1. Introduction
1.1. Proceedings to
date
1. The Committee on Legal Affairs and Human Rights suggested
“the need to eradicate impunity” as the main topic for the debate
on the state of human rights in Europe scheduled for the June 2009
part-session, in line with the priorities defined in
Resolution 1547 (2007) and
Recommendation
1791 (2007), based on the 2007 report on the “State of human rights
in Europe” by Mr Christos Pourgourides (Cyprus, EPP/CD).
The Assembly’s
Bureau accepted this proposal at its meeting on 9 January 2009 in
Barcelona, on the basis of an outline report submitted by the committee,
which
had decided to propose this theme and appointed its chairperson,
Mrs Herta Däubler-Gmelin (Germany, SOC), as rapporteur at its meeting
on 10 and 11 November 2008 in Moscow.
2. On 23 March 2009, the committee, in co-operation with the
German Bundestag’s Committee on Human Rights and Humanitarian Aid,
held a major conference in Berlin on this topic, bringing together
eminent experts in the field from many countries.
1.2. Definition of “impunity”
3. “Impunity” can be defined as the absence of punishment
or sanction for an act that is recognised as reprehensible by the
law of the land. For the purposes of this report, the definition
can be further narrowed down to include only such cases in which
public officials are at least suspected to be involved either in
the reprehensible act itself or in the failure of the competent
authorities to hold the author of such an act to account.
4. It was in the case of
Yaşa v. Turkey that this concept appeared for the
first time in the case law of the European Court of Human Rights.
The case concerned the climate of violence that reigned in south-east Turkey
in the 1990s. The Court emphasised that the political context at
the time “cannot relieve the authorities of their obligations under
Article 2 to carry out an investigation, as otherwise that would
exacerbate still further the climate of impunity and insecurity
in the region and thus create a vicious circle”.
1.3. Importance of the
need to eradicate impunity
5. Impunity is the contrary of the rule of law, a concept
which underlies the entire system of the European Convention on
Human Rights (hereinafter: ECHR) for the protection of human rights
in Europe. Impunity is lawlessness, or “legal nihilism”
which must be replaced by accountability
of the state and its agents for their actions and omissions.
6. The element of deterrence is highlighted in the Preamble to
the Statute of Rome establishing the International Criminal Court,
which calls “to put an end to impunity for the perpetrators of [the
most serious crimes of concern to the international community] and
thus to contribute to the prevention of such crimes”.
7. Impunity for the perpetrators of serious human rights violations
also inflicts additional suffering on victims and their families.
The European Court of Human Rights has recognised that this can
amount to torture or inhuman and degrading treatment for example
of family members of a victim of enforced disappearance, within the
meaning of Article 3 of the ECHR.
Impunity
also encourages new violations and undermines public trust in the
rule of law, thus endangering the very foundations of democracy.
8. Impunity must therefore be eradicated both as a matter of
justice for the victims, of prevention of new violations by deterrence,
and of upholding the rule of law.
1.4. Categories of impunity
– A diagnostic framework
9. In order to suggest the most appropriate solutions,
it is important to identify precisely the nature of what has gone
wrong. I will avail myself of the “diagnostic framework” presented
by Françoise Hampson at the above-mentioned Berlin conference, which,
with some adjustments, will also serve as a structure for the presentation
of this report. The following categories of impunity can thus be
distinguished:
- the state denies
the applicability of human rights norms or that they cover the act/omission
in question (for example, “honour killings” in some legal cultures;
death penalty);
- the state acknowledges its participation in a human rights
violation but seeks to justify it (for example, the US practice
of extraordinary rendition);
- the state acknowledges the applicability of human rights
norms, but denies participation, whilst there is evidence of state
agents as perpetrators on a widespread scale and across a range
of violations; problem concerning all or only part of the state
territory;
- perpetrators have a link with state agents, but are not
necessarily state agents themselves;
- individual violations are committed by individual state
agents, covered up by “colleagues” or by institutional negligence
(for example, police violence, “hazing” in the armed forces);
- individual violations are committed by non-state actors;
institutional failure to hold perpetrators responsible (for example,
xenophobic, anti-Semitic, homophobic violence; violence against
women; so-called “honour crimes”);
- impunity is extended to international actors (immunity)?
2. Different
categories of impunity and adapted strategies for their eradication
2.1. The state refusing
to recognise its obligations
10. In some cases, states are either unwilling or incapable
of recognising that they are under an international obligation to
stamp out certain practices. For example, within certain legal cultures,
“honour crimes” (motivated by the desire to uphold the “honour”
of a family)
are
not recognised as a violation of law, or only as very minor offences.
Also, a number of countries (China, Iran, Saudi Arabia, but also
Council of Europe observer states Japan and the United States, and
Belarus whose special guest status has been suspended) still execute
the death penalty, which is considered a human rights violation
by the Parliamentary Assembly and the Council of Europe as a whole.
11. Until there is case law of an international court or another
authoritative condemnation of such a practice at the international
level, states can claim that they were not aware that the practice
is a violation of their international human rights obligations.
The right strategy for overcoming these practices is therefore awareness
raising, at the international level and nationally, with the help
of local allies. The report under preparation by Mrs Renate Wohlwend
(Liechtenstein, EPP/CD) on abolition of the death penalty in Council
of Europe observer states is expected to make a contribution in
this respect.
2.2. The state seeking
to justify its (acknowledged) participation in human rights violations
12. This is the case of the “war on terror”, in which
some states set out to justify practices that violate human rights
as required for the higher goal of stamping out terrorism. The Assembly’s
reports on renditions and secret detentions
and,
more recently, the report of the International Commission of Jurists’
Eminent Jurists Panel
have provided numerous examples
of state practices that clearly violate human rights, such as different
forms of torture, abductions and secret detentions. These are in
part simply denied by the states concerned, but in part also acknowledged
and defended as necessary for the achievement of the higher goal
of defeating terrorism or protecting the lives of potential victims
of terrorism.
