Welcome to the first issue of the Constitutional Law Review, the new bilingual (Georgian/ English) journal of the Constitutional Court of Georgia in partnership with the Council of Europe, German Technical Cooperation, Ilia Chavchavadze State University and Local government and Public Service Reform Initiative. I am grateful to all our partners for their valuable support. The Constitutional Law Review will be published quarterly and distributed freely to relevant local and international institutions. The Constitutional Law Review (CLR) strives to be the medium for the propagation of the most important developments at the Constitutional Court in particular and, in general, the major legal developments in the country as well as the whole region and all over the world. It will provide Georgian readers with reviews of decisions made by the European Court of Human Rights, European constitutional courts, and other world judicial and legal institutions. It will also create a platform for professional debate and a critical analysis of the decisions made by the Constitutional Court of Georgia. The journal will provide the international community with information originating from Georgia (and vice versa) and encourage a strengthening of scientific/legal ties and the free exchange of ideas. My hope is that, during the coming years, the journal will continue to engage its readers by expanding their thinking about our profession. In today’s complex environment, the role of informed scholars, and critical and reflective thinkers is essential for our continued development, especially for countries like Georgia. In the first issue we are privileged to have contributions from a few well-known Georgian as well as world class scholars. I believe this trend will continue and that each edition will start to become filled with more and more interesting research papers. To conclude, I would like to note that this issue marks the 50th anniversary of the establishment of the European Court of Human Rights, and the 60th anniversary of the Council of Europe. We hope to witness the further progress and success of these institutions, which have had a tremendous impact on the democratic development of the country as well as the whole region. I hope you will enjoy reading the CLR and that its contents will provide you with useful and stimulating information. The President of the Constitutional Court of Georgia George Papuashvili 1 It is a pleasure and an honour for me to pen the opening words of the first edition of the Constitutional Law Review published by the Constitutional Court of Georgia. The creation of this forum for exchange and debate about constitutional and human rights law is a most valuable initiative, and the Constitutional Court’s attachment to it is to be applauded. It is very appropriate for a publication about constitutional law to take both an international and comparative approach to its subject-matter. The constitutional jurisprudence of any State stands to be fortified and enriched by openness to the legal traditions and standards of fellow democracies. The great plurality of legal systems and institutions in Europe rest on the common foundations of respect for human rights and the primacy of the rule of law. It is simply natural to compare with and learn from the case law and legal scholarship of States founded on these basic principles. By actively soliciting contributions from abroad and by publishing in English as well as in Georgian, the conditions are most favourable for a lively international conversation on constitutional law to be conducted in the pages of this review. I must express particular thanks to the Constitutional Court for its emphasis in this publication on the case law of the European Court of Human Rights. The substance of the Convention replicates to a large extent the fundamental rights provisions of national constitutions, and so it is only natural to bring the Convention into the discussion. The links between the Constitutional Court and the European Court have intensified over the years that Georgia has been a Contracting Party to the European Convention on Human Rights. In every Convention State, such links are pivotal to the success of the relationship between the national and European levels, which is one of interdependence. By presenting and commenting Convention case law for the national legal audience — judges, advocates, academics and other officials and professional groups — this review will equip them to apply and uphold human rights at the domestic level. This is fully consistent with the design of the Convention system, which is predicated on the primary responsibility of the national authorities for ensuring the protection and exercise of human rights. The mandate of the European Court is in principle a subsidiary one, providing an authoritative and uniform interpretation of the Convention via the examination of individual complaints. The judgments and decisions of the Court must be made available in translation if they are to be cited and relied on before the domestic courts, and the contribution of this review to achieving this will be an important one. There is a vibrant conversation taking place in law journals throughout Europe. This first issue of the Constitutional Law Review will bring to that conversation a new perspective and a distinctive voice. We shall be all the richer for it. President of the European Court of Human Rights Jean-Paul Costa 2 FOR THE GOOD OF THE PEOPLE 60 years ago, on 23 May 1949, the Basic Law for the Federal Republic of Germany was promulgated. After the National Socialists’ tyrannical rule, the Basic Law created a democratic state under the rule of law in which human dignity and the fundamental rights are at the centre of all state action. At the same time, it designated the Federal Constitutional Court, and not for instance the Federal President, the Federal Government or Parliament, as the guardian of the constitution and the fundamental rights. In the course of the years, the Federal Constitutional Court has been carrying out this role, particularly in the procedure of the individual constitutional complaint, through a multitude of decisions, thereby lending practical effectiveness to the fundamental rights. However, the constitutional jurisdiction in Germany has not embarked on this successful path alone. When it was established, it was possible to take examples from other states, such as in particular the United States Supreme Court, as an orientation. In addition, the German constitution has been embedded in the process of European integration. In this context, a dialogue has developed between the Federal Constitutional Court and the European Court of Human Rights in Strasbourg, the Court of Justice of the European Communities in Luxembourg and the constitutional courts of the European states. This process has been accompanied and promoted for a long time by critical analyses of judgments and comparative-law investigations which are published in numerous legal journals. The Constitution of Georgia has created a constitutional court as well which reviews the constitutionality of state action and guarantees the observance of the constitutional human rights and liberties. This task also requires scholarly accompaniment and the comparative-law dialogue with the courts of other states. For criticism and the analysis of experiences and ideas of other constitutional courts can be very helpful when searching for the best solution for the protection of the individual’s fundamental rights and for the rule of law. Therefore I wish the journal ”Constitutional Law Review“, which is founded by this first issue, that it will find good acceptance among legal practitioners and scholars as well as among academic teachers and students and that the content published in it will bear rich fruit — for the good of the people of Georgia. Prof. Dr. Dres. h.c. Hans-Jürgen Papier President of the German Federal Constitutional Court Hans-Jürgen Papier 3 Georgia is a country that I have had the pleasure of visiting on a regular basis since the beginning of the 1990s and that has grown close to my heart. Its move toward democracy was not an easy one and Georgia has experienced economic crises, civil unrest and has undergone a revolution and a military conflict since its independence in 1991. This is quite a track record, but it seems to have made this country all the more stronger and its citizens all the more united and determined to make Georgia work as a true democracy. The decision to create a Constitutional Court of Georgia in addition to the ordinary judiciary was a decision that was already taken when the Constitution was adopted in 1995. It was clear from the outset that after drafting a Constitution, the next logical step for Georgia was to create a body capable of implementing it in order to turn this text from a mere declaratory text to a normative one that is capable of being used on a daily basis by Georgia’s society. The creation of this Court, over a decade ago, was a milestone in Georgia’s legal history and I am very proud to have witnessed this event and am delighted to follow the Court’s development ever since, especially its increasing role in consolidating democracy in Georgia. This task is not always an easy one and the Court’s role will from time to time be challenged, which is a natural process in a democracy. In this role, it is important for the Court to remember that it is an independent guarantor of the Constitution and that its main task is the protection of human rights. Constitutional Courts have also taken on other roles, and are increasingly safeguarding individuals against the excesses of the executive and, in some countries, they have even provided a safeguard against judicial errors by safeguarding the principle of a fair trial. The Constitutional Court of Georgia has acquired a considerable amount of experience over the years, first in its initial place of residence in Tbilisi, the bustling capital of the country, and now in Batumi, the major port of Georgia, its permanent residence since July 2007. I have had the pleasure of working with the first Chairman of the Constitutional Court of Georgia, Justice Avtandil Demtrashvili (1996 to 2001), who was then followed by Justice John Khetsuriani (until 2006) and now Justice George Papuashvili. Each of them has given a new impetus to the Court and brought its development several steps forward. It is a long standing tradition for Constitutional Courts to have an official law journal or gazette, which the Constitutional Court of Georgia is about to join with the publication of its first very own Quarterly Law Journal called the Constitutional Law Review. This journal will impart important information on the development of constitutional and human rights law, ranging from the judgments of the European Court of Human Rights to the judgments of European constitutional courts, accompanied by articles from national as well as foreign academics and practitioners. I am very excited about this new endeavour and will follow this publication with keen interest. Secretary of the Venice Commission Gianni Buquicchio 4 Dear Friends, I am pleased to have the opportunity to congratulate you on the issuance of this journal –a unique publication not only because it is first of such nature in Georgia, but because this is the result of fruitful collaboration between many organizations. At the same time this is the first instance in Georgia when university and Constitutional Court have joined their efforts to achieve one goal. And yet, the value of this journal is defined not only by an exceptional mode of mutual work that has been conducted to publish it. For me, as for the member of the University, this is an educational process which, I am sure, will support the rapprochement of the Constitutional Court with the public to make it more understandable for our citizens, on the one hand, and for all interested parties outside the country, on the other hand. This is the case when the pattern of the initiative should become a mode for all scientific and educational institutions: through this journal we send out to the world beyond Georgia’s boundaries what is interesting for outside readers, while opening for our readers the internal or external context in which the constitutional Court exists as an idea and as an institution. I wish success to all of us. Rector of Ilia Chavchavadze State University Gigi Tevzadze 5 Contents Herman Schwartz BUILDING BLOCKS FOR A CONSTITUTION 7 Konstantin Korkelia WHY SHOULD EUROPEAN STANDARDS ON HUMAN RIGHTS BE APPLIED IN THE ADMINISTRATION OF JUSTICE? 11 Jeremy McBride APPLYING THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONFLICT ZONES: RELEVANCE AND RESPONSIBILITY 18 Dragoljub Popović PROTECTION OF BUSINESS PREMISES UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS 41 Joni Khetsuriani THE AUTHORITY OF THE CONSTITUTIONAL COURT OF GEORGIA OVER ISSUES OF THE CONSTITUTIONALITY OF REFERENDUM AND ELECTIONS 48 Iakob Putkaradze JUDICIAL POWER AND BASIC RIGHTS IN THE NEW EDITION OF THE GEORGIAN CONSTITUTION 53 András Sajó FROM MILITANT DEMOCRACY TO THE PREVENTIVE STATE? 63 Rory O’Connell MILITANT DEMOCRACY AND HUMAN RIGHTS PRINCIPLES 84 Alexander Orakhelashvili STATEHOOD, RECOGNITION AND THE UNITED NATIONS SYSTEM: A UNILATERAL DECLARATION OF INDEPENDENCE IN KOSOVO 91 European Court of Human Rights Grand Chamber Judgment VARNAVA AND OTHERS v. TURKEY 111 Herman Schwartz BUILDING BLOCKS FOR A CONSTITUTION Herman Schwartz Noted author and constitutional scholar, Professor, Washington College of Law. American University, Washington, D.C. Those who write constitutions for emerging democracies face daunting challenges. First, they must write a document that enables the society to decide difficult and divisive questions peacefully, often under grave circumstances. At the same time they must establish effective protections for human rights, including the right of the minority to disagree and for the legislative minority to become a majority. Secondly, divisions and conflicts usually begin quickly and resolving these can create long-term problems. When the transformation is negotiated, as in much of the former Soviet bloc, the losers will try to hold on to as much power as they can. If the change involves the complete ouster of a regime, as in Iraq, then the winners will vie for power. The compromises resolving these disputes are often incorporated into the constitution, which can be troublesome in the long run. For example, compromises over slavery in the U.S. Constitution made it possible to get that Constitution adopted but were ultimately not good for the nation. Moreover, a constitution is written at a specific point in time, usually when the society faces very difficult economic, social and other problems. There is a temptation and often a necessity to deal with these problems quickly. But provisions designed to quickly deal with immediate problems may not be appropriate solutions for the long term. Overhanging all documents written at a specific time and place is the fact that it is impossible to foretell the future. And the future will always be different from what is anticipated. Thus, drafters of constitutions must give future governments the flexibility to meet unpredictable and unforeseeable challenges. One lesson from near-universal experience is that human rights must be effectively protected immediately. When an authoritarian regime is ousted, the society inevitably experiences a sense of liberation and a yearning for freedom. But that sense of excitement does not last very long. Experience in new democra- cies and old demonstrates that if human rights are not adequately protected initially, it will be difficult to do so later. PRELIMINARY CONSIDERATIONS First, should the constitution be written by an ordinary legislative body or by a special constituent assembly? If the decision is to go with the former, incumbent legislators can write a constitution that keeps themselves in office. A special constituent assembly representing as many elements in society as possible is preferable, even though it is more cumbersome and expensive. Another preliminary decision is about changing or amending the constitution after it is adopted. It should not be easy to do this. The document should reflect the deepest values of the society and the basic ground rules for the democratic process. These should be stable. On the other hand, since some of the provisions produced by the immediate pressures, conflicts and expectations of the initial period may be ill-suited for the long term, making changes difficult may prevent future governments from dealing adequately with unforeseen problems. For this reason, it would be wise to review the structural aspects of the constitution