HRCtee, Sandra Lovelace vs. Canada,
ECtHR, Refah Partisi and others vs. Turkey,
Week 3
Kepa Urra Guridi vs. Spain
Week 4
General Assembly, Resolution 60/251, Human Rights Council, 3 April 2006
Human Rights Council, Resolution 5/1, Institution-building of the United Nations Human Rights
Council, 18 June 2007
Human Rights Council, Resolution 5/2, Code of Conduct for Special Procedures Mandate-holders
of the Human rights Council, 18 June 2007
Human Rights Council, Decision 6/102, Follow-up to Human Rights Council Resolution 5/1 -
General guidelines for the preparation of information under the Universal Periodic Review, 27
September 200
Human Rights Council Resolution 32/2, adopted 30 June 2016, Protection against violence and
discrimination based on sexual orientation and gender identity.
Week 5
Garçon & Nicot v. France
Conference of European Churches (CEC) vs. the Netherlands,
ECHR sexual orientation blog, “Strasbourg case law prevents success of same-sex marriage petition
in Northern Ireland”, posted 17 August 2017 [posted on blackboard]
Week 6
the African Charter on Human and Peoples’ Rights (ACHPR), adopted 1981, into force 21 October
1986
the Protocol to the ACHPR on the Establishment of an African Court on Human and Peoples’
Rights, adopted 1998, into force 2004
the American Declaration of the Rights and Duties of Man (ADRM), adopted 1948
the American Convention on Human Rights (ACHR), adopted 1969, into force 1978
Inter-American Court of Human Rights, Aloeboetoe et al vs. Suriname, summary of judgments
delivered on 4 December 1991 and 10 September 1993
African Court on Human and Peoples’ Rights, Femi Falana vs. The African Union (appl. No.
001/2011), summary of judgment delivered on 26 June 2012
CEDAW Committee General Recommendation no. 21 on Equality in marriage and family relations,
adopted during the thirteenth session 1994, UN Doc. A/49/38
Human Rights Committee General Comment no. 28 on Equality of rights between men and women
(article 3), 29/03/2000, CCPR/C/21/Rev.1/Add.10
Week 7
ECtHR, Nada vs. Switzerland [GC], (appl.no. 10593/08), 12 September 2012
ECtHR, Stichting Mothers of Srebrenica and Others vs. the Netherlands (appl.no. 65542/12), 11
June 2013
ECtHR, Jaloud vs. the Netherlands [GC], (appl.no. 47708/08), 20 November 2014
HRC, Bikramjit Singh vs. France, 4 February 2013, Comm.No. 1852/2008
ECtHR, Aktas vs. France (inadmissibility decision), Appl.No. 43563/08, 30 June 2009
Week 1
, Mamatkulov & Askarov vs. Turkey
The case involved two Uzbek nationals (applicants) who were extradited (uitgeleverd) to Uzbekistan by Turkey
after Uzbekistan claimed they had committed terror-related crimes, while the applicants countered that they
were political dissidents and would face ill-treatment and torture if returned. Mamatkulov arrived in Turkey on a
tourist visa, was arrested by the Turkish police at Istanbul Airport under an international arrest warrant, and
taken into custody on suspicion of various terrorist offences in Uzbekistan. Askarov entered turkey on a false
passport. Some months later, pursuant to an extradition request by Uzbekistan, he was arrested by the Turkish
police on suspicion of terrorist offences in Uzbekistan similar to those for which Mamatkulov was arrested. A
similar order was made for his detention pending extradition, also unsuccessfully appealed. They complained
about Turkey instead of Uzbekistan, because Uzbekistan is not a party to the ECHR. It makes sense to complain
about Turkey, because they were there when they fill their complaint.
Facing a threat of being extradited to Uzbekistan, the applicants lodged an application with the ECtHR.
Subsequently the President of the relevant Chamber of the Court decided to apply interim measures on the
Turkish Government, under Rule 39 of the Rules of Court. The Court held “that it was desirable in the interest
of the parties and of the smooth progress of the proceedings before the Court not to extradite the applicants to
Ubzekistan prior to the meeting of the competent Chamber.” (§24). In spite of the ordering of
interim measures, the applicants were extradited and handed over to the Uzbek authorities on 27 March 1999
(§27).
So, despite the Court ordering interim measures to defer, Turkey extradited both and they were sentenced to
terms of imprisonment. The Court found no violations of Article 2, 3 or 6 of the Convention for the protection
of Human Rights and Fundamental Freedoms, but did find a violation of Article 34 for Turkey’s non-
compliance with the interim measures.
After upholding its view on the non-binding nature of interim measures in subsequent cases, the Court
changed its point of view drastically in this case. The Court considered for the first time that a refusal by a State
party (Turkey) to comply with interim measures, ordered by the Court on the basis of Rule 39 of the Rules of
Court, constitutes a violation of Article 24 and that such measures are binding on Member States.
Decision & Reasoning:
1. Alleged Breach of Art. 2 and 3
Regarding alleged violation of Article 3, the Court was not able to conclude that substantial grounds existed on
the date of the extradition for believing that the applicants faced a real risk of treatment included in Article 3.