13. The most extreme example is the justification, by senior members
of the Bush administration, of the so-called “enhanced interrogation
techniques”, which are described in shocking, bureaucratic detail
in the internal memoranda made public by President Obama. I should
like to commend the new United States President for making these
documents public and pledging that such actions shall not be repeated.
But I regret that President Obama has at the same time promised
to shield the perpetrators of such acts of torture from being held
to account. Whilst transparency is a necessary condition to eradicate
impunity, the disclosed information must also be acted upon in order
to hold to account the direct perpetrators as well as those who
ordered and organised the violations. At the latest since the Nuremberg
and Tokyo trials in the wake of the Second World War, it has been
internationally established that unlawful orders do not exonerate
those who execute them. The European Court of Human Rights (the
Court) has upheld this position vis-à-vis those who ordered and those
who executed the killings of refugees trying to leave the former
German Democratic Republic at the Berlin Wall.
Similarly,
two successive jury verdicts acquitting a Russian special forces
captain for executing a group of Chechen schoolteachers for having
allegedly acted upon the order of a superior officer were rightly set
aside upon appeal by the prosecution by the Supreme Court of the
Russian Federation.
The
same reasoning applies in my view to those who carried out acts
of torture in the “war on terror” and those who formulated and approved
the instructions permitting these despicable acts.
14. In such a situation of denial of legal obligations, the right
strategy would appear to consist in a combination of engaging in
discussions with the decision makers in the states that seek to
justify certain human rights violations, and litigation at national
and international levels aimed at authoritatively establishing the
legal situation, compensating victims and holding perpetrators to
account.
2.3. The state denying
its participation in human rights violations (recognised as such
in principle) whilst there is evidence of state agents as perpetrators
on a widespread scale
15. A classic impunity situation arises when the state
acknowledges, in principle, the applicability of human rights norms
to the actions in question, but denies its participation, whilst
there is evidence of state agents as perpetrators on a widespread
scale and across a range of violations. Such a situation of mass
violations of human rights typically arises in the context of armed
conflicts – the context in which the Court’s case law on impunity
has been developed, which I should like to recall hereinafter.
The Court has criticised: (a)
various types of abuses by security forces and (b) the latter’s use of inappropriate methods
in carrying out their duties.
2.3.1. Main types of abuses
2.3.1.1. Disappearances
and torture
16. The Assembly has produced important work on the topic
of enforced disappearances, including a report by Mr Christos Pourgourides
(Cyprus, EPP/CD) on high-profile disappearances in Belarus accusing
the minister of the interior and the prosecutor general at the time
of having masterminded the killings in question and their subsequent
cover-up.
Whilst the suspects named by the
Assembly were struck with targeted sanctions by the Council of the
European Union and the United States, they have still not been brought
to justice in Belarus, as demanded by the Assembly. The Assembly
has also taken a principled stand in support of the adoption of
the United Nations Convention for the Protection of All Persons
from Enforced Disappearances
and covered enforced disappearances
issues in a number of reports concerning human rights violations
in the Chechen Republic.
17. The Court has produced an abundant case law on torture and
disappearances. We will therefore merely highlight a few recent
cases and the principles that emerge from them, while noting that
cases of disappearance and torture generally come under the scope
of Articles 2 and 3 of the ECHR.
18. The Court has interpreted the right to life (Article 2 of
the ECHR) as imposing on the states an obligation to protect the
life of every person within their jurisdiction.
This has enabled the Court to
bring disappearances within the scope of application of Article
2. Nonetheless, the Court has considered that the disappearance
of an individual while in custody was not in itself sufficient to
conclude that there has been a violation of Article 2.
However,
it subsequently considered that the disappearance of an individual
in south-east Turkey in the climate of violence that prevailed in
the 1990s could be regarded as a danger for the life of the individual
in question.
It also
held that the particular circumstances of detention, unacknowledged
by the authorities, could allow for the presumption that the person
had died.
Among
recent cases concerning disappearance and torture/inhuman and degrading
treatment, it is worth noting, for example
,
Abdurzakova and Abdurzakov v. Russia and
Medova v. Russia of 15 January 2009
(judgments not yet final), in which the Court concluded that there
had been a violation of Article 2, particularly on account of the
failure to conduct an effective investigation into the circumstances
of the disappearance of the applicants’ family members, and a violation
of Article 3 on account of the distress and anxiety suffered by
the applicants as a result of their relatives’ disappearance.
19. In order to prevent abuses, the Court imposes procedural obligations
on the contracting states, notably the requirement to conduct an
effective investigation. Thus, in the context of Article 2, it is
clear that this obligation applies when an individual disappears
while he or she is entirely under the responsibility of the security
forces.
In this respect,
the Court has condemned Russia on numerous occasions for various shortcomings
in its obligation to conduct effective investigations in Chechen
cases. The case of
Gongadze v. Ukraine is also noteworthy.
The Court found that there had been a violation of the procedural
obligation of Article 2, noting that the state authorities had attached
greater importance to demonstrating the non-involvement of senior
state figures in the case than to ascertaining the truth about the
circumstances surrounding the disappearance and death of the applicant’s
husband.
20. With regard to specific measures that could remedy shortcomings
in the investigation in cases of missing persons, the Committee
of Ministers welcomed, in its interim Resolution ResDH(2007)25,
the exhumation and identification programme set up by the Turkish
Government in the context of the
Cyprus
v. Turkey case
. However, it was also
emphasised that these measures had not been sufficient. Finally,
it should be noted that the state’s responsibility may arise even
where the state itself is not involved.