after a given period of time. One way is to provide for an expert commission at ten or twenty-year intervals to determine whether structural changes need to be made. This could be particularly useful after the first ten years, when at least some of the problems created by the constitution will become apparent. This review should not, however, include a weakening of the human rights provisions even though there may be a temptation to do this. As the initial euphoria wears off and expected quick improvements to living standards are not felt, there is less concern for human rights. Leaders and even peoples may be tempted to see human rights as a luxury, secondary to matters such as economic stability, even though experience shows that human rights rarely impede an effective response to these challenges. A related preliminary question is whether the constitution should be short or long. Many in the United States believe that because our short Constitution 7 Herman Schwartz has lasted for more than 200 years, short constitutions are the best, even for nascent democracies. I do not share that view. U.S. constitutional law cannot be found within the texts of the thirty-four original and amending articles. It can only be found in the over 550 volumes of decisions that a powerful and solidly established U.S. Supreme Court has issued over two centuries. These decisions have established our most fundamental constitutional principles and rights, few of which can be discerned from the bare text of the U.S. Constitution. Democracies that are new, however, do not have the luxury of two centuries to develop these rights and few, if any, start out with a powerful judiciary. They can and should build on American and other experience, and write these fundamental rights and principles into their constitutions without having to wait for the courts. This does not of course mean that the constitution should be very detailed. Constitutions that include too much can block the necessary flexibility. Deciding what should go into a constitution, what should be left to the legislature, and what should not be regulated at all, is one of the most basic and difficult initial questions. THE BUILDING BLOCKS So-called horizontal and vertical structural issues are the most difficult issues for they involve the distribution of power. They are almost always resolved amid political controversy, with short-term goals, particularly how to get and keep power, often dominant. An initial issue is whether to have a presidential or a parliamentary system. Although each has many varieties, they fall into two groups. The presidential system, of which the American version is the best known, usually involves the election of a chief executive by the people either directly or, as in the United States indirectly for a set period of years. The president, who is both head of state and head of the government, sets both domestic and foreign policy and picks ministers to implement these policies. Ministers are often subject to confirmation by the legislature, but ultimately subject to direction and control by the president. The legislature is independently elected, also for a set period of years. Neither the president nor the legislature is normally subject to dismissal by the other. This produces a system of dual legitimacy and clearly separated powers. The presidential system offers stability and, in the hands of a strong president, can provide vigorous 8 leadership. The stability can, however, turn into rigidity, for an unpopular or ineffective president cannot be easily removed until his term expires. Moreover, legislative stalemate and gridlock may result if the legislature is controlled by a different political party. If this division continues, the government may not be able to function efficiently for many years . In a parliamentary system, the parliament is the only source of electoral legitimacy. There is no separation of powers between the legislature and the executive -- the judiciary of course is independent but it stands outside the legislative sphere -- for the executive branch, usually called the government and headed by a prime minister, is chosen by the party that has a majority in the parliament or from a coalition reflecting a majority of the legislators. The head of state is a president with little power, and is usually chosen by the parliament. The prime minister and the government are accountable to the parliament and can be dismissed by it. Elections can be called at any time, providing flexibility. Since there is no formal separation of powers between legislative and executive, there is little chance of an impasse since a government or prime minister who loses the confidence of the parliament can be dismissed by it. The parliamentary system can, however, produce a frequent turnover of governments and great instability. It can also produce sudden drastic changes of policy when an opposition gains a majority, which can create a different kind of instability. There is no obvious answer to which system is better. The choice will often depend on history, the needs of the moment, and other factors. All the countries of the former Soviet bloc outside the Soviet Union, as well as the Baltic nations, adopted parliamentary regimes, in large part because they wanted to become a part of Western Europe which is almost entirely parliamentary. All the former non-Baltic components of the Soviet Union however, have adopted presidential systems. It must also be decided whether to have a unicameral (single house) or a bicameral (upper and lower house) legislature. If the state is to be a federal state with relatively autonomous components, such as the United States or Germany, it may be desirable to have a second (usually upper house such as the U.S. Senate) legislative chamber that represents the interests of the components. The second chamber is sometimes limited to certain decisions such as those affecting taxes and judicial or other appointments, or to matters directly affecting the components themselves. Building Blocks for a Constitution Whether to have a second chamber raises an additional question: how centralized is the state to be? How much authority and autonomy should be allocated to lower levels of government like regions or national units? How much independent authority should be allocated to cities, towns, and villages? The range of possibilities is wide, from highly autonomous units to total central control. There is good reason to allow as much autonomy to regional and local units as they can efficiently manage since a central administration is often unfamiliar with local conditions and needs. Also, participation in local government offers people a chance to participate directly in making many of the key decisions that affect their lives, and can be an important part of democratic self-governanc­e. THE JUDICIARY History has established the need for an independent judiciary that can keep the other branches from transgressing constitutional limits, and particularly where basic human rights are concerned. This can be either the regular judicial system, as in the United States, or a special tribunal, a constitutional court, limited to deciding constitutional questions and a few other matters, as in Germany. In the former case, the ultimate authority is a supreme court composed of regular court judges who are appointed for life and normally handle appeals from lower courts. Their business is to decide specific cases and they normally decide constitutional questions only if necessary to settle the dispute at issue. Most constitutional court members, however, are law professors and others not drawn from the regular court system and usually serve one, and occasionally more, 8-12 year terms. They decide constitutional questions if requested by high government officials, regular courts, and in many countries by private citizens who claim that their rights have been violated. Most emerging democracies have chosen to create constitutional courts, partly because judicial review by ordinary judges is not in their tradition, and partly because they mistrust the existing judiciary. Whatever system is chosen, the constitution must explicitly establish the courts’ authority to annul laws and other norms and acts inconsistent with the constitution. If there is a special constitutional court, it must not be burdened with extraneous responsibilities. Much of its work will be controversial, for one of its major responsibilities, particularly in the early years, is to establish the constitutional boundaries among governing authorities. Also, it will sometimes have to rule against the government in human rights cases. In all these instances, it will often be severely criticized by the losers. The constitution should not multiply the occasions for such attacks by giving the constitutional tribunals non-judicial or non-constitutional tasks, for at least in their early years they will lack the prestige and public support on which they depend for effectiveness. Bolstering an independent judiciary is another reason why a constitution should not be too brief. The more specific a constitution, the easier it will be for the courts to point to relevant language in the document to support their more controversial decisions, and the less they will be seen as having acted according to the judges’ own subjective beliefs. Because the courts’ decisions will often be politically sensitive, their independence and impartiality must be constitutionally guaranteed. The judiciary must be an independent branch of government with a fixed term and not be under the Ministry of Justice. The judiciary should control its financial and administrative affairs, free from executive involvement, though necessarily subject to the legislature’s ultimate control over the budget. The constitution must also provide that the lower court judges apply the constitution in their decisionmaking. In many of the new democracies, all too often those judges ignore constitutional issues when making decisions. PROTECTION OF HUMAN RIGHTS It is now established that the constitution must protect human rights and that the courts, particularly the special constitutional tribunals, should play a major role in providing that protection. The U.S. Supreme Court pioneered this development, but tribunals throughout the world now recognize this responsibility. Where international human rights agreements ratified by their governments are at issue, judges have considered themselves bound to observe these treaties. They have often looked to the courts of other nations for guidance on common problems. The result has been the creation of an international constitutional law of human rights. Every new constitution now contains a statement of basic human rights. This is not enough. The constitution must create institutions to make those rights enforceable. The constitution must specifically provide that persons who claim that their rights have 9 Herman Schwartz been violated have ready access to a court, and that if a violation has occurred, the victim can obtain an adequate remedy for that violation. Many nations have found that an ombudsman (often an investigator or mediator of complaints) is useful in this regard. A special human rights office in the state prosecutor’s office can also be helpful. Of vital importance to democracy is that the citizenry be able to learn whether the government is doing its job properly and acting in the best interests of the people. The constitution should contain provisions allowing citizens inexpensive and prompt access to all materials in government files, except those the exposure of which can be shown to endanger national security, personal privacy, law enforcement or some other vital national interest. Leaving to the legislature the matter of whether to adopt a measure like this is unwise, for many governments resist such measures or try to weaken them substantially. Few public officials are eager to expose their activities to public scrutiny. ADOPTING THE CONSTITUTION The final question is how should the constitution be adopted? By the special constituent assembly discussed earlier? By the regular parliament, as in many European countries? By the general public? Should the public’s involvement take place before or after the constitution is drafted? If the latter, how should the public’s participation be obtained? These and other questions have been answered in different ways, and though many political scientists believe that the approval of a constitution should be by the people, that has not been the universal approach. Writing a constitution is an experiment, the results of which will always be significantly different from what was intended and anticipated. Moreover, the success of a constitution is usually the result of external factors -- the economy, the social forces at work within the society, the nation’s foreign relations, natural disasters and many other factors over which constitutional drafters have no control. Despite these difficulties, new constitutions for emerging democracies can make a difference. They offer a rare opportunity to create a society in which human beings can live in peace and freedom. History does not offer a nation many such moments, and when they occur, the challenges must be met, for the nation’s future is at stake. 10 Konstantin Korkelia WHY SHOULD EUROPEAN STANDARDS ON HUMAN RIGHTS BE APPLIED IN THE ADMINISTRATION OF JUSTICE? Konstantin Korkelia Professor of International Law of Human Rights Tbilisi State University The application of European standards to human rights cases presents the possibility of making proper court decisions. European standards present certain guidelines for protecting human rights and fostering the maximum protection of those human rights. Some courts of certain European states have directly referred to this in their decisions on European standards as to the guideline on the protection of human rights.1 In administering justice, the application of European standards has several significant preponderance, and if used, the Georgian courts will have the opportunity to ensure the protection of human rights in compliance with European standards. In administering justice, the application of European standards could be applied as follows: a. to properly explain general or vague domestic legal norms; b. to prevent any collision with domestic normative acts; c. to narrow the gap in domestic normative acts; d. to foresee the decisions of the European court; e. to develop national standards of human rights; f. to render legal credibility to court decisions. a) Application of European Standards as to properly explain general or vague domestic legal norms Application of European standards in administering justice provides the national court with the opportunity to properly interpret general or vague norms of Georgia’s domestic normative acts.2 G. Ress, The Effect of Judgments and Decisions in Domestic Law, in: The European System for the Protection of Human Rights, R. Macdonald, F. Matscher & H. Petzold (Eds.), 1993, 842. aseve ix. Cosmos Press v. The Police, 2 CLR 73, 1985, 76-81. 2 N. Bratza, The Treatment and Interpretation of the European Convention on Human Rights By the English Court, in: Aspects of Incorporation of the European Convention of Human Rights into Domestic Law, J.P. Gardner (Ed.), 1993, 69; See also the Statement of Lord Daning: “The position […] is that if there is any ambiguity in our statutes or uncertainty in our law, then these courts can look to the [European] Convention [on Human Rights] as 1 In deciding a lawsuit, a national court may, in principle, apply a domestic normative act, but in order to properly interpret its provision it may also apply the European standard of human rights. In this case, the European standard and domestic normative act are compatible. Accordingly, the legal basis of court decisions will be a domestic normative act (for instance, a law) as well as European standard of human rights. The application of European standards as the means to interpret domestic normative acts takes place when a domestic normative act does not sufficiently explicitly settle public relations, thus presenting the risk of making an improper decision. The court can, by applying the European Convention, ensure proper interpretation of a domestic normative act. It is most common to apply the European Convention as a means to clarify domestic normative acts in court practice of the states which are parties to the Convention. The role of applying European standards of human rights as the means to properly interpret a domestic normative act is approved not only in the national court practice of the states where the European Convention is recognized as the integral part of the legislation but also of those in which the Convention is not recognized as such. It is noteworthy, that case law of the European Court on Human Rights is practiced not only in the courts of the states which are parties to the Convention but also in courts of non-European states.3 This trend is partly stipulated with the similarity of provisions envisaged by the European Convention and of the civil and political rights of the international pact.4 Decisions of non-European states are proof of this. For instance: In hearing the case Philargita v. PenaIral the US cassation court applied the case law of the an aid to clear up the ambiguity and uncertainty, seeking always to bring them into harmony with it.” Lord Denning, in: R. v. Chief Immigration Officer, Ex parte Bibi [1976] 3 All E.R. 847. 