The Court found that while the applicants’ representatives presented reports of international human rights
organizations, such as Amnesty International, on the administrative practice of torture and other forms of ill-
treatment of political dissidents in Uzbekistan, these findings described only the general situation and did not
support the specific allegations made by the applicants. Because Turkey did not comply with the interim
measures that had been indicated by the Court under Rule 39, the Court assessed Turkey’s responsibility under
Art. 3 by reference to the situation obtained on 27 March 1999, as it could not speculate what would have
happened had the extradition been deferred as requested. In light of the material before the Court, the assurances
by the Uzbek government and medical reports from Uzbek prison doctors, it found that it could not conclude
that substantial grounds existed at this date for believing that the applicants faced a real risk of treatment
contrary to Art. 3. Consequently, no violation of Art. 3 was found, and therefore it was not necessary to examine
the allegations separately under Art. 2.
2. Alleged Breach of Art. 6 (1)
The applicants also complained that they had not had a fair hearing before the national Courts and therefore they
alleged a violation of Article 6(1). As for the extradition proceedings in Turkey, the Court reiterated that
decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s
civil rights or obligations or of a criminal charge against him, within the meaning of Art.6(1). Therefore, Art.
6(1) was not applicable.
As for the criminal proceedings in Uzbekistan, the Court considered that the risk of a flagrant denial of justice in
the country of destination must be assessed by the facts that the Contracting State knew or should have known
when it extradited the persons concerned. While on 27 March 1999 there may have been reasons for doubting if
the applicants would receive a fair trial in Uzbekistan, there was insufficient evidence to show that that such
reasons constituted a flagrant denial of justice. Therefore, no violation of Art. 6(1) was found.
, 3. Alleged Breach of Article 34
The applicants held that by extraditing them to Uzbekistan, despite the interim measures which had been
ordered by the Court under Rule 39 of the rules of the Court, Turkey had failed to comply with its obligations
under Article 34.
The Court noted that in practice it only applies interim measures under Rule 39 if there is an imminent risk of
irreparable damage; usually requests for its application concern Art. 2, 3, and exceptionally, 8. The Court found
that because of the extradition of the applicants to Uzbekistan, the level of protection which the Court was able
to afford the rights which the applicants were asserting under Art. 2 and 3 was irreversibly reduced. It
considered it implicit in the notion of effective exercise of the right of application that for the duration of the
proceedings the Court should remain able to examine the application under its normal procedure. Because the
applicants were extradited they lost contact with their lawyers and were denied an opportunity to have further
inquiries made in order for evidence in support of their allegations to be obtained, and thus the Court was
prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment.
The Court found that in light of the general principles of international law, the law of treaties and international
case-law, the interpretation of the scope of interim measures could not be dissociated from the proceedings to
which they relate or the decision on the merits they seek to protect. Whatever the legal system in question, the
proper administration of justice requires that no irreparable action can be taken while proceedings are pending
(see Soering). Under the Convention system, interim measures play a vital role in avoiding irreversible
situations and securing to the applicant, where appropriate, the practical and effective benefit of the rights
asserted. Therefore, failure by a respondent State to comply with interim measures would undermine the
effectiveness of the right to individual application guaranteed by Art. 34 and the State’s formal undertaking in
Art. 1 to protect the rights and freedoms set forth in the Convention. The Court found that it was prevented from
conducting a proper examination of the applicants’ complaints and ultimately from protecting them, if need be,
because of their extradition. It concluded that Turkey was therefore in breach of its obligations under Art. 34 by
failing to comply with the interim measures (§129).
E.R. and Others vs. Turkey
This case illustrates the tension between the principle of the subsidiarity and the trend in the Court’s case law
towards relaxation of procedural constraints on access to justice. The significance of the case lies in the relaxed
approach adopted by the ECtHR to the ‘exhaustion of domestic remedies’ rule (Article 35(1) and its
implications for the principle of subsidiarity. The case arose from the disappearance of a Kurdish man, Ahmet
Er, in turkey in 1995. The case before the Court concerned a series of claims arising out of his arrest and
detention (Article 5), disappearance and presumed loss of life (Article 2) and ill-treatment in custody by Turkish
gendarmes (Article 3). The significance of the case lies in the relaxed approach adopted by the eCtHR to the
‘exhaustion of domestic remedies’ rule (Article 35(1) and its implications for the principle of subsidiarity.
In this case, the critical issue for the Court was when the six-month clock should be taken to have started
ticking. Turkey submitted that it should be measured from the time that the Hakkari Civil Court certified Ahmet
Er’s presumption of death in May 2003. But the Court said that was not a relevant ‘domestic remedy’, because it
was obtained for the purpose of property and custody matters, rather than for obtaining a remedy for his
disappearance and death §49.
Where the case concerns a disappearance ‘there is a state of ignorance and uncertainty and a failure to account
or what has happened, if not an appearance of deliberate concealment of obstruction on the part of some
authorities §56. And so there must be ‘a less rigid approach when examine the issue of compliance with the six-
month time-limit §57. Here, it was enough that ‘the applicants lodged their application with the Court within ten
years of the disappearance of their relative §59. And that the applicants ‘did all that could be expected of them
to assist the authorities in their sporadic investigation §60.
Two violations of Article 2 (right to life and lack of an effective investigation) ECHR concerning the
disappearance and presumed death of the applicants’ relative;
- a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention on account
of the applicants’ mental suffering caused by the disappearance of their relative;
- a violation of Article 5 (right to liberty and security) concerning the unlawful detention of the
applicants’ relative at a gendarmerie station; and,
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