21. As to actions amounting to torture and/or inhuman and degrading
treatment committed by state agents, Article 3 imposes a double
obligation on states, namely a substantive and a procedural obligation.
For the prohibition on torture to be effective in practice, it is
essential to carry out a thorough and effective investigation in
order to identify and punish those responsible. If this were not
the case, it would be possible for state agents to flout the rights
of those under their control with virtual impunity.
Thus,
the failure to meet this obligation represents in itself a violation
of Article 3 (see
Assenov,
cited above).
22. By way of example, the Court recently found a violation of
the substantive and procedural limbs of Article 3 in the case of
Karaduman and Others v. Turkey.
The applicants
had been placed in police custody as the police suspected them of
belonging to an illegal organisation, the Hizbullah (the Party of
God). Following questioning in the premises of the security directorate,
medical reports noted bruises and injuries on the applicants’ bodies,
although other reports made no mention of them. The administrative
investigation into the circumstances of their detention in police
custody was discontinued and the only police officer charged was acquitted
by a criminal court. In the absence of a plausible explanation from
the government as to the origin of these injuries, the Court considered
that there had been a violation of the substantive aspect of Article
3. As to the procedural aspect, the Court held that, in the absence
of appropriate medical examinations, the applicants had been deprived
of the fundamental guarantees protecting individuals placed in custody.
Consequently, the requirement to conduct an investigation had not
been met.
23. Finally, the Court has only rarely found the existence of
an administrative practice of torture and inhuman and degrading
treatment. This was the case, in particular, in
Ireland v. the United Kingdom, in which the Court found that the use
of five interrogation techniques by the British police was an “administrative
practice” of inhuman and degrading treatment in the context of the
Northern Ireland conflict.
2.3.1.2. Destruction of
villages
24. Among the examples of executive malfunctioning that
may accompany armed conflicts, the Court has denounced the destruction
of villages by the security forces in Turkish cases. These actions
gave rise to two forms of violation of the Convention. Firstly,
the European Court found that the deliberate burning by the security
forces of residents’ homes in Kurdish villages amounted to inhuman
treatment.
Secondly,
it found that the Turkish state’s efforts to improve the general
situation of internally displaced persons following the destruction
of their villages had been neither adequate nor effective under
Article 1 of Protocol No. 1. In particular, it noted that no practical
measures had been taken to facilitate the return of the applicants
to their village. In addition, the authorities had not offered them
alternative employment or housing. Accordingly, the Court concluded
that there had been a violation of Article 1 of Protocol No. 1.
Equally, since the applicants had been deprived of access to their
homes, there had also been a breach of Article 8 of the Convention.
2.3.2. Inappropriateness
of the methods used
2.3.2.1. Police and gendarmerie
25. It is the Court’s long-established case law that
the use of lawful force should not be excessive. In other words,
the force used should be strictly proportionate to achieving the
authorised aim (
McCann and Others v. the
United Kingdom concerning
persons suspected of wishing to commit an attack, and beaten by
the security forces when arrested). The Court has also criticised
the use of a machine gun to disperse demonstrators in the case of
Güleç v. Turkey. In
that case, there were insufficient gendarmes present to deal with
acts of violence committed by the demonstrators. As a result, the
officers called for backup. At least two armoured vehicles were
used. The Court noted that the gendarmes used a very powerful weapon
because they apparently did not have truncheons, riot shields, water
cannons, rubber bullets or tear gas. This shortcoming was all the
more unacceptable, in the Court’s opinion, in that the county where
the events took place was located in a region where a state of emergency
had been declared. The Court concluded that the force used to disperse
the demonstrators, which had resulted in the death of a 15-year-old
pupil, had not been absolutely necessary within the meaning of Article
2.
26. Equally, in the case of
Nachova
v. Bulgaria,
the
Grand Chamber found that the regulations in force had made it possible
to send a heavily armed team of servicemen to arrest two men, without
prior discussion of the threat that they might represent or clear
warning of the need to minimise the risk of loss of life. In the Court’s
view, the operation had thus been prepared and conducted in breach
of the principle of the right to life. The Court also held that
the use of potentially fatal force could not be considered “absolutely
necessary”, given that it was known that the individual to be arrested
did not represent any threat to the life or physical integrity of
others and was not suspected of having committed a violent crime.
Accordingly, it concluded that there had been a violation of the
substantive aspect of Article 2.
27. Finally, it is interesting to note that the Court has recently
specified that, in the event of uncontested use of fatal force by
state agents in situations where they were in control, it is for
the respondent state to establish that the force used did not go
beyond what was “absolutely necessary” (see
Mansuroğlu
v. Turkey concerning the
use of fatal force by a special police task force during an anti-PKK
operation in a state-of-emergency region).
2.3.2.2. Armed forces
28. The Court has concluded that the methods used by
armed forces were disproportionate, notably in the case of
Isayeva and Others v. Russia.
This
concerned the use of extremely powerful weaponry. According to the
conclusions of the internal investigation, 12 S-24 air-to-ground
unguided rockets missiles were fired. When one of these rockets
explodes, it breaks into several thousand pieces of shrapnel and
its impact range exceeds 300 metres. It follows that anyone who
was in the area targeted by those strikes at that time was in danger
of death. In view of all the circumstances of the case, the Court
considered that the military operation in question had not been
prepared and conducted with the precautions necessary for the protection
of civilian life. It held that Article 2 of the Convention had been
breached (see also
Isayeva v. Russia on the use of heavy combat
weapons in a residential area without prior evacuation of civilians).