3 E. Benvenisti, National Courts and the International Law on Minority Rights, 2 Austrian Review of International and European Law, 1, 1997, 4-5. 4 R. Lillich, Towards the Harmonization of International Human Rights Law, in: Recht zwischen Umbruch und Bewahrung: Ferstschrift für Rudolf Bernhardt, 1995, 467. 11 Konstantin Korkelia European Court in relation to the banning of torture;5 The Supreme Court of Zimbabwe in hearing the case Tyrer v. the United Kingdom applied the decision of the European Court in order to testify that corporal punishment presents the type of “inhuman and degrading” punishment banned by Article 3 of the European Convention;6 the same court in hearing another case pertaining to juvenile corporal punishment applied the decisions the European Court made on the cases: Tyrer v. the United Kingdom and Campbell and Cosans v. the United Kingdom.7 The Supreme Court of Zimbabwe in hearing one case considered the decision of the European Court on the case: Soering v. the United Kingdom;8 The Supreme Court of India has referred to European Convention and case law of European Court in order to interpret the Constitution of India;9 The application of European Court case law is also known in the court practice of Canada.10 Based on this information, in administering justice, non-European countries apply European standards of human rights in order to ensure proper interpretation of general and vague domestic normative acts of the state.11 The Courts of Georgia should interpret the provisions of the Constitution of Georgia in accordance with European standards. By applying these standards, the court will avoid such interpretations of the constitution that protect human rights with lower standards than what is envisaged by the European standards. The Courts of Georgia may apply the European standards as a guideline, fostering its capacity to make a proper decision. National courts should apply European court case law; otherwise there is a big likelihood that the provisions of the European Convention will be interpreted 630 F 2d 876 (1980). Ncube, Tshuma and Ndhlovu v. The State (1988) 2 Afr. L. Rep. 702. quotation: J. Merrils, The Development of International Law by the European Court of Human Rights, 1993, 20. 7 The case _ Campbell and Cosans v. the United Kingdom) (1982) — is about banning corporal punishment at schools as a disciplinary measure See. Juvenile v. The State, Judgment No. 64/89, Crim. App. No.156/88. cit.: J. Merrils, The Development of International Law by the European Court of Human Rights, 1993, 20. 8 J. Dugard, The Role of Human Rights Treaty Standards in Domestic Law: The Southern African Experience, The Future of UN Human Rights Treaty Monitoring, P. Alston & J. Crawford (Eds.), 2000, 277-278. 9 A. Lester, Freedom of Expression, in: The European System for the Protection of Human Rights, R. Macdonald, F. Matscher & H. Petzold (Eds.), 1993, 468 (footnote 16). 10 Report of the Sixty-Sixth Conference, International Law Association (1994), 1994, 334; Y. Iwasawa, The Domestic Impact of International Human Rights Standards: The Japanese Experience, The Future of UN Human Rights Treaty Monitoring, P. Alston & J. Crawford (Eds.), 2000, 267. 11 A. Bayefski, International Human Rights Law in Canadian Courts, in: Enforcing International Human Rights in Domestic Courts, B. Conforti & F. Francioni (Eds.), 1997, 321; R. Lillich, Towards the Harmonization of International Human Rights Law, in: Recht zwischen Umbruch und Bewahrung: Ferstschrift für Rudolf Bernhardt, 1995, 467. 5 6 12 in a different manner which might cause the state to violate the commitments envisaged by the European Convention. If the national court fails to apply European standards it may even restrictively interpret the right that is granted to a person by the European standards. In consequence, the person will not be provided with the right that is granted to him/her by the European standards. In such a case, if the person refers to the European court testifying that the national court has failed to ensure him/her with the right granted by the European standards, he/she will win the lawsuit in the European Court and the latter will establish that the state in question is restrictively interpreting the European standards as defined by the case law of the European court and has not met the commitments envisaged by the Convention.12 b) The Application of European Standards as a Tool Preventing Collision with the Domestic Normative Act In the court practices of the European states, European standards of human rights are also applied during collisions with domestic normative acts. In such cases, the national court applies the Europeans standard if the latter has established that a lower domestic normative act (for example, a law) contradicts the European standard. In Georgian courts the occasional detection of a collision between the European standards and human rights standards reinforced by domestic normative acts could be interpreted by the fact that there are few legal contradictions between international treaties of human rights and the domestic normative acts of Georgia. However, such interpretation could be conclusive only in theoretical terms. In practical terms, this reason will be inconclusive, which, inter alia is derived from the fact that in a state which is still in the process of establishing its legal base in relation to human rights, the probability of contradictions are much higher than they are in those states having long legal traditions in ensuring human rights in compliance with modern standards.13 12 J. Velu, Report on “Responsibilities for States Parties to the European Convention”, in: Proceedings of the Sixth International Colloquy about The European Convention on Human Rights, 13-16 November 1985, 1988, 592-593. 13 The study conducted by independent experts on the compatibility of the Georgian legislation with the requirements of the European Convention of Human Rights shows the necessity of bringing many of Georgia’s normative acts in conformity with the European Convention. Study on the Compatibility of Georgian Law with the Requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, HRCAD(2001)2, 2001; See also the reports of the European Councils’ experts. Report on the Conformity of the Legal Order of Georgia with Council of Europe Standards, AS/Bur/Georgia (1997) 1, Parliamentary Assembly, Council of Europe, 25 September 1997. Why Should European Standards on Human Rights be Applied in the Administration of Justice? To prove this, we can bring an example from the Constitution of Georgia. In general, it could be noted that if a legal contradiction with the European standards of human rights can be found in the Constitution of Georgia, it should not be discarded that there might be some other contradiction in relation to other domestic normative acts. Paragraph 4 of Article 18 of the Constitution of Georgia establishes a provision stipulating that “physical or psychological coercion of a detainee or of a person whose liberty is restricted in a different manner, is inadmissible.” The provision itself is derives no problem in terms of compatibility with the European standard, but what is problematic is Paragraph 1 of Article 46 which grants the president the right to limit certain paragraphs established by the Constitution, among them Article 18, during emergencies or martial law. So it turns out that the president is authorized to allow physical or psychological coercion of a detainee or of a person whose liberty is restricted in a different manner, which directly contradicts Article 3 of the European Convention of Human Rights (which bans torture, inhuman or degrading treatment, or punishment) and the case law of the European Court. Article 18 of the Constitution of Georgia would have been problematic had the constitution not been amended and the mentioned paragraph not been transferred as an additional 3rd paragraph from Article 18 to Article 17 of the Constitution. Contradiction with international, among them European, standards prompted this amendment to the Constitution of Georgia. These examples give a clear indicator that legal contradictions could even emerge between the Constitution of Georgia and international and European standards of human rights, which in this specific case lasted almost 11 years before an amendment was made in the Constitution. In general, the application of the Convention in court practice of the states that are parties to the European Convention against the norm established by domestic normative act is comparably infrequent. Notwithstanding, two cases can be traced in the court practice of Georgia which are reviewed below. The issue of protecting human rights with different standards adjoins with that of the collision of norms. In some cases the principle of effective protection of human rights may contradict that of hierarchical relations. If the ordinary court establishes that domestic normative acts (for instance a law) provides a person with more effective protection than the European Convention of Human Rights, the ordinary court shall grant preponderance and apply the domestic normative act in spite of the fact that Georgian legislation grants a higher level to the European Convention. Such an approach is justified by the effective protection of human rights. The Court of Georgia shall apply the act which secures more effective protection of human rights. It would not be right if, during the collision between European Convention and the law, the Court of Georgia applies European Convention (which has a higher hierarchical level than the law) if the law provides more protection of human rights of a person than the European Convention in detriment to the more effective protection of human rights as established by the law. One of the preponderance of the application by the courts of the European Convention of Human Rights as well as of international treaties of human rights is that it gives the opportunity of identification of such a domestic normative act that protects human rights with lower standards than stipulated by the European Convention. If a court does not apply the European Convention, and universal international treaties, it will simply be unable to identify the collision between a domestic normative act and the European Convention and accordingly, in making a decision the court will be guided by lower standards of protection of human rights. Admittedly, in this specific case the European Convention will have prevalence but there is no assurance that in future, without uprooting the collision, another court in case with similar circumstances will apply the European Convention and grant preponderance to the latter. c) Application of European Standards as the Tool for Narrowing the Legal Gap in Domestic Normative Acts In administering justice, European standards of human rights can be applied in order to narrow the legal gap in Georgia’s domestic normative acts. This occurs when a domestic normative act (for example, a law) does not regulate relevant public relations (so the legal vacuum is palpable) while such relations are regulated by the European Convention. To demonstrate the application of the European Convention by national courts as the sole legal basis, the 1997 decision of the Criminal Chamber of the Supreme Court of Poland can be brought.14 14 See the verdict of the Criminal Chamber of the Supreme Court of Poland on the case — Mandugeck. 29 July, 1997See also A. Drzemczewski & M. Nowicki, Poland, in: Fundamental Rights in Europe: The European Convention on Human Rights and its Member States (1950-2000), R. Blackburn & J. Polakiewicz (Eds.), 2001, 13 Konstantin Korkelia The case was about the extradition of two wanted Chinese citizens to China arrested in Poland on charges of fraud and extortion. The Chinese authorities requested extradition of those persons from Poland. To nullify the extradition order before the Supreme Court, the Chinese citizens referred to two arguments: a) in China capital punishment is envisaged for such crimes; b) there is well-founded doubt that both of them will suffer torture and/or inhuman or degrading treatment or punishment. Based on these arguments, they were attesting that their extradition to China would be considered as a violation of Article 3 of the European Convention thus, requesting cancellation of the extradition order. The Supreme Court of Poland nullified the extradition order. The court made a statement which, because of its significance is quoted in full: “That China is not part to the European Convention of Human Rights is not essential as the issue is related to relations between China and Poland. The Convention (the European Convention of Human Rights) obligates the high contracting parties with commitments to `provide everyone with rights and liberties defined in I part of the Convention`. Besides, we shall rely not only on the text of the Convention but also on the case law of the Strasbourg Court. The court of Strasbourg has repeatedly interpreted the Convention regarding the extradition. […] Article 3 of the Convention bans torture or inhuman or degrading treatment or punishment. 15 Extradition to the state in which a person may sustain torture or degrading treatment or punishment amounts to the violation of the article. It is not necessary to prove that the person will indeed sustain such a treatment or punishment. Suffice is to identify the probability of such a treatment or punishment. (See Soering v. the United Kingdom — 1989; Kruz Varass and other v. Sweden —1991; Vilvaraja v. the United Kingdom — 1991; Ahmed v. Austria - 1996).15 Thus, extradition is inadmissible if there is a likelihood that the person to be extradited will sustain torture or inhuman or degrading punishment. The same rule holds to Paragraph 1 of Article 6 of the European Convention. [...] Extradition is inadmissible if there is a probability that the person to be extradited will not be provided with principle assurances of the just court after the extradition court proceedings. 15 M. O’Boyle, Extradition and Expulsion under the European Convention on Human Rights: Reflection on the Soering Case, in: Human Rights and Constitutional Law, Essays in Honour of Brian Walsh, J. O’Reilly (Ed.), 1992, 96-98. 14 This court is unable to identify any fact regarding the prevailing situation in China. We can only rely on the conclusions of regional courts (which were not discarded by the appeals court) according to which, there is a big likelihood that the plaintiffs, if extradited, would be treated in a way that infringes on international law, particularly, Article 3 of the European Convention.” It is clear from the mentioned case that the Supreme Court of Poland applied the European Convention (as well as European Court case law) as a tool narrowing the legal vacuum in national legislatio­n. d) Application of European Standards as a Tool to Foresee the Decisions of the European Court Application of the case law of the European Court by national courts is also caused by the fact that it gives the national courts the opportunity to foresee the decisions which the European Court will supposedly make against the state if the application is filed in the European Court. If the European Court of Human Rights on the previous case established the infringement of the Convention by the state there is a big likelihood that in future in a similar case which might be heard by the European Court, the latter will make a similar decision, in particular, it will establish a violation of the Convention by the state.16 If national courts will not consider case law of the European Court, and will not correct legislation and practice, especially that of court practices, in compliance with the decisions made previously by the European Court on similar cases they will pose the threat that the European Court will establish infringement of the European Convention by the state. In other words, if the national court discards the previous decisions made by the European Court on similar cases in which the European Court has established the infringement of the Convention, supposedly, in case of a suit against the state, the European Court will make a similar decision.17 Clearly, it is in the interest of the state, and of its national courts to apply case law of the European Court that will grant the latter with the possibility to protect the rights of physical and legal entities with 16 J. A. Carrilo Salcedo, The European System of Protection of Human Rights, in: Judicial Protection of Human Rights at the National and International Level, vol. I, 1991, 376-377; J. Merrils, The Development of International Law by the European Court of Human Rights, 1993, 12. 