29. Indeed, as the number of judgments relating to Chechnya has
grown, the European Court of Human Rights has used increasingly
strong language in its rulings against Russia.
For example, in
Musayev and Others v. Russia (2007),
which
involved a massacre of civilians by Russian forces, the Court deeply
regretted that six years after the “cold-blooded execution of more
than 50 civilians” in a village outside of Grozny, “no meaningful
result whatsoever” had been achieved in the task of identifying
and prosecuting the individuals responsible. In its unanimous decision,
the seven-judge chamber said that “the astonishing ineffectiveness
of the prosecuting authorities in this case could only be qualified
as acquiescence in the events”.
30. The report by Mr Wolfgang Wodarg (Germany, SOC) on private
military and security firms and erosion of the state monopoly on
the use of force
has shown that a serious
impunity risk arises also from the increasing use, in conflict situations,
of private companies (mercenaries).
2.3.3. Spread of methods
used in conflict zones to other regions
31. The actions described above are mostly limited to
particular parts of the state’s territory (for example, south-eastern
Turkey, Northern Ireland, or the Chechen Republic of the Russian
Federation). But the danger exists that the methods used by the
security forces in these regions are “exported” to other parts of
the national territory, for example by the transfer or promotion
of state agents practising such methods to other regions. Mr Rudolf
Bindig, who was the Assembly’s rapporteur on the human rights situation
in Chechnya for many years, had warned, in his report in 2004 on
the human rights situation in the Chechen Republic, that the systematic human
rights violations and the “climate of impunity” he had noted in
Chechnya threatened to spill over to neighbouring republics in the
North Caucasus region of the Russian Federation and beyond.
Whilst the Russian delegation
at the time rejected Mr Bindig’s analysis, the developments on the
ground in the past years have unfortunately proven him right. The
situation in Ingushetia has deteriorated dramatically,
and Dagestan and North Ossetia have
also seen violence and counter-violence increase considerably.
Even in the Chechen Republic itself,
where the exceptional measures justified by the “counter-terrorist
operations” were recently lifted, violence is on the increase again
since the beginning of this year.
The situation in the North Caucasus
region seems to be a case in point showing that even the most drastic
anti-terrorist measures used by the security forces have not succeeded
in stamping out the violence – they just seem to have swelled the ranks
of desperate young men taking to the mountains to prepare their
revenge. It is obvious that the report currently under preparation
by Mr Dick Marty (Switzerland, ALDE) on “Legal remedies for human
rights violations in the North Caucasus region” is of particular
importance. It is therefore regrettable that the rapporteur’s fact-finding
visit to the region first scheduled for November 2008 and then for
May 2009 was recently postponed again.
32. Another geographical zone where war crimes were committed
on a massive scale is the territory of the former Federal Republic
of Yugoslavia. It was clear from the outset that the International
Criminal Tribunal for the former Yugoslavia (ICTY) would only be
able to handle the most serious cases concerning the top of the chain
of command. As the ICTY’s mandate is drawing to an end, care must
be taken that there will be no de facto impunity of lower and mid-level
commanders and other participants in these atrocities. For this
reason, the three reports currently under preparation by the Committee
on Legal Affairs and Human Rights – on member states’ duty to co-operate
in the prosecution of war crimes,
on the protection of witnesses: cornerstone
of justice and reconciliation in the Balkans,
and on inhuman treatment of
persons and illicit organ trafficking in Kosovo
– are of particular importance
for the fight against impunity.
2.4. Perpetrators have
a link with state agents, but are not necessarily state agents themselves
33. In another important category of impunity cases,
perpetrators have a link with state agents (for example, state agents
identify targets or provide protection to the perpetrator), but
are not necessarily state agents themselves. This could be the case
of numerous killings of journalists and human rights activists by
“unknown perpetrators”. The recent spate of killings of adversaries
of Chechen President Ramzan Kadyrov
is widely thought to fall into this
category. Extreme right-wing groups in the Russian Federation are
thought to be behind the attack in March 2009 on human rights activist
Lev Ponomarev.
Such ultra-nationalist thugs, who
also roam the streets in other countries, are thought to act spontaneously
at times, but occasionally also upon instigation by and under the
protection of certain elements in the security services.
34. Mr Holger Haibach (Germany, EPP/CD), in his report on the
situation of human rights defenders in Council of Europe member
states,
has very rightly called for an end
to impunity of those who target human rights defenders. Crimes remaining
unpunished against persons whose work consists in protecting others,
in addition to their impact on the victims themselves and their
families, also have a demoralising effect on all victims of human
rights violations: if the defenders can no longer defend themselves,
who can still hope to have their rights protected by them?
35. Closely related are the cases of attacks and other forms of
pressure on applicants to the European Court of Human Rights, on
their relatives and on their lawyers, as described in Mr Christos
Pourgourides’ (Cyprus, EPP/CD) report on the member states’ duty
to co-operate with the European Court of Human Rights.
The Assembly, in its
Resolution 1571 (2007),
urgently called on all member
states to stamp out such attacks and to hold their perpetrators
to account.
36. At the previously-mentioned Berlin conference on impunity,
Mrs
Tanya Lokshina (Human Rights Watch), who had just returned from
a three-week field trip to Chechnya, found that intimidation of
victims of human rights violations and of their lawyers had become
so intense in this region that many dare not even complain to the
local law enforcement bodies, let alone take their case to the European
Court of Human Rights. Such behaviour is an attack on the very foundations
of the European system for the protection of human rights, and cannot
be tolerated, neither by the states nor by the Court. This is not
an acceptable way to reduce the Court’s excessive workload!
37. In order to tackle this group of cases, an appropriate strategy
could be to try and persuade the “links” within the state security
bodies to abandon the perpetrators, by convincing the political
leaders that it is in their interest to sever any links to such
crimes by clamping down on rogue elements – thus demonstrating for
all to see that such elements are indeed “rogues”.
2.5. Violations committed
by individual state agents, covered up by “colleagues” or by institutional
negligence
38. This category of impunity, which potentially concerns
all member states of the Council of Europe, typically involves police
officers, prison guards, etc. who commit individual acts of violence
or otherwise violate human rights in the fulfilment of their duties.
Such abuses are often effectively
covered up by colleagues or superiors, or by the generally negligent
attitude of the institutions concerned, including, at times, the prosecution
services and the courts. Another group of cases belonging to this
category is the widespread practice of “hazing” of new recruits
resulting in deaths, bodily harm, and desertions, as described in
a report on human rights of members of the armed forces prepared
for the Assembly by Mr Alexander Arabadjiev (Bulgaria, EPP/CD).
The Court’s case law provides ample
illustrations of such “institutional negligence”, in the form of
the passivity of the prosecution service, delays in criminal proceedings,
and excessive leniency by judges.
2.5.1. Passivity on the
part of the prosecution service
39. The Court has criticised the failure to prosecute
and the prosecution service’s passivity in a number of cases, especially
Abdülsamet Yaman v. Turkey. The applicant
alleged that he had been subjected to torture while in police custody.
The Court concluded that there had been a violation of Article 13
of the Convention (right to an effective remedy), noting that, in
spite of the applicant’s serious allegations, the prosecution service in
question had remained totally passive and had not brought proceedings
against the perpetrators of the ill-treatment.
2.5.2. Delays in criminal
proceedings
40. With regard to the excessive length of criminal proceedings,
the Court has examined this question from two main angles: under
Article 6 (right to a fair trial) and Articles 2 and 3 of the Convention
(right to life and prohibition of torture). The requirements of
Article 6 are well known: the length of the proceedings must be reasonable.
Furthermore, particular expedition is necessary depending on what
is at stake in the proceedings, notably where a detainee’s fate
is concerned (see
Abdoella v. the Netherlands).
In the case of
Selmouni
v. France,
the Court found that the proceedings,
still pending when the case was before the Court, had already lasted
more than six years and seven months. Referring to its conclusions
as to the admissibility of the complaint under Article 3 and the
procedural obligations arising under that article, the Court concluded
that the length of the proceedings had been excessive from the perspective
of Article 6, paragraph 1.
41. The Court subsequently identified an implicit requirement
of promptness arising directly from Articles 2 and 3 of the Convention.
It specified that this principle concerned not only the police investigation
stage, but also the judicial phase and the criminal proceedings
as a whole (see,
mutatis mutandis,
McKerr, cited above, and
Fatma Kaçar v. Turkey).
Thus, in the
case of
Teren Aksakal v. Turkey, the Court considered
that a duration of twenty-two years for criminal proceedings was,
in the absolute, difficult to justify. In this case, the length
of proceedings was by no means justified, in spite of the complexity
of the domestic legal proceedings arising from the dual systems
of military and civil courts with jurisdiction during a state of
siege.
42. The Court has also, more specifically, denounced the absence
of, or delays in, criminal or disciplinary proceedings in the light
of this implicit requirement under Article 2.
In
those cases, the Court has acknowledged that there may be obstacles
or difficulties which prevent progress in an investigation in a particular
situation. However, a prompt response by the authorities in investigating
the use of lethal force may generally be regarded as essential in
maintaining public confidence in their adherence to the rule of
law and in preventing any appearance of collusion in, or tolerance
of, unlawful acts.
43. Equally, the Court has repeatedly criticised delays in criminal
prosecution in the context of Article 3, particularly in the above-mentioned Selmouni case. During its examination
of the exhaustion of domestic remedies, the Court noted that, five
years after the facts, no one had been charged, although the police
officers accused by the applicant had been identified. It noted
that the police officers did not finally appear before a court until
almost five years after they had been identified and seven years
after the period of police custody in question. Accordingly, the
Court concluded that the remedy available to the applicant was not,
in this case, an ordinary remedy sufficient to afford him redress
for the violation he alleged.
2.5.3. Leniency by judges
44. The Court has also criticised, in the context of
Articles 2 and 3, domestic courts which were prepared to allow life-endangering
offences or actions contrary to Article 3 to go unpunished, particularly
by imposing minimal suspended terms of imprisonment on the officers
found responsible. Thus, in the case of
Okkalı
v. Turkey,
the Turkish
courts had reduced the sentences imposed on police officers accused
of ill-treatment of a 12-year-old boy, on the ground that they had
made “qualified confessions”. They had imposed the minimal suspended
sentence of one year’s imprisonment. In the Court’s view, the judges’
decision indicated the exercise of tolerant discretionary power
with regard to extremely serious unlawful acts. The criminal system
as it had been applied in this case had therefore no dissuasive
effect likely to ensure the effective prevention of such acts. Consequently,
there had been a violation of Article 3.
45. This case-law approach has been reiterated under Article 2,
especially in the
Nikolova and Velichkova v.
Bulgaria judgment.
In
this case, the Court noted that although the Bulgarian Criminal
Code of 1968 had given the domestic courts the possibility of imposing
a sentence of up to twelve years’ imprisonment on guilty police
officers, they had imposed only the minimum three-year suspended
sentence. In addition, they had never imposed disciplinary sanctions.
On the contrary, one of the officers in question had been promoted
five years after the opening of the criminal proceedings. The Court
held that in those circumstances the state had encouraged a feeling
of impunity among police officers and concluded that there had been
a violation of Article 2.