17 E. Alkema, Responsibilities Deriving from the Implementation of the European Convention on Human Rights: Responsibilities for States Parties to the Convention, in: Proceedings of the Sixth International Colloquy about The European Convention on Human Rights, 13-16 November 1985, 1988, 708. Why Should European Standards on Human Rights be Applied in the Administration of Justice? the European standards. If national courts have applied case law and protected the rights of persons with the standards established by the latter, it is less likely that these persons will refer to the European Court to protect their rights and hence, and it is not probable that European Court will establish that the state has infringed the European Convention. As a rule, the fact that the European Court of Human Rights in making a decision considers its previous decisions (case law) does not necessarily mean that it can not change its judgment and interpret the Convention provisions differently. In one case — Cossey v. the United Kngdom — the European Court noticed that application of the practice on hearing the next cases “does not obstruct the court to divert from the previous decision if the latter has conclusive reasons for that. Such an alteration may take place, for instance, in order to provide such interpretation of the Convention which reflects public transformations and is compatible with modern requirements.”18 Both the Convention and the European Court have practiced the probability of such decisions which differs in its modern approach to certain matters of the protection of human rights from the previous one.19 Article 30 of the European Convention directly foresees the adoption of such a decision that is incompatible with the previous decision made by the court.20 As for the European Court’s practice in relation to the interpretation of the European Convention differing form the previous interpretations, there have been multiple cases in court practice when the European Court interpreted the provisions of the Convention in a different manner.21 e) Application of the European Standards as the Tool for the Development of National Standards of Human Rights One of the preponderance for the application of the European standard of human rights is that is renders the opportunity to develop national standards of human rights along with the European ones. Septemeber 27, 1990, Series A, no. 184, paragraph 35. See cases: Delcourt v. Belgium — 1970 and Borgers v. Belgium (1990); Schiesser v. Switzerland (1979); See also L. Wildhaber, Precedent in the European Court of Human Rights, in: Protecting Human Rights: The European Perspective, Studies in Memory of R. Ryssdal, P. Mahoney, F. Matscher, H. Petzold & L. Wildhaber (Eds.), 2000, 1532-1533. 20 Article 30 of the European Convention stipulates that `if a case heard in the Chamber raises the important issue influencing the Convention or interpretation of its protocols, or if court decision on the case may ensue incompatible outcome, the Chamber has the right to deny the jurisdiction, at any time, before making a decision in favour of a higher Chamber, if the all parties of the case do not contradict to it.` 21 J. Merrils, The Development of International Law by the European Court of Human Rights, 1993, 14. 18 19 According to the European standards of human rights one of the facets for the interpretation of the provisions of legislation is that the European Convention is recognized as the ‘vibrant’ document. Recognizing the Convention as such signifies that its provisions shall be interpreted in accordance with the changes brought about in the awareness of the society.22 Unless the provisions of the Georgian legislation are interpreted in accordance with the European Standards, the context of the norms of legislation may ‘trail’ the rights of that protected by the European standards increasingly developing with the rise of the standards of the protection of human rights. Unless a national court shall not apply the European standards for the interpretation of legislation, legislation provisions may be interpreted more restrictively, thus violating the rights envisaged by the European standards.23 According to the European standards of human rights, the interpretation of domestic normative acts of Georgia shall foster the harmonization of protection of human rights’ standards envisaged by the European Convention, by case law of the European Court and by Georgian legislation. It is clear that such harmonization shall take place in order to raise the protection of human rights standards. If a Georgian legal norm is interpreted by the case law of the European Court and the national court has inferred that case law of the European Court establishes higher standards for the protection of human rights, the national court shall interpret the provisions of legislation in a way that shall be compatible with case law. On the other hand, if the national court has established that interpretation of legislation according to case law of the European Court has a contradictory result, i.e. the Court of Georgia shall not interpret legislation with lower standards established by case law of the European Court if such an interpretation may restrict the right envisaged by legislation. The interpretation of Georgian legislation with the European standards of human rights is particularly important in relation to the Constitution of Georgia. Interpretation of the constitutional provisions in compliance with the European Convention of Human Rights is facilitated by similarities between the provisions of the Constitution of Georgia and the European Convention. Such a similarity is caused by the fact 22 S. Jensen, The European Convention on Human Rights in Scandinavian Law: A Case Law Study, 1992, 236. 23 W. Binchy, The Bill, the Advantages and Disadvantages of the Approach Taken, and Possible Alternatives, paper presented to the Conference of the Law Society of Ireland on the European Convention on Human Rights Bill (2001), 19 October 2002. 15 Konstantin Korkelia that the provisions of the European Convention were considered during the elaboration of the Constitution of Georgia. Provisions of the European Convention even served as the foundation for some articles of the Constitution of Georgia. As German expert, V. Goull, remarked in his study, in which he explored the elaboration process of the Constitution, “analysis and assistance conducted by the Venice Commission has established on the early stage the compatibility of the norms of the draft with those of the European Council, to the fore, with those of the European Convention of Human Rights.”24 Such a similarity is particularly evident in relation to Paragraph 3, Article 22 and Paragraph 4 of Article 24 of the Constitution of Georgia formulations of which are similar to those of relevant provisions of the European Convention. Given the European Court’s significant progress in developing and specifying the material articles of the European Convention, the European Convention and case law of the European Court may serve as a guideline for interpreting the provisions of human rights of the Constitution of Georgia. To demonstrate, the similar regulation of the right to freedom of expression could be referred to. Paragraph 2 of Article 10 of the European Convention of Human Rights establishes that in order to consider restriction of freedom of expression as reasonable, it must meet three conditions: 1) to be defined by the law; 2) to serve fair purpose;25 and 3) to be indispensable in a democratic society. The European Court of Human Rights, on the basis of these three conditions, evaluates whether it is reasonable or not to restrict the mentioned right of the Convention. If the European Court identifies that at least one condition is not satisfied, it shall consider that the restriction of human rights is unreasonable and the state has infringed upon the relevant provision of the European Convention. Paragraph 4 of Article 10 of the Constitution of Georgia, like Article 10 of the European Convention, establishes three analogical conditions regarding the restriction of freedom of speech. In particular, it is noted in Paragraph 4, Article 24 that “implementation of the rights listed in the first and second paragraphs of this article may be restricted by the law under such 24 See V. Goull, elaboration and adoption of the Constitution in Georgia, pp.374, see also pp.32. 25 For example, for the purposes of national security, territorial integrity or public safety, for the prevention of disorder and crime, for the protection of health or morality, reputation and rights of others, for the prevention of unfolding confidential information or for the maintenance of court authority or impartiality. 16 conditions which are indispensable in a democratic society to ensure national security, territorial integrity or public safety; to prevent crime; to protect the rights and dignity of others; to prevent the unfolding of confidential information; or to ensure the independence and impartiality of the court.” It is clear from the comparison of the provisions between the Constitution of Georgia and the European Convention that the conditions established by these acts are similar in relation to the restriction of the freedom of speech (expression).26 Paragraph 2 of Article 24 of the Constitution of Georgia like Paragraph 2 of Article 10 of the European Convention establishes three conditions under which freedom of expression might be reasonably restricted. The Court of Georgia can apply the European Convention and the case law of the European Court and use them to evaluate the reasonability of the restriction of freedom of speech. Application of the European Convention and case law of the European Court will give the possibility to the courts of Georgia to make such a decision compatible with case law of the European Court. The European Convention and case law of the European Court will serve as the guideline facilitating court of Georgia to making a proper decision.27 It should be noted that while Article 24 of the Constitution of Georgia regulates “freedom of speech,” Article 10 of the Convention regulates “freedom of expression.” The latter is broader and contains not only judgments expressed by “speech” but also in other forms (for instance, works of art).28 The Courts of Georgia may use such a difference between the Convention and the right regulated by the Constitution for such an interpretation of the Constitution of Georgia that is compatible with the European Convention of Human Rights. f) The Application of European Standards as the Tool Rendering Legal Credibility to Court Decisions If the national court reviews the European Convention and the case law of the European Court in detail and, along with the domestic normative act (for instance the law), and finds in favor of the European 26 Notwithstanding the similarity between the Constitution and the provisions envisaged by the Convention in relation to freedom of speech, it shall be noted that that the European Convention also mentions one lawful reason — protection of health and morality on the basis of which human rights might be restricted, which is not envisaged by article 24 of the Constitution. Study on the Compatibility of Georgian Law with the Requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, HRCAD(2001)2, 2001, 24. 27 J. Polakiewicz, The Application of the European Convention on Human Rights in Domestic Law, 17 Human Rights Law Journal, N11-12, 1996, 407. 28 Muller v. Switzerland May 241988, Series A, no. 133, Paragraph 27. Why Should European Standards on Human Rights be Applied in the Administration of Justice? standards of human rights, such a decision shall supposedly be more conclusive for the plaintiff, whether or not the decision is or is not in his/her favor.29 It is less likely for a plaintiff to question the fairness of the decision if he/she sees that in its decision the national court has applied not only domestic legislation (which in the plaintiff’s opinion might be deficient and does not meet with European standards) but also the European standards of human rights which the plaintiff, as a rule, does not question the quality of rights protected by these standards. Attention to the positive side of the application of the European standards of human rights, as to the tool rendering legal credibility to the national courts’ decision has been drawn in a survey conducted among the judges of Georgia. The survey reads that “in the opinion of the judges, the principal success in applying international treaties of human rights and referring to the decisions of the European Court in their specific activity is the enhancement of credibility of their decisions. “This, on one hand, indicates having a high legal culture, while on the other, reinforces the belief of the parties precision of court decisions and raises the authority of court since there is a reference to relevant European experience.”30 In the same survey, one of the judges of the city court puts emphasis on the importance of the application of human rights’ standards as a means of raising public trust towards the court. In his opinion, “If a citizen observes that a certain issue is regulated similarly across the world and that not only the local court is `unjust` as he/she deems, he/she will have more confidence towards the court.”31 If judges apply the European standards of human rights and provide protection of human rights on their basis in administering justice, such decisions will be more conclusive to the parties of the lawsuit, which may cause fewer cases with the second court instance or ending in fewer appeals to the European Court of Human Rights after having completed all domestic means for the protection of human rights. Thus, applying the European standards of human rights in administering justice has one more very im- portant preponderance. To the fore, it will release the workload of cassation and appellation instances of Georgia. If a plaintiff is convinced that the court has assessed the circumstances over the case not only on the basis of domestic normative acts but also on the European standards and consequently, the plaintiff has been firm in his/her opinion that the decision was fair, the probability of appealing the case to the higher court instance would diminish. Moreover, the aim of the plaintiff is a fair court decision rather than appealing the case. It will also save the resources and release the workload of higher court instances. If the court’s decision is conclusive for the plaintiff (even though his/her complaint was not satisfied) since the national court applied the European standards of human rights along with domestic legislation, it is less likely that he/she would refer to the European Court of Human Rights. If the plaintiff is convinced that the national court adopted a fair decision which is based not only on domestic law but also on European standards, than the case would be finished on a national level. If the plaintiff is not sure that he/ she will win the case on the European level, he/she will not appeal to the European Court, also bearing in mind that presently, hearing a case in the European court takes a long time (4-5 years). On its part, it should be favorable for the state as well for making a decision not only on the basis of domestic legislation but also on the European standards convincing the plaintiff of the fairness of the decision. It should also not be in the interests of the state that a citizen refers to the European court for the protection of his/her rights. The mentioned analysis clarified that the application of the European standards of human rights is in the interest of all parties, giving the opportunity to decide a lawsuit fairly, promptly and incurring less expenses for both the plaintiff and court (i.e. — the state) alike. 29 J. Polakiewicz, The Implementation of the ECHR and of the Decisions of the Strasbourg Court in Western Europe: An Evaluation, The Domestic Implementation of the European Convention on Human Rights in Eastern and Western Europe (eds. E. Alkema, T. Bellekom, A. Drzemczewski et al.), 1992, 160. 