46. To overcome impunity in this group of cases, the focus must
be on awareness-raising measures within the institutions concerned
(police, military, judiciary), combined with clear signals from
the very top of the respective hierarchies that such acts will not
be tolerated, including exemplary, well-publicised investigations and
prosecutions of such offences.
2.6. Individual violations
committed by non-state actors; institutional failure to hold perpetrators responsible
47. This group of cases includes those instances of crimes
against human rights defenders or journalists in which the involvement
of individual state agents as perpetrators (Chapter 2.5 above) or
as having a link with the perpetrators (Chapter 2.4 above) is suspected
but cannot be established with certainty. The reasons are often
similar to those indicated above for the impunity of individual
violations committed or instigated and covered up by state agents
– the passivity or incompetence of the law enforcement bodies regarding
certain types of crime or, more precisely, certain categories of
victims.
48. Some types of crimes, though definitely committed by non-state
actors, without the involvement of state agents even being suspected,
nevertheless deserve to be addressed as impunity issues because
of the passive or overly lenient attitude of the law enforcement
bodies motivated by racism, anti-Semitism, xenophobia, Islamophobia,
homophobia, sexism or other forms of intolerance.
2.6.1. Impunity of crimes
motivated by xenophobia, anti-Semitism and homophobia
49. Violence against foreigners or even just foreign-looking
persons on grounds of racism and xenophobia is on the rise in many
member states, fostered by the current economic crisis. Police either
fail to intervene to protect victims or even participate themselves
in acts of aggression, intimidation and denigration.
50. The Roma population in many European countries is particularly
vulnerable to such behaviour. Mr József Berényi (Slovak Republic,
EPP/CD) is currently preparing a separate report on this pressing
issue, and the Committee on Legal Affairs and Human Rights held
a hearing with Roma representatives at its meeting in Târgu Mureş
(Romania) on 18 May 2009. On 4 March 2008, the Court concluded in
Stoica v. Romania that there had been a violation
of Article 3 and Article 14 in conjunction with Article 3 of the
ECHR. In that case, it held that the respondent government had not
proved that the incident between the applicant – a Rom – and police
officers was other than racially motivated, and the evidence indicated
that the police officers’ behaviour was clearly racially motivated.
In the
Cobzaru v. Romania case,
the Court reached similar conclusions.
51. The spectre of anti-Semitism has shown its ugly face again
in a number of countries, including in a novel form, which is on
the increase since the spate of violence in the Middle East, consisting
in extremists expressing their hatred against Israel by violence
against local Jewish people.
52. Violence motivated by homophobia is also all too often tolerated
or even encouraged by complacent or homophobic members of the law
enforcement bodies and the courts. This topic is part of another
separate report under preparation by Mr Andreas Gross (Switzerland,
SOC). At its meeting in Berlin on 24 March 2009, the Committee on
Legal Affairs and Human Rights heard the testimonies of several
LGBT activists giving first-hand evidence of hostile attitudes and
even violence of which they had become victims.
2.6.2. Impunity of violence
against women and so-called “honour crimes”
53. Violence against women and so-called “honour crimes”
are often not prosecuted with the required severity because of the
sexist attitudes of the police, prosecutors or judges dealing with
these cases or because of their archaic cultural attitudes that
place values such as the honour of the family or the children’s duty
of obedience above the right of individual liberty or even the right
to life. In some legal systems, crimes motivated by the protection
of “honour” are still punished less severely than similar crimes
with other motives. In so far as legislation to this effect still
exists, it must urgently be abolished. Where unacceptable outcomes are
favoured by court practice, judicial actors must be convinced in
an open public dialogue that such attitudes cannot be justified,
not even by well-meaning, but misguided “tolerance” for different
cultural attitudes and backgrounds.
54. The Court has deduced from Article 3 of the Convention (prohibition
of torture) a positive obligation to punish rape and to investigate
instances of rape. Thus, in the case of
M.C.
v. Bulgaria, the Court examined, in
particular, whether Bulgarian legislation and practice, which required
proof of active resistance by the victim in order to launch a prosecution,
had such significant flaws as to amount to a breach of the respondent
state’s positive obligations under Articles 3 and 8. The Court acknowledged
that victims of sexual abuse – in particular, girls below the age
of majority – often provide no physical resistance because of a
variety of psychological factors or because they fear further violence
on the part of the perpetrator. Having regard to contemporary standards
and trends in this area, the Court reiterated that member states’
positive obligations under Articles 3 and 8 of the Convention were
to be seen as requiring the penalisation and effective prosecution
of any non-consensual sexual act, even if the victim had provided
no physical resistance.
The
Court found violations of Articles 3 and 8 in this case.
55. “Feminicides”, violence against women and so-called “honour
crimes” were recently the subject of separate reports of the Parliamentary
Assembly by Mrs Lydie Err (Luxembourg, SOC), Mr José Mendes Bota (Portugal,
EPP/CD) and Mrs Ann Cryer (United Kingdom, SOC).
At the aforementioned conference
on impunity in Berlin,
Professor Beate Rudolf gave a short
overview of the present situation regarding this category of impunity
cases.
2.6.3. Impunity of corruption
56. Finally, this category of impunity includes cases
of corruption in which perpetrators (whether they are public officials
or private individuals, including senior executives of private companies)
often remain unpunished because of institutional weaknesses both
within the law enforcement agencies, who sorely lack sufficiently
qualified staff in adequate numbers and in private and public enterprises,
in which compliance procedures remain weak.
57. At the Berlin conference, Ms Monica Macovei, former Minister
of Justice of Romania, and Mr Mark Livschitz, a lawyer specialising
in corporate corruption and compliance strategies, made presentations
giving concrete examples of such abuses and pointing out systemic
weaknesses.
In their view, perpetrators
of serious and very damaging acts of corruption enjoy almost complete
impunity.
The
small number of cases that are actually prosecuted and condemned
represent only the tip of the iceberg. The legal framework as well as
the resources available to investigators and prosecutors are woefully
inadequate – and I tend to share the point of view of the experts
that this may well not be so by accident.
58. Corruption, both in the public and in the private sectors,
exists in all member states, albeit not to the same degree. It undermines
the rule of law and presents a serious threat to our countries’
democratic institutions and their prosperity. The Council of Europe’s
Group of States against Corruption (GRECO)
makes an important contribution to
the fight against this scourge. The report currently under preparation
in the Assembly by Mr Pieter Omtzigt (Netherlands, EPP/CD) on the
protection of “whistle-blowers” will make another contribution: improved
protection for insiders who have the courage to expose wrongdoings
may increase the chances to hold to account the authors of such
wrongdoings. Finally, the report under preparation by Mr Kimmo Sasi (Finland,
EPP/CD) on corruption in the judiciary will draw attention to a
particularly dangerous form of corruption, which puts into question
the very existence of the rule of law.
2.7. Impunity ... extended
to international actors?
59. The role of international actors is on the increase
worldwide. In crisis regions, international peacekeepers (and sometimes
“peace-makers”), mandated by the United Nations Security Council
or not, are carrying out important tasks. These are entrusted to
soldiers, police officers or bureaucrats put at the disposal of
the international mission by states, and who are as a rule no better
and no worse than soldiers, police officers and bureaucrats at home.
Some of them commit mistakes, even crimes, which have victims that
deserve justice. So far, this is almost impossible, as in addition
to the factors which contribute to impunity at the national level,
international actors also benefit from privileges and immunities
preventing them and their superior national and international authorities
from being held responsible.
60. The cases of
Bankovic and
Behrami decided by the Court show
that there is still a long way to go until international actors
are held to account even in the same imperfect way as national ones.
The
Bankovic case
concerned the 1999 bombing by NATO of
the RTS (Radio Televizije Srbije) headquarters in Belgrade.
The Court found the application
inadmissible because Serbia, at the time, was not a party to the
ECHR, and the NATO countries participating in the bombing campaign
did not extend their jurisdiction over this country by the mere
fact of participating in the bombing campaign. The Court thus distinguishes
the use of air power from military occupation by ground forces:
in the cases of
Loizidou v. Turkey and
Ilascu v.
Russia and Moldova, the Court had held Turkey
and Russia responsible for violations of the Convention committed
by the internationally unrecognised authorities of northern Cyprus
and Transnistria respectively.
61. In the case of
Behrami,
children were killed
playing with unexploded ordnance in Kosovo and the applicants alleged
that this was due to the negligence of KFOR soldiers, who were responsible
for demining the area. The Court found that the actions of KFOR
had to be attributed to the United Nations, under whose mandate
KFOR acted, so that the states whose soldiers were deployed in Kosovo
could not be held responsible. The same reasoning was applied in
the related case of
Saramati,
who had complained about unlawful detention and unfair trial by
KFOR officials.
62. Recent judgments of the European Court of Justice in Luxembourg
seem
to indicate that there is a growing awareness for the need to hold
international actors to account in the same way as national ones,
for the sake of protecting individuals who might otherwise find
themselves devoid of all legal remedies,
a development which Mr Dick
Marty has warmly welcomed in his report on United Nations Security
Council and European Union anti-terror blacklists.
63. Rather than making it even more difficult to hold perpetrators
of human rights violations responsible where these occur during
operations under international mandate, the international community
should set a positive example of transparency and accountability.
64. This topic should also be addressed in more depth by a future,
separate report of the Assembly, which should also address issues
related to state immunity.
3. Conclusions
65. It is clear that impunity, in all forms and shapes,
must be eradicated in all member states of the Council of Europe,
as a matter of individual justice, deterrence and the preservation
of the rule of law.
66. Several speakers at the Berlin conference, including Mr Luis
Moreno-Ocampo, the Prosecutor of the International Criminal Court
(ICC), have emphasised the importance of international justice for
the fight against impunity, and the need for international courts
and tribunals to be supported by states in manifold ways – by executing
arrest warrants, protecting and providing access to witnesses and
other evidence, and by enacting laws providing for the extraterritorial
jurisdiction of national courts in order to allow the ICC to act
in accordance with its subsidiary mandate. The principle of universal
jurisdiction has very recently been strengthened again by a judgment
of the European Court of Human Rights upholding a French judgment
condemning a Mauritanian for acts of torture committed in his country,
which had decreed an amnesty covering his case.
Resolution 1644 (2009) on co-operation with the International Criminal Court
(ICC) and its universality
has
summed up the action required from member states in this respect
– first and foremost, for all those who have not yet done so, to
ratify the Statute of Rome, and to enact the necessary legislation
to implement the Statute of Rome in domestic law.
67. As we have seen, different groups of cases of impunity require
different responses. But all have in common that there is clear
case law of the European Court of Human Rights, which recognises
impunity of perpetrators of serious human rights violations as a
clear violation of the European Convention on Human Rights.
68. The key to developing a strategy to eradicate impunity is
therefore the full implementation of the Court’s judgments in this
field. This will be an important issue that the Assembly’s rapporteur
on execution of the Court’s judgments, Mr Christos Pourgourides
(Cyprus, EPP/CD), will address in his ongoing work. It would seem
obvious, for example, that in a case in which the Court has found
a violation of the right to life (Article 2 of the ECHR) in the
form of a failure to investigate an extra-judicial killing or an
enforced disappearance, the execution of the judgment cannot be
limited to the payment of the pecuniary compensation the Court has
fixed. A proper investigation must still be carried out and the
perpetrators held to account; and general measures must be taken
in order to avoid that similar violations occur in the future because
of the same structural defects that had caused the violation at
issue. I am convinced that, if all the Court’s judgments on impunity
cases were properly executed in this spirit, we would come close
to eradicating impunity for good.