30 See survey `On application of international treaties of human rights and the decisions of the European Court conducted` by BCG Research under the request of UNDP. See international treaties of human rights and Georgia’s court practice, I part, 2006 pp.43 31 See pp. 44. 17 Jeremy McBride APPLYING THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONFLICT ZONES: RELEVANCE AND RESPONSIBILITY Jeremy McBride Barrister, Monckton Chambers, Gray’s Inn, London, Visiting Professor, Central European University and Honorary Senior Research Fellow, University of Birmingham. I. INTRODUCTION1 The occurrence of armed conflict and internal disturbances and tensions will pose considerable dangers for the enjoyment of human rights. The risk to them will come not simply from those whose resort to force and efforts to foment conflict and hostility is illegitimate — both are incompatible with the democratic society with which the European Court of Human Rights2 has emphasised the rights in the European Convention on Human Rights3 and its Protocols are inextricably linked4 — but also from the steps taken by a state to resist and defeat such force and efforts — notwithstanding that this may be required by the duty to safeguard the rights and freedoms of those within its jurisdiction5 — as it may disregard the requirements of the Convention in doing so. Armed conflict entails the use of military forces, whether in an internal or international context, and internal disturbances and tensions are taken to be a sustained situation rather than an isolated incident (such as a riot). Neither may be so grave as to involve a threat to the life of the nation and thus justify the making of a derogation under Article 15 but in at least some circumstances this will be warranted. Both would appear to have implications for human rights in at least two discrete (even if potentially overlapping) situations, namely, in the course of the actual conflict or disturbance (ie, where force is actually beThe second part of this paper is a revised and updated version of the author’s Study on the Principles Governing the Application of the European Convention on Human Rights during Armed Conflict and Internal Disturbances and Tensions (DH-DEV (2003)001, 19 September 2003). 2 “The Court. 3 “The Convention”. 4 See Refah Partisi (Welfare Party) v Turkey, 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003 [GC]. 5 Ibid. ing used) and in other parts of the country while such conflict or disturbance is taking place. Action taken to deal with the conflict or disturbance in the former situation6 may not be acceptable in the latter one and the recognition that an all-embracing approach may be inappropriate will be important when making preparations before such situations arise, particularly as regards shaping the attitude of those who will ultimately be involved in restricting rights and freedoms. The second part of this paper considers first the general considerations relating to the Convention that should inform measures taken in response to conflict and disturbance. It then looks at the way in which the Court has dealt with their application in the context of individual rights and freedoms. It concludes with suggestions for transforming the principles identified into a recommendation or guidelines.7 The third part of the paper examines the issue of responsibility under the Convention in conflict zones. Although this will not generally be problematic in most situations occurring in such zones, both their location and the possible involvement in situations occurring in them of not only more than one High Contracting Party to the Convention but also of non-parties and non-state actors raises the possibility of responsibility being shared, transferred and even ousted. The first and second of these possibilities reflects the complexity of the situation that may exist in a conflict zone but the third is disturbing as it means that the most significant human rights protection mechanism will no longer be available for those caught up in such a situation. 1 18 Hereafter referred to as to “the conflict zone”. This study does not address the issue of the applicability of the Convention to conflict or disturbance outside the territory of any of the High Contracting Parties but location has been seen as an important factor in determining whether particular action falls within ‘jurisdiction’ for the purpose of Article 1; Banković and Others v Belgium and Others (dec.), 52207/99, 12 December 2001 [GC]. 6 7 Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility II. RELEVANCE IN CONFLICT ZONES A. General considerations 1. Fundamental principles applicable in any context In applying the Convention to these situations there are a number of fundamental principles applicable to its operation in any context that must continually be borne in mind. However, it ought to be underlined that there is no question about the applicability of the Convention to conflict zones as this is explicitly recognised in two of its provisions8 and Protocols No. 6 and No.13.9 The requirements of the Convention are thus not ousted by the rules of international humanitarian law.10 In the first place there is a need to respect the legality requirement for any restriction, meaning that it not only has a specific legal basis but that the content of the rule is both accessible and foreseeable for those to whom it applies.11 The failure to invoke domestic law for a military operation leading to the death of civilians was thus a significant element of the finding in Isayeva v Russia12 that Article 2 had been violated. Secondly any restriction must be applied in a manner that is both non-arbitrary13 and does not entail any difference in treatment between categories of persons for which there is no rational and objective justification.14 Measures taken against someone solely on account of factors such as his or her race, ethnicity, language and religion are thus inadmissible but, as allegations may be hard to prove,15 particular attention ought to be given to ensuring that any action taken during a conflict or disturbance is not actually being used as a guise to harm someone because of his or her personal characteristics or beliefs.16 Articles 4b and 15 The former permitting and the latter prohibiting the use of death penalty in time of war. 10 It should be noted that the International Court of Justice reaffirmed the applicability of international human rights law during armed conflict in both reaffirmed the applicability of international human rights law during armed conflict Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and its judgment in the Case Concerning Armed Activities on the Territory of the Congo. The same view was taken by the United Nations Human Rights Committee in its General Comment No. 31 on Article 2 of the International Covenant on Civil and Political Rights. 11 Silver v United Kingdom, 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, 13 March 1983. 12 Isayeva v Russia, 57950/00, 24 February 2005. 13 Witold Litwa v Poland, 26629/95, 4 April 2000. 14 A requirement of Article 14 of the Convention; see Gaygusuz v Austria, 17371/90, 16 September 1996. This provision is not considered further below. 15 See Ireland v United Kingdom, 5310/71, 18 January 1978 and Yöyler v Turkey, 26973/95, 24 July 2003. 16 See Nachova and Others v Bulgaria, 43577/98 and 43579/98, 6 July 2005 [GC], Moldovan and Others v Romania (No 2), 41138/98 and 64320/0112 July 2005 and Bekos and Koutropoulos v Greece, 15250/02, 13 December 2005, 8 9 Thirdly the imposition of all restrictions must respect the principle of proportionality and should not lead to any rights or freedoms being entirely extinguished.17 Finally there are certain rights and freedoms which are non-derogable whatever the context and thus cannot be subjected to any limitations.18 These principles need to be at the forefront of any response in the situation in conflict zones (and other parts of the country concerned) as, despite being well-established, they are often lost sight of in practice. They have particular implications for the desirability of putting in place measures to governing conflicts and disturbances before such situations arise and thereby reduce the risk of ill-conceived responses to them. 2. Broad considerations of particular significance for conflict zones In addition to these principles just considered there are some additional broad considerations of particular significance for situations in conflict zones which should also be taken into account. Firstly, depending on the nature of the situation and the response proposed, there may be a need for a formal acknowledgement of an emergency which then justifies the taking of measures in derogation from the scope of the rights and freedoms that must normally be secured.19 This is specifically required for such action to be lawful under the Convention20 and, where geographically limited, it cannot be invoked elsewhere.21 However, although the Court has not 17 See Campbell and Cosans v United Kingdom, 7511/76; 7743/76, 25 February 1982, Hertel v Switzerland, 25181/94, 25 August 1998 and Heaney and McGuinness v Ireland, 34720/97, 21 December 2000. 18 A requirement of Article 15(2) of the Convention. 19 It is surprising that not all situations of conflict in which High Contracting Parties to the Convention have been involved have been ones in which a derogation has been considered necessary. Although it is possible that “normal” powers may be sufficient to deal with some conflicts, the findings of violations in cases such as Brogan v United Kingdom, 11209/84, 11234/84, 11266/84 and 11386/85, 29 November 1988 and in respect of the situation in Chechnya suggest that such an assumption can be overoptimistic. The failure to make a derogation also limits the scope for early collective scrutiny of the action being taken. The Court has yet to address the question of whether a derogation would be possible in respect of use of force outside the territory of a High Contracting Party but an affirmative answer seems appropriate both where the action is defensive (and thus necessarily dealing with a threat to the life of the nation) or is enforcement action under Chapter 7 of the United Nations Charter (with the threat to international peace and security justifying it being seen as much a threat to the individually states called upon to act as to the members of the United Nations collectively). As to the actual applicability of the Convention to conflict zones outside the territories of High Contracting Parties, see Part III. 20 Article 15(3). 21 Sakik and Others v Turkey, 23878/94, 23879/94 and 23880/94, 26 November 1997, Sadak v Turkey, 25142/94 and 27099/95, 8 April 2004, Yurttas v Turkey, 25143/94 and 27098/95, 27 May 2004, and Yaman v Turkey, 32446/96, 2 November 2004. 19 Jeremy McBride ruled that the requirement for an official proclamation in the comparable provision of the International Covenant of Civil and Political Rights22 has become a requirement of the Convention through the duty not to act inconsistently with other obligations under international law,23 the need to ensure that this is effectively achieved must be seen as something essential for fulfilling the legality principle. Secondly the duty just mentioned, together with the wider obligation not to use Convention provisions to limit or derogate from the other human rights obligations of the High Contracting Parties,24 means that any more exacting requirements of international humanitarian law standards can inform the specific application of Convention provisions in time of conflict and disturbance.25 Thirdly, although individual aspects of the remedial obligation under Article 1326 do not always need to be fulfilled through judicial procedures where security considerations are involved,27 the availability and accessibility of judicial supervision over the need for and specific use of exceptional measures must be maintained. This will be so even where the rights and freedoms affected are derogable as this is still the only guarantee that the measures taken under a derogation are strictly required by the exigencies of the situation and do not encroach upon non-derogable rights and freedoms.28 However, the provision of additional safeguards against abuse will be an important consideration in determining whether specific restrictions pursuant to a derogation are acceptable.29 In addition it needs to be borne in mind that remedial measures are an important substantive element of many rights and freedoms, particularly those that are non-derogable. Furthermore there will be a particular need in times of conflict and disturbance for measures to be taken to ensure that there is no breach of the obligation to allow recourse to the European Court30 and that, given the confusion likely to be engendered, there will be no obstacle to observing Article 4. Article 15(1); see Brannigan and McBride v United Kingdom, 14553/89 and14554/89, 26 May 1993. 24 Article 53. 25 On the whole the Convention is likely to embody more extensive guarantees for individuals in conflict zones. 26 Which is not discussed further below. 27 See Klass and Others v Germany, 5029/71, 6 September 1978 and Leander v Sweden, 9248/81, 26 March 1987. 28 Lawless v Ireland (No 3), 332/57, 1 July 1961, Brannigan and McBride v United Kingdom, 14553/89 and14554/89, 26 May 1993, Demir v Turkey, 21380/93, 21381/93 and 21383/93, 23 September 1998 and Elci and Others v Turkey, 23145/93 and 25091/94, 13 November 2003. 29 Ibid. 30 Under Article 34; see Assenov and Others v Bulgaria, 24760/94, 28 October 1998 and McShane v United Kingdom, 43290/98, 28 May 2002. 22 23 20 any interim measures that it might indicate31. Nevertheless there may be some scope for distinguishing between the fulfilment of the remedial requirements of the Convention at a time of conflict or disturbance and the period afterwards, such as regards investigation into particular behaviour, civil and criminal responsibility and the payment of compensation in respect of certain acts. B. Principles identifiable in the Convention and the Court’s case law32 1. Article 2 and Protocols No. 6 and No. 13 — Right to life and abolition of the death penalty There is undoubtedly an enhanced risk that life will be endangered or lost in conflict zones. However, although the guarantee in Article 2 is not absolute, its non-derogable character means that such a situation cannot be used as a justification for extending the circumstances in which a deprivation becomes acceptable, even if it might set limits on the possibility of this being prevented. Thus the duty to take appropriate steps to protect life which has been recognised by the Court as a positive aspect of the guarantee afforded by this provision33 must be taken fully into account in determining which military and law enforcement action should be taken. It must be accepted that there cannot be responsibility for loss of life where there was a justifiable lack of appreciation of the risk or where as much as possible was done with the resources available at the time but it will arise where there is a failure to take the action that was feasible to mitigate or remove the harm that was faced by others. Furthermore, while this may often be a matter of physical intervention, it also needs to be recognised that the timely provision of information about dangers that are imminent is an essential aspect of this obligation34 and this should not necessarily be outweighed by operational considerations that are understandably important from the perspective of the military and the police. This duty to warn and protect can extend can extend to military and law enforcement 31 See Mamatkulov and Abdurasulovic v Turkey, 46827/99 and 46951/99, 4 February 2005 [GC]. 32 For attempts to elaborate standards at the global level, see the Declaration of Minimum Humanatiarian Standards (“the Turku Declaration”) of 2 December 1990 and the attempt within the United Nations to draw up “Fundamental Standards of Humanity” (e.g. the United Nations Commission on Human Rights document, Fundamental standards of humanity, Report of the Secretary-General, E/CN.4/2006/87, 3 March 2006). 33 Osman v United Kingdom, 23452/94, 28 October 1998 [GC], Mahmut Kaya v Turkey, 22535/93, 28 March 2000, Pretty v United Kingdom, 2346/02, 29 April 2002 and Öneryildiz v Turkey, 48939/99, 30 November 2004 [GC]. 34 As in Öneryildiz v Turkey, 48939/99, 30 November 2004 [GC]. Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility action or defensive measures are capable of causing harm to civilians35. However, although Article 2 recognises the potential legitimacy of a use of force leading to loss of life where this is to defend someone, to effect an arrest or to quell a riot or insurrection, the requirement that this be ‘absolutely necessary’ is a very substantial constraint on the circumstances in which it can be undertaken. It is clear that this must control both the planning and the execution of an operation. In respect of the former there is a need to ensure that there is adequate evaluation of the intelligence on which action is to be based, as well as of the different options to be pursued (with full account being taken of the need to minimise risk to those who might be caught up in the operation), and that those carrying out the operation are suitably briefed about the situation and any weaknesses in the information being relied upon36. Furthermore it is of the utmost importance that those selected for the operation be as well trained and equipped as possible for it, with particular attention being paid to the danger of indiscriminate loss of life that might be posed through the use of particular weapons37. There should be no authorisation for a use of force in circumstances forbidden by international humanitarian standards — in particular the use of substantial force against areas occupied by civilians will only be exceptionally justified — or for the employment of weapons that are proscribed under international obligations applicable to the state concerned38. In the conduct of an operation itself the use of lethal force will only be justified where there is imminent risk of death or serious harm39. Furthermore the principle of necessity should often require that those against whom force can legitimately be used to be are tackled first with non-life threatening methods40 or are first given an opportunity to surrender41 but this could not be expected where this would itself endanger life42. However, it will be essential to train those authorised to use force regarding how to make a proper assessment as to whether its use in particuSee Pasa and Erkan Erol v Turkey, 51358/99, 12 December 2006. McCann and Others v United Kingdom, 18984/91, 27 September 1995 [GC]. 37 Andronicou and Constantinou v Cyprus, 25052/94, 9 October 1997. 38 See Isayeva v Russia, 57590/00, 24 February 2005 and Isayeva, Yusupova and Bazayeva v Russia, 57947/00, 57948/00 and 57949/00, 24 February 2005. 39 See Kakoulli v Turkey, 38595/97, 22 November 2005. 40 See Simsek v Turkey, 35072/97 and 37194/97, 26 July 2005. 41 Ogur v Turkey, 21594/93, 20 May 1999. 42 See Ahmet Ozkan v Turkey, 21689/9, 3, 6 April 2004, Perk v Turkey, 50739/99, 28 March 2006 and Yuksel Erdogan v Turkey, 57049/00, 15 February 2007. 35 36 lar circumstances is justified or whether non-lethal alternatives should first be employed, as well as to appreciate the need always to observe the principle of proportionality and to seek to minimise the loss of life wherever the use of force is justified43. A killing after someone has been neutralised will not be justified44. There will always be a need to be able to account for a death occurring during a military operation45. Thus, wherever deaths result from a use of force there will always be a responsibility to ensure that a thorough, effective and independent investigation into them is automatically carried out and appropriate arrangements to facilitate this in the difficult circumstances of conflict and disturbance out to be established in more normal times46. This will also be the case with a disappearance that follows a military operation47. The need for an element of public scrutiny of an investigation, as well as the involvement in it of relatives, that has been identified as important by the Court may be constrained by the security context but it ought not to be entirely eliminated and further review of what occurred might be needed once the conflict or disturbance is over. In any event it will be important that steps are taken to secure evidence and identify witnesses at the earliest opportunity. Furthermore, although the confusion which surrounds such situations (as well as security concerns) may excuse some non-compliance with the promptness normally expected of such investigations, neither a complete failure to act nor a lack of professionalism will be regarded as acceptable. Moreover it will be important that any explanations given for what occurred be subjected to the strictest scrutiny and the burden should lie on those using force to provide a satisfactory and convincing explanation for having done so48. This obligation is equally applicable both where a person dies once he or she has been taken into custody49 and where a person has been taken into official custody and his subsequent whereabouts 43 See Isayeva v Russia, 57590/00, 24 February 2005 and Isayeva, Yusupova and Bazayeva v Russia, 57947/00, 57948/00 and 57949/00, 24 February 2005. 44 Kakoulli v Turkey, 38595/97, 22 November 2005. 45 See Akkum v Turkey, 21894/93, 24 March 2005. 46 See McCann and Others v United Kingdom, 18984/91, 27 September 1995 [GC], Kaya v Turkey, 22729/93, 19 February 1998, McShane v United Kingdom, 43290/98, 28 May 2002, Finucane v United Kingdom, 29178/95, 1 July 2003, Isayeva v Russia, 57590/00, 24 February 2005 and Isayeva, Yusupova and Bazayeva v Russia, 57947/00, 57948/00 and 57949/00, 24 February 2005, Perk v Turkey, 50739/99, 28 March 2006, Bazorkina v Russia, 69481/01, 27 July 2006 and Estamirov v Russia, 60272/00, 12 October 2006. 47 See Ipek v Turkey, 25760/94, 17 February 2004. 48 McKerr v United Kingdom, 28883/95, 4 May 2001. 49 Jordan v United Kingdom, 24746/94, 4 May 2001. 21 Jeremy McBride are unknown50. In some situations a criminal prosecution of those considered responsible for unjustified use of force will not be immediately practical but a failure to bring one in more settled circumstances will not generally be justified where it is warranted by the evidence. It is possible that an amnesty may be justified by the need to defuse tensions51 but this should not affect the civil claims of relatives52. Extrajudicial executions can never be justified53 and the death penalty may not be used in times of conflict by states that are parties to Protocol No. 13. However, even in states where the death penalty may still be used in time of conflict54, the difficult nature of such a situation might preclude a person from receiving the fair trial required before such a sentence can be impose­d55 and this would be a violation of the right to life. Although the situation in conflict zones may pose particular problems of distribution, there is still a responsibility under Article 2 to ensure that persons in the custody of the authorities do receive medical care for illnesses or injuries that are life-threatening56. 2. Article 3 — Prohibition of torture The non-derogable character of this guarantee means that the standard of treatment which it requires should not be affected by the existence of conflict or disturbance, particularly given its reinforcement by the similar requirements of the Geneva Conventions and its Protocols. However, while this means that physical and mental ill-treatment already found to be objectionable57 cannot become acceptable by virtue of either the imperatives and stresses to which such situations inevitably give rise or of the alleged character of those involved in them58, particular attention will need to be given to ensuring that appropriate arrangements are in place to fulfil the obligation to carry out a thorough and effective investigation into allegations of such ill- treatment59 since the situations in question may be surrounded by confusion and also result in delays on account of the security concerns. Although the latter may excuse the lack of promptness normally expected of such investigations, neither a complete failure to act nor a lack of professionalism will be regarded as acceptable. In particular it will be important that steps are taken to secure evidence and identify witnesse­s. Moreover it will be important that any explanations given for injuries are subjected to the strictest scrutiny60. In some situations a criminal prosecution of those considered responsible for using proscribed forms of ill-treatment will not be immediately practical but a failure to bring one in more settled circumstances will not be justified61. Furthermore there should be no undue delay in providing adequate medical treatment for the injuries that may have been inflicted in breach of this guarantee62. The circumstances may affect the means available for transporting those taken prisoner but these must still not exceed the threshold at which treatment becomes prohibited63. Such circumstances may also affect the nature of the facilities available to keep persons whose detention is compatible with the Convention, but there will be a need to ensure that conditions which may be barely tolerable for a few days do not become the norm and thus result in the imposition of treatment that is degrading or inhuman64. Furthermore there will be a particular need to ensure that the facilities used take into account the difficulties faced by persons with serious incapacities, whether sustained in the course of the conflict or disturbance or beforehand65. Although the security context may justify very strict supervision of persons detained during conflict and disturbances, it is not permissible to use any form of sensory isolation and repeated use of search procedures is likely to be seen as degrading treatment66. See Mahmut Kaya v Turkey, 22535/93, 28 March 2000, Irfan Bilgin v Turkey, 25659/94, 17 July 2001 and Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 51 See Appl 16734/90, Dujardin and Others v France, 72 DR 236 (1991). 52 See Section A.1 on restrictions not entirely extinguishing rights and freedoms. 53 See Bazorkina v Russia, 69481/01, 27 July 2006. 54 Armenia, Azerbaijan, France, Italy, Latvia, Portugal and Spain have still to ratify Protocol No. 13 55 See Öcalan v Turkey, 46221/99, 12 May 2005 [GC]. 56 Keenan v United Kingdom, 27229/95, 3 April 2001 and Anguelova v Bulgaria, 38361/97, 13 June 2002. 57 See Ireland v United Kingdom, 5310/71, 18 January 1978, Aksoy v Turkey, 21987/93, 18 December 1996, Aydin v Turkey, 23178/94, 25 September 1997, [GC] Selmouni v France, 25803/94, 28 July 1999 [GC], Satik and Others v Turkey, 31866/96, 10 October 2000, Rehbock v Slovakia, 29462/95, 28 November 2000 and Poltoratskiy v Ukraine, 38812/97, 29 April 2003. 58 Chahal v United Kingdom, 22414/93, 15 November 1996 [GC]. See Aydin v Turkey, 23178/94, 25 September 1997 [GC], Selmouni v France, 25803/94, 28 July 1999 [GC], Labita v Italy, 26772/95, 6 April 2000 [GC] and Chitayev and Chitayev v Russia, 59334/00, 18 January 2007. 60 Tomasi v France, 12850/87, 27 August 1992 and Ribitsch v Austria, 18896/91, 4 December 1995. 61 See Egmez v Cyprus, 30873/96, 21 December 2000 and Al-Adsani v United Kingdom, 35763/97, 21 November 2001. 62 See Kudla v Poland, 30210/96, 26 October 2000, Keenan v United Kingdom, 27229/95, 3 April 2001 and McGlinchey v United Kingdom, 50390/99, 29 April 2003. 63 See Öcalan v Turkey, 46221/99, 12 May 2005 [GC] and Ahmet Ozkan v Turkey, 21689/93, 6 April 2004. 64 See Dougoz v Greece, 40907/98, 6 March 2000, Peers v Greece, 28524/95, 19 April 2001 and Kalashnikov v Russia, 47095/99, 15 July 2002, Poltoratskiy v Ukraine, 38812/97, 29 April 2003 and Ahmet Ozkan v Turkey, 21689/93, 6 April 2004. 65 Price v United Kingdom, 33394/96, 10 July 2001. 66 See Valasinas v Lithuania, 44558/98, 24 July 2001 and Van der Ven v Netherlands, 50901/99, 4 April 2003. 59 50 22 Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility A failure to show due regard for the concerns of relatives of those who have disappeared, particularly where the agents of the state concerned seem to be implicated, is likely to constitute prohibited treatmen­t67. Article 3 also requires the state to take action to protect the vulnerable from abusive treatment68 and, although the nature of the situation may define what can be expected of it at a given time, there will be no excuse for overlooking this responsibility. There is also an obligation not to remove someone from one country to another where he or she faces a serious risk of treatment contrary to Article 3 and, although this has been most significant in the context of deportation and extradition69, it could also be relevant to the displacement of persons in the course of hostilities. Furthermore it is important that measures taken in time of conflict or disturbance do not have the effect of so isolating it that there is a risk of it ceasing to exist since this has been recognised as a form of degrading treatment70. 3. Article 4 — Prohibition of slavery and forced labou­r The prohibition of forced labour, unlike that of slavery and servitude, is derogable but a situation of conflict or disturbance might in any event justify invocation of the fact that a service ‘exacted in case of an emergency or calamity threatening the life or wellbeing of the community’ is excepted from the definition of such labour. However, the formulation of this exception suggests that the need for this labour would only arise where a derogation under Article 15 is warranted but, even if that were not the case, there would undoubtedly have to be a clear legal basis for such exaction and any difference in the manner in which it this occurs should have a rational and objective justification; the former has not been a matter of concern for the Court but the latter has, albeit in the context of the invocation of the more usual exception regarding ‘normal civic obligations’71. However, it should be borne in mind that the Court has indicated that servitude — which is unacceptable in any situation - could ensue from a requirement to See Ipek v Turkey, 25760/94, 17 February 2004. See Z and Others v United Kingdom, 29392/95, 10 May 2001, D P and J C v United Kingdom, 38719/97, 10 October 2002 and E and Others v United Kingdom, 33218/96, 26 November 2002. 69 Soering v United Kingdom, 14038/88, 7 July 1989 and Ahmed v Austria, 25964/94, 17 December 1996. 70 Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 71 Karlheinz Schmidt v Germany, 13580/88, 8 July 1994. 67 68 perform a service that would otherwise be justified if this occurred in the context of a particularly serious denial of freedom72. It has also not rejected a submission that prolonged detention could constitute servitude73. There may not, therefore, be an objection to a requirement that ordinary members of the public perform tasks for the purpose of saving lives and maintaining essential services for the community, even though these might normally be performed by specialised services, but it would be unacceptable for a group to be singled out for this purpose by reference to considerations such as their ethnicity, language, nationality, race or religion. Moreover the manner in which the fulfilment of the requirement is secured should not automatically entail any additional deprivation of liberty. The Court has so far left open the question whether the reference in Article 4 to service exacted instead of compulsory military service in countries where conscientious objectors are recognised necessarily precludes a right to conscientious objection74. Nevertheless the need for any form of conscription to meet the challenge posed by an armed conflict should still ensure that the determination of claims for conscientious objection (where permitted) are fairly determined and that any penalties for refusal to serve (where it is not permitted) are not disproportionate75; even in the absence of Protocol No. 13 being applicable, it seems improbable that execution for such a refusal, whether in the battlefield or elsewhere, would be acceptable. 4. Article 5 — Right to liberty and security In the absence of a derogation under Article 15, difficult security conditions may be taken into account in the application of this provision76 but they cannot justify detention for a ground other than one specified in Article 5(1)77 or detention without adequate authorisation78. In such circumstances it is important to appreciate that restriction to a very limited area, as opposed to Siliadin v France, 73316/01, 26 July 2005. Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 74 See Thlimmenos v Greece, 34369/97, 6 April 2000 [GC] and Stefanov v Bulgaria, 32438/96, 3 May 2001. Cf the Commission’s view in Appl 10600/83, Johansen v Norway, 44 DR 155 (1985) that a combined reading of Articles 4(3)(b) and 9 means that a requirement to do some alternative to military service is not precluded for those with a conscientious objection. 75 See Thlimmenos v Greece, 34369/97, 6 April 2000 [GC]. 76 See Brogan and Others v United Kingdom, 11209/84, 11234/84, 11266/84 and 11386/85, 29 November 1988 and Murray v United Kingdom, 14310/88, 28 October 1994 [GC]. 77 Lawless v Ireland (No 3), 332/57, 1 July 1961. 78 Elci and Others v Turkey, 23145/93 and 25091/94, 13 November 2003. 72 73 23 Jeremy McBride confinement in a more traditional cell or prison building, could still constitute detention for the purposes of this provision if the only place to which the persons affected could otherwise go would put them at serious risk of ill-treatment or death and they are subject to strict and constant surveillance and have no access to legal or social assistance79. It will also be important to take effective action to prevent anyone from being illegally detained by persons other than the authorities and to ensure that there is no collusion in this regard by the latter with the former80. During a conflict or disturbance there may be a particular need to rely upon Article 5(1)(b) for powers to establish identity81 or to answer questions relevant to measures being taken to deal with conflict or disturbances82. However, it will be especially important to ensure that these powers are not exercised, or seen to be exercised, in an arbitrary manner as tense situations may lead to misunderstandings and unnecessary resort to force. A failure to keep records may in some circumstances support a finding of arbitrariness83. Such a conclusion is also likely to be drawn from an inability to provide an explanation for depriving someone of his or her liberty84. Where persons are arrested in connection with an offence, the reasonableness of the suspicion required for this purpose can take into account the circumstances of conflict and disturbance but, although that will permit reliance on anonymous informers, there is still a need for specificity regarding the person’s supposed involvement in the alleged offence85. Furthermore, while the reasons for the arrest need not be given immediately, the ‘promptly’ requirement will not be satisfied if more than a few hours elapse before this occurs86. In the absence of a derogation there can be no departure from normal time-lines for bringing the person concerned before a judge with authority to determine whether he or she should be released87. However, even where there is a derogation, it is unlikely that a delay of more than seven days before such production would be acceptable. See Amuur v France, 19776/92, 25 June 1996. 80 Riera Blume and Others v Spain, 37680/97, 14 October 1999. 81 Appl 16810/90, Reyntjens v Belgium, 73 DR 136 (1992). 82 Appls 8022/77, 8025/77 & 8027/77, McVeigh, O’Neill and Evans v United Kingdom, 25 DR 15 (1981). 83 Ahmet Ozkan v Turkey, 21689/93, 6 April 2004. 84 Chitayev and Chitayev v Russia, 59334/00, 18 January 2007. 85 Murray v United Kingdom, 14310/88, 28 October 1994 [GC] and O’Hara v United Kingdom, 37555/97, 16 October 2001. 86 Fox, Campbell and Hartley v United Kingdom, 12244/86, 12245/86 and 12383/86, 30 August 1990. 87 Brogan and Others v United Kingdom, 11209/84, 11234/84, 11266/84 and 11386/85, 29 November 1988. See also Ahmet Ozkan v Turkey, 21689/93, 6 April 2004. 79 24 In any event such a delay is dependent upon there being other guarantees against abuse, notably access to independent legal advice and medical treatment and a discrete right to challenge the legality of the detentio­n88. Any decision concerning the release of a suspected offender must continue to be based on an assessment of the risk of flight, interference with the administration of justice, commission of further offences and the adverse impact on public order and the circumstances, although possibly yielding more compelling evidence of one or more of these grounds, cannot justify an automatic refusal to end the detention89. Where detention is maintained there will be a need to ensure that thereafter there is also a periodic judicial assessment of its continued justification, with a power to order release where it is not. Moreover suitable efforts must be made to prevent such detention becoming excessive but the context will be a legitimate consideration in this regard90. The context, where accompanied by a derogation, could afford a justification for the use of preventive detention and this might be especially so where it is not practicable to prosecute individuals — whether because of the situation or the inability to disclose evidence of their involvement in offences — or other alternative measures — such as removal from the country — are not an option91. However, there would still need to be substantial evidence against the persons concerned and the existence of procedures designed to keep under frequent review both the need to use such a measure and the suitability of its application to each individual detained. The latter need not be judicial in character but should be marked by independence and objectivity. Every person subject to preventive detention must continue to enjoy a periodic right to bring judicial proceedings to challenge the legality of his or her detention, as indeed should anyone deprived of their liberty for whatever reason92. In addition it will be important to ensure that an adequate record — covering identi- 88 See Brannigan and McBride v United Kingdom, 14553/89 and14554/89, 26 May 1993, Aksoy v Turkey, 21987/93, 18 December 1996, Sakik and Others v Turkey, 23878/94, 23879/94; and 3880/94, 26 November 1997, Demir v Turkey, 21380/93, 21381/93 and 21383/93, 23 September 1998, Marshall v United Kingdom (dec.), 41571/98, 10 July 2001, Nuray Sen v Turkey, 41478/98, 17 June 2003 and Bilen v Turkey, 34482/97, 21 February 2006. 89 Caballero v United Kingdom, 32819/96, 8 February 2000. 90 See Kerr v United Kingdom (dec.), 40451/98, 7 December 1999, Ahmet Ozkan v Turkey, 21689/93, 6 April 2004 and Yurttas v Turkey, 25143/94 and 27098/95, 27 May 2004. 91 Lawless v Ireland (No 3), 332/57, 1 July 1961 and Ireland v United Kingdom, 5310/71, 18 January 1978. 92 See Sakik v Turkey, 23878/94, 23879/94; and 3880/94, 26 November 1997 and Bilen v Turkey, 34482/97, 21 February 2006. Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility ties, dates and locations - is kept for all persons who are detained, whatever the basis, so that it is always possible for the authorities to be able to account for their whereabouts93. Furthermore, notwithstanding the disruption that may be caused by conflict and disturbance, there must be a capacity to mount a thorough and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since that occurred94. Ultimately a person deprived of his or her liberty in violation of Article 5 should have the possibility of obtaining compensation, although it is conceivable that this could be deferred by the nature of the conflict95. 5. Article 6 — Right to a fair trial The ordinary system of criminal justice will probably be subjected to considerable strains during situations of conflict and disturbance, and especially in the conflict zone itself. However, there is no doubt that, given the importance of the safeguard role for courts in such situations that has already been discussed96, there is no scope for compromise in the need to provide a fair procedure. Thus, while there may be no objection to the use of special courts, their independence and impartiality must still be secured97 and this requirement will inevitably not be fulfilled where military courts are used to try civilians98. Nevertheless doubts about the illegality of the occupation of another country will not necessarily entail a conclusion that the courts which are allowed to operate there do not satisfy such a requirement99. It will be essential, notwithstanding the security context, that access to independent legal advice is available at a very early stage of detention, particularly if this is accompanied by interrogation which could lead to a prosecution and the person is otherwise kept incommunicado100. However, there would be no objection to the requirement of security clearance for the lawyers providing such advice and any subsequent representation but their independence is 93 Kurt v Turkey, 24276/94, 25 May 1998, Cyprus v Turkey, 25781/94, 10 May 2001 [GC], Ipek v Turkey, 25760/94, 17 February 2004 and Chitayev and Chitayev v Russia, 59334/00, 18 January 2007. 94 Ibid. 95 Chitayev and Chitayev v Russia, 59334/00, 18 January 2007. 96 See Section A.2. 97 Incal v Turkey, 22678/93, 9 June 1998 [GC] and Sadak and Others v Turkey, 29900/96, 29901/96, 29902/96 and 29903/96, 17 July 2001. 98 Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 99 Ibid. 100 See John Murray v United Kingdom, 18731/91, 8 February 1996 [GC], Magee v United Kingdom, 28135/95, 6 June 2000 and Brennan v United Kingdom, 39846/98, 16 October 2001. not compromised and this would rule out the use of lawyers from the armed forces101. The use of any penalty for refusal to provide information in circumstances which would inevitably entail admission of involvement in a criminal offence will be a breach of the prohibition on self-incrimination where that information is actually used in a prosecution for that offence102. Moreover, while inferences may be drawn from a lack of co-operation in respect of matters that clearly require an explanation of a defendant’s part in them103, it is essential that the terms in which this occurs gives full credit for his or her refusal to answer questions104. The security context may prevent essential witnesses for the defence attending and in such cases the continuation of the proceedings in their absence could lead to a conviction that will be regarded as unfair105. This context might also lead to a reluctance to disclose evidence or allow the identity of witnesses to be known by a defendant but, although both may be permitted where this does not affect the overall fairness of the proceedings, this is unlikely where such evidence or such witnesses are the essential basis for securing a person’s conviction106. It is unlikely that such reliance could be justified even in an emergency as the less draconian alternative of preventive detention would undoubtedly be available107. However, evidence obtained in breach of the right to respect for private life under Article 8 may still be used in a prosecution so long as this would not make the trial unfair. The latter is likely to be so where there are doubts about the voluntariness of any admission108 or there are reasons to doubt the authenticity of the evidence concerned109. Moreover it is unlikely that security considerations would justify a failure to hold a trial in public, particularly as measures can be taken to prevent the identity of witnesses becoming known to the public110. This would not preclude security checks on the public seeking to attend a hearing and there Chahal v United Kingdom, 22414/93, 15 November 1996 [GC]. Heaney and McGuinness v Ireland, 34720/97, 21 December 2000. 103 John Murray v United Kingdom, 18731/91, 8 February 1996 [GC]. 104 Condron v United Kingdom, 35718/97, 2 May 2000. 105 Cf the inability to examine witnesses leading to a violation of Article 6(1) in A M v Italy, 37019/97, 14 December 1999 and Luca v Italy, 33354/96, 27 February 2001. 106 See Doorson v Netherlands, 20524/92, 26 March 1996, Van Mechelen v Netherlands, 21363/93, 21364/93 and 21427/93, 23 April 1997, Rowe and Davis v United Kingdom, 28901/95, 16 February 2000 [GC], P G and J H v United Kingdom, 44787/98, 25 September 2001 and Hulki Günes v Turkey, 28490/95, 19 June 2003. 107 See the discussion of Article 5. 108 Allan v United Kingdom, 48539/99, 5 November 2002. 109 Khan v United Kingdom, 35394/97, 12 May 2000. 110 Doorson v Netherlands, 20524/92, 26 March 1996 and Van Mechelen v Netherlands, 21363/93, 23 April 1997. 101 102 25 Jeremy McBride would probably be no objection to the trial taking place in a secure environment such as a prison so long as public access to it was genuinely practicabl­e.111 The difficulty in bringing someone to trial because of conflict and disturbance would be a legitimate consideration in assessing the reasonableness of the length of any pre-trial detention but there would still be a need to demonstrate that continued efforts were being made to hold the proceedings. This would be equally true of any delays affecting the holding of civil proceedings112. However, in such proceedings the use of a military judge may not present the same threat to independence and impartiality as in criminal ones113. As has already been noted114, the adoption of an amnesty as a means of defusing tension in situations of conflict and disturbance may not be objectionable115 but the abolition of civil claims for this or other reasons (such as cost and the burden on the courts) will be seen as an unjustified denial of the right of access to court116. 6. Article 7 — No punishment without law Situations of conflict and disturbance are ones in which particular attention needs to be given to ensuring that the prohibition on the creation of retrospective offences is respected, not least because the accompanying sense of urgency may lead to a failure to give the same level of scrutiny as legislation in more normal circumstances to measures specially adopted with respect to them. Although the Court has recognised that absolute precision in the formulation of laws is not possible117, it still requires that the scope of the conduct being regulated be sufficiently precise to enable a person to determine how he or she should behave. It generally recognises that this foresight is something that can be obtained with the assistance of a lawyer but, as this cannot be assumed to be readily available in the situations under consideration, especial attention to achieving clarity without such assistance is likely to be required. It is equally important that the temptation to increase penalties retrospectively — whether through new measures or the expansive interpretation of exCf Riepan v Austria, 35115/97, 15 June 2000. Cf Agga v Greece (no. 1), 37439/97, 25 January 2000 which concerned a failure to take measures to deal with the effects of a strike by lawyers. 113 Yavuz v Turkey (dec.), 29870/96, 25 May 2000. 114 See the discussion of Article 2. 115 See Appl 16734/90, Dujardin and Others v France, 72 DR 236 (1991). 116 Stran Greek Refineries and Stratis Andreadis v Greece, 13427/87, 9 December 1994 and Al-Adsani v United Kingdom, 35763/97, 21 November 2001. 117 Cantoni v France, 17862/91, 15 November 1996. 111 112 26 isting ones118 — be resisted, notwithstanding the potential deterrent effect on future misconduct. However, the qualification to the prohibition in Article 7(2) prevents it from becoming an obstacle to the adoption of measures that give effect to obligations under international law to characterise and punish certain conduct as crimes119, of which those arising under international humanitarian law are of especial significance for times of conflict and disturbance. 7. Article 8 — Right to respect for private and family life The circumstances in a conflict zone will undoubtedly make the need for surveillance and interception of communications all the more pressing. Although this may allow for a framework for authorisation that is not dependent upon a prior judicial ruling, the need for such a framework to be governed by objective criteria and to be still subject to an alternative form of supervision designed to forestall abuse will remain essential120. However, this will not mean that the information thereby obtained can then be used or disclosed for unrelated purposes121. Moreover investigations into intimate aspects of a person’s life cannot automatically be justified by the invocation of security concerns; there will be a need for particularly weighty and convincing reasons established before this could be regarded as acceptable122. There is, however, no interference with private life entailed by a requirement to carry and show to the police or armed forces an identity card so long as this does not contain any private information123 and such a requirement is likely to be essential in the course of a conflict or disturbance. In such a context there are likely to be difficulties in resolving disputes with regard to the custody of children and there will be a need to ensure that every effort possible is taken to ensure that the interests of children and parents are not prejudiced either by pre118 As in Welch v United Kingdom, 17440/90, 9 February 1995 and Baskaya and Okçuoglu v Turkey, 23536/94 and 24408/94, 8 July 1999 [GC] respectively. 119 The basis for the ruling of two applications inadmissible in Kolk and Kislyiy v Estonia (dec.), 23052/04 and 24018/04, 17 January 2006. The point was raised but not relied upon in Streletz, Kessler and Krenz v Germany, 34044/96, 35532/97 and 44801/98, 23 March 2001 [GC]. See also K-H W v Germany, 37201/97, 22 March 2001 [GC]. 120 Klass and Others v Germany, 5029/71, 6 September 1978 and Leander v Sweden, 9248/81, 26 March 1987. 121 Peck v United Kingdom, 44647/98, 28 January 2003. 