69. Of course, the quality of the execution process depends very
much on the clarity of the Court’s judgments themselves, in which
there should be no room for any defeatism regarding the likelihood
of the execution of the one or the other aspect of a judgment.
70. Sustainable success of the execution process also depends
on the consistency of the Committee of Ministers’ approach, which
must be the same for all member states, excluding all double standards.
In this context, we can in fact commend the Committee of Ministers
for having consistently noted that there is a continuing obligation
to conduct effective investigations inasmuch as procedural violations
of Article 2 have been found by the Court.
This
is a logical application of the principle of subsidiarity: it is
the member states which are best equipped to carry out effective
investigations, not the Court or the Committee of Ministers. It would
be excellent if this practice could be further developed, for example
by the Committee of Ministers establishing that a judgment of the
European Court of Human Rights finding an investigation ineffective
shall be treated as a new fact within the meaning of Article 4,
paragraph 2, of Protocol No. 7 (right not to be tried or punished
twice –
ne bis in idem), thus
permitting the retrial of a person acquitted as a result of fundamentally flawed
investigations or proceedings.
71. In this context, I should also like to stress that work on
execution of judgments in Article 2 cases involving lack of investigation
would greatly benefit if as little time as possible were to pass
between the killing or disappearance and the judgment of the Court,
as for obvious reasons, evidence tends to be more difficult to come
by over time. The mere communication of an application to the national
authorities by the Court, with appropriate questions as to investigative
actions taken to date, has been known to trigger a spate of activity within
the law enforcement agencies eager to avoid embarrassing findings
by the Court. Sending such a signal to the national authorities
at an early stage, which is possible under the Court’s rules,
ought to be part of
the Court’s priorities, especially in cases that are emblematic
for a large number of potential victims, who are feeling threatened
in the same way as the victim in the case at issue and are keenly
watching the reaction of the international instances, including
the Court (for example other journalists in the
Gongadze and
Politkovskaya cases).
72. As the Assembly’s main proposal, I should like to suggest
that the Assembly reiterate its invitation to the Committee of Ministers
to elaborate guidelines on the fight against impunity, drawing from
the case law of the European Court of Human Rights, the Committee
of Ministers’ own work on execution of judgments, the pertinent
resolutions and recommendations of the Assembly and the work of
the CPT, as well as from the work of the United Nations and relevant
non-governmental organisations. These guidelines must also make
it clear that immunity of international actors for serious human
rights violations, in particular violations of non-derogable rights,
such as the right to life, is unacceptable, and specify which measures
shall be taken and remedies made available at national and international
levels to tackle impunity.
Reporting committee:
Committee on Legal Affairs and Human Rights.
Reference to committee:
Bureau decision of 9 January 2009.
Draft resolution and draft recommendation unanimously
adopted by the committee on 19 May 2009.
Members of the committee:
Mrs Herta Däubler-Gmelin (Chairperson),
Mr Christos Pourgourides, Mr Pietro Marcenaro, Mr Rafael Huseynov
(Vice-Chairpersons), Mr José Luis Arnaut, Mrs Meritxell Batet Lamaña, Mrs Marie-Louise Bemelmans-Videc,
Mrs Anna Benaki, Mr Petru Călian,
Mr Erol Aslan Cebeci, Mrs Ingrida Circene, Mrs Ann Clwyd, Mrs Alma
Čolo, Mr Joe Costello, Mrs Lydie Err, Mr Renato Farina, Mr Valeriy
Fedorov, MrJoseph Fenech Adami,
Mrs Mirjana Ferić-Vac, Mr
György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Mrs
Svetlana Goryacheva, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin
Hajibayli, Mr Serhiy Holovaty,
Mr Johannes Hübner, Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot
Islami, Mr Željko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques,
Mr András Kelemen, Mrs Kateřina
Konečná, Mr Franz Eduard Kühnel, Mr Eduard Kukan (alternate: Mr
József Berényi), Mrs Darja
Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger, Mr Aleksei
Lotman, Mr Humfrey Malins, Mr Andrija Mandić, Mr Alberto Martins,
Mr Dick Marty (alternate: Mr Andreas Gross),
Mrs Ermira Mehmeti, Mr Morten Messerschmidt, Mr Akaki Minashvili, Mr Philippe
Monfils, Mr Alejandro Muñoz Alonso (alternate: Mr Agustín Conde Bajén), Mr Felix Müri, Mr Philippe
Nachbar, Mr Adrian Năstase,
Mr Valery Parfenov, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr Valeriy
Pysarenko, Mr Janusz Rachoń,
Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Paul Rowen,
Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Dimitrios
Stamatis, Mr Fiorenzo Stolfi, Mr Christoph Strässer, Lord John Tomlinson, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Viktor Tykhonov
(alternate: Mr Ivan Popescu),
Mr Øyvind Vaksdal, Mr Giuseppe Valentino, Mr Hugo Vandenberghe, Mr
Egidijus Vareikis, Mr Luigi Vitali, Mr Klaas de
Vries,Mrs Nataša
Vučković,Mr Dimitry Vyatkin,
Mrs Renate Wohlwend, Mr Jordi Xuclà
i Costa.
NB: The names of the members who took part in the meeting
are printed in bold.
Secretariat of the committee:
Mr Drzemczewski, Mr Schirmer, Ms Heurtin.