122 Lustig-Prean and Beckett v United Kingdom, 44647/98, 27 September 1999 and Smith and Grady v United Kingdom, 33985/96 and 33986/96, 27 September 1999. 123 Appl 16810/90, Reyntjens v Belgium, 73 DR 136 (1992). Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility cipitous action or undue delay124. Moreover, although dislocation and restrictions on movement during conflict and disturbance will inevitably have an adverse effect on the unity of families, there will be a responsibility both to remove barriers to reunification and to take appropriate measures to facilitate its occurrence125. Furthermore, while a cogent need for any use of force that entails the destruction of homes will have to be demonstrated126, the requisitioning of property in order to house the homeless could be justified127 and may even be required128. However, even though restrictions on a person’s access to his or her home may be a legitimate consequence of police and military operations129, their continued effect will need to be kept under review and they should be terminated as soon as they cease to be necessary130. 8. Article 9 — Freedom of thought, conscience and religion The Court has recognised on a number of occasions that the manifestation of religion can legitimately be restricted for reasons of public health, public safety and public order. Such considerations could undoubtedly be invoked where the wearing of religious symbols, even without any other provocative behaviour on the part of the person concerned, or the holding of a religious service in a particular location or at a particular moment might inflame a particularly tense situation. Nevertheless the well-founded of concern about such a risk would need to be demonstrated131. However, such restrictions, as well as the imposition of a curfew for other reasons unconnected with the manifestation of a particular religion132, ought not to be unnecessarily prolonged and should certainly not be applied in a way that makes compliance with religious observances entirely impossible133. This would be equally true of the effect of operational requirements on such observance by law enP, C and S v United Kingdom, 56547/00, 16 July 2002. Cyprus v Turkey, 25781/94, 10 May 2001, [GC]. 126 Yöyler v Turkey, 26973/95, 24 July 2003. 127 See the discussion of Protocol No. 1, Article 1. 128 See Noack and Others v Germany (dec.), 46346/99, 25 May 2000. 129 See Slivenko v Latvia, 48321/99, 9 October 2003 [GC] 130 Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 131 See Leyla Sahin v Turkey, 44774/98, 10 November 2005 [GC], Hasan and Chaush v Bulgaria, 30985/96, 26 October 2000 [GC], Serif v Greece, 38178/97, 14 December 1999 Metropolitan Church of Bessarabia and Others v Moldova, 45701/99, 13 December 2001 and Agga v Greece (no.2), 50776/99 and 52912/99, 17 October 2002. 132 See the discussion of Protocol No. 4, Article 2. 133 See Cha’are Shalom ve Tsedek v France, 27417/95, 27 June 2000 [GC] and Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 124 125 forcement officers and members of the armed forces.134 9. Article 10 — Freedom of expression In tense situations there may be concern about the discussion of sensitive topics but the Court will only accept that this can be prevented, in the absence of any direct incitement to violence or hostility between persons, where there is significant evidence of a serious threat to disorder135. Such incitement could, however, be a justifiable basis for penalising past statements and for preventing their subsequent circulation, especially where particularly virulent language, hate speech and the glorification of violence has been employed136. Nevertheless, there is a need to ensure that strongly-worded criticism is not confused with incitement137, action taken is clearly reasoned138, penalties imposed are not disproportionate or severe139 and restrictions on repetition are not overbroad or unduly continued140. During conflicts and disturbances media outlets and their employees are particularly likely to become the object of violence and harassment from those hostile to their reports and comments. In such circumstances the state has a responsibility to take adequate protective and investigative measures and cannot simply ignore what is happening141. Defence and security concerns could justify restrictions and prohibitions on the dissemination of information but only so long as these measures are genuinely effective142. Furthermore, while the need to prevent unjustified leaks of such information could be an exceptional basis for requiring a journalist to disclose the source from which it was obtained143, there would have to be an extremely urgent situation before a search of See Kalaç v Turkey, 20704/92, 1 July 1997. Piermont v France, 15773/89 and 15774/89, 27 April 1995 and Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 136 See Jersild v Denmark, 15890/89, 23 September 1994 [GC], Zana v Turkey, 18954/91, 25 November 1997 [GC], Surek v Turkey (Nos 1 and 3), 26682/95 and 24735/94, 8 July 1999 [GC] and Falakaoglu and Saygili v Turkey, 22147/02 and 24972/03, 23 January 2007. It might even include bars on interviews with the person concerned; Hogefeld v Germany (dec.), 35402/97, 20 January 2000. 137 Incal v Turkey, 22678/93, 9 June 1998 [GC] and Ibrahim Aksoy v Turkey, 28635/95, 30171/96 and 34535/97, 10 October 2000. 138 Cetin and Others v Turkey, 40153/98 and 40160/98, 13 February 2003 and Kommersant Moldovy v Moldova, 41827/02, 9 January 2007. 139 Ceylan v Turkey, 23556/94, 8 July 1999 [GC] and Polat v Turkey, 23500/94, 8 July 1999 [GC]. 140 Cyprus v Turkey, 25781/94, 10 May 2001 [GC] and Cetin and Others v Turkey, 40153/98 and 40160/98, 13 February 2003. 141 Özgur Gündem v Turkey, 23144/93, 16 March 2000. 142 Observer and Guardian v United Kingdom, 13585/88, 26 November 1991. 143 Goodwin v United Kingdom, 17488/90, 27 March 1996 [GC]. 134 135 27 Jeremy McBride his or her home or office could be regarded as warranted144. 10. Article 11 — Freedom of assembly and associatio­n Although the Court has recognised that unpopular demonstrators need to be protected against those determined to disrupt their peaceful assembly145, the context of conflict or disturbance may mean that this is either practically impossible or would entail an excessive burden for the authorities, particularly if it was at the expense of efforts to protect life or would seriously endanger the lives of law enforcement officers. The conclusion that there is a risk of either of these occurring should not, however, be too readily reached 146 and such a conclusion should be reasoned147. However, where such a conclusion is justifiably reached the unpopular demonstration could be required to take place in a less problematic location or, if this is not possible, might be brought to an end148 or prohibited from being started149. It would also be legitimate to prevent a demonstration from impeding the distribution of food and the performance of either essential services or of military and policing operations150. There can be no objection to the due imposition of criminal sanctions on those whose speech or conduct at an assembly deliberately and substantially contributed to serious disorder151. Furthermore, while regulation rather than prohibition may be the normal means of balancing freedom of assembly against the objectives set out in Article 11(2), a more general suspension of its exercise could be warranted where the risk of serious disorder flowing from any (rather a particular) assembly or gathering is well-founded152, as well as where the safety of those taking part would be endangered153. However, the evidence of such a risk should be cogent and the suspension ought to last no longer than this continues to be the case. Roemen and Schmit v Luxembourg, 51772/99, 25 February 2003. Plattform “Ärtze Für Das Leben” v Austria, 10126/82, 21 June 1980 and Ollinger v Austria, 76900/01, 29 June 2006. 146 As it was in Stankov and the United Macedonian Organisation “Ilinden” v Bulgaria, 29221/95 and 29225/95, 2 October 2001 and Guneri v Turkey, 42853/98, 43609/98 and 44291/98, 12 July 2005. 147 See Guneri v Turkey, 42853/98, 43609/98 and 44291/98, 12 July 2005. 148 As in Cissé v France, 51346/99, 9 April 2002. 149 Appl 8191/78, Rassemblement Jurassien and Unité Jurassienne v Switzerland, 17 DR 93 (1979). 150 Cf Gustafsson v Sweden, 15573/89, 25 April 1996 [GC]. 151 See Osmani and Others v The Former Yugoslav Republic of Macedonia (dec.), 50841/99, 11 October 2001. 152 Appl 8440/78, Christians against Racism and Fascism v United Kingdom, 21 DR 138 (1980). 153 As in Cissé v France, 51346/99, 9 April 2002. 144 145 28 The support by an association for recourse to violence — apart from the use of force consistent with the United Nations Charter — and other anti-democratic action would be a justifiable basis for its dissolution154 but, as this is a measure that requires a prior judicial ruling on the well-founded nature of the allegation155, a less final suspension of its activities could be regarded as acceptable during the course of a conflict or disturbance. However, this should not be used to lessen the evidential burden that should be met before taking such action156. Moreover, although activity which impedes the maintenance of essential services is outwith the protection of Article 11 at any time, the pursuit of such activity by a trade union would need to be extremely disruptive before its suspension could be regarded as justified. It is unlikely that the nature of a person’s post would normally be sufficient to preclude him or her from belonging to a trade union in time of conflict or disturbance157 but a bar on involvement in activities that conflict with his or her responsibilities could be justified158. The circumstances might also warrant some delay in reaching a conclusion as to the legitimacy of the objectives of an association for which registration is being sought but there is still unlikely to be any justification for an outright refusal that is not well-founded159 11. Article 12 — Right to marry The existence of conflict or disturbance may impede the operation of procedures governing divorce and re-marriage. This is in itself unlikely to engage a state’s responsibility under Article 12 but significant delays could have an adverse effect on the status of children born in the meantime and it would be appropriate for arrangements to be made to regularise such status after the cessation of the conflict or disturbance160. 154 Refah Partisi (Welfare Party) and Others v Turkey, 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003. [GC] 155 Action taken against an association can be preventative so actual implementation of anti-democratic objectives is not required; Refah Partisi (Welfare Party) and Others v Turkey, 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003 [GC]. 156 Reliance on supposition rather than fact led to violations of Article 11 in cases such as United Communist Party and Others v Turkey, 19392/92, 30 January 1998 [GC] and The Socialist Party and Others v Turkey, 21237/93, 25 May 1998 [GC]. 157 Cf Appl 11603/85, Council of Civil Service Unions and Others v United Kingdom, 50 DR 228 (1987). 158 See Rekvényi v Hungary, 25390/94, 20 May 1999 [GC] with regard to political activities. 159 Sidiropoulos and Others v Greece, 26695/95, 10 July 1998. 160 See the Court’s concern in F v Switzerland, 11329/85, 18 December 1987 about the effect of unreasonable restrictions on remarriage. Such action may also be needed to secure inheritance rights that could be protected under Article 8. Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility 12. Protocol No. 1, Article 1 — Protection of propert­y The temporary requisitioning of private property for the purpose of dealing with conflict or disturbance161 — which could result in a breach of contractual obligations owed to others - would undoubtedly be a control over its use in the general interest and the need for compensation might only arise if this was lengthy or resulted in damage162. Similarly case law dealing with legislative and administrative delays in the recovery of rented accommodation in order to avert a housing crisis could be used to support the use of property to meet temporary needs arising out of a conflict or disturbance, such as the provision of shelter for displaced persons through the occupation of empty properties or the billeting of such persons in occupied ones. However, there would be a need to demonstrate that genuine efforts were being made to provide alternatives as soon as practical and that this did not prejudice the needs of the families affected. Furthermore, where the provision of alternative housing is not practical once the immediate emergency had passed, there would undoubtedly be a need to ensure that the owners of the properties concerned were compensated for their losses so that they did not bear an undue burden and there should be arrangements in place so that the owners can have access to the properties to recover personal effects163. In dealing with conflict or disturbance there could well be circumstances in which access to particular areas would have to be controlled or prohibited, resulting in a denial of access to properties within them. This would not be objectionable in principle but the continuing need for any such exclusion would have to be demonstrated and, even if this were shown, limited access to collect personal effects ought to be allowed where feasible164. Some destruction of property is perhaps inevitable in the situations under consideration, being necessary for certain types of military and policing operations but also being (together with looting) something that either accompanies or characterises disturbances. As well as fulfilling international embargoes and other obligations; see Islamic Republic of Iran Shipping Line v Turkey (dec.), 40998/98, 10 April 2003. 162 See Stran Greek Refineries and Stratis Andreadis v Greece, 13427/87, 9 December 1994, para 72. 163 See Gillow v United Kingdom, 9063/80, 24 November 1986, Spadea and Scalabrino v Italy, 12868/87, 28 September 1995, Immobiliare Saffi v Italy, 22774/93, 28 July 1999 [GC] and Edoardo Palumbo v Italy, 15919/89, 30 November 2000. 164 See Loizidou v Turkey, 15318/89, 18 December 1996 [GC] and Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 161 The former would undoubtedly be justified so long as there was a genuine need for the action taken and compensation was subsequently paid165. However, in the case of the latter it is important that the authorities do not tolerate, encourage or even acquiesce in the damage, destruction and theft as otherwise they would have to accept responsibility for the losses ensuing166. Although the temporary seizure of property used, or suspected of being used, to assist the fomenting of disturbance or belonging to those on the opposing side of a conflict would be justified167, permanent deprivation would not justified in the absence of it being established in at a criminal trial that such property was linked to the commission of an offence168 unless it was something the possession of which was specifically prohibited169. 13. Protocol No. 1, Article 2 — Right to education Although the Court has accepted that delay in the provision of schooling could raise an issue of compliance with the requirements of Article 2, it has also found that this could be justified by the personal situation of the child affected170. Such a view was reached in the context of a personal trauma but a similar excuse for delays in provision might also be recognised where this is the consequence of the disruption that inevitably ensues where there is conflict or disturbance. This is likely to be especially true of situations where attendance at school could put children at risk of harm so that priority has to be accorded to fulfilling the positive obligation arising under Article 2 of the Convention171. However, in the absence of immediate risk, any indulgence regarding delay in provision would most probably be short-lived and alternative arrangements would need to be made as soon as possible172. Moreover where there has been an extensive period of 165 The former was not established in cases such as Akdivar and Others v Turkey, 21893/93, 16 September 1996 [GC], Selçuk and Asker v Turkey, 23184/94 and 23185/94, 24 April 1998, Bilgin v Turkey, 23819/94, 16 November 2000, Yöyler v Turkey, 26973/95, 24 July 2003 and Isayeva, Yusupova and Bazayeva v Russia, 57947/00, 57948/00 and 57949/00, 24 February 2005. 166 See Raimondo v Italy, 12954/87, 22 February 1994 and Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 167 As in Raimondo v Italy. 168 Phillips v United Kingdom, 41087/98, 5 July 2001. 169 As in AGOSI v United Kingdom, 9118/80, 24 October 1986. 170 Scozzari and Giunta v Italy, 39221/98 and 41963/98, 13 July 2000 [GC]. 171 See above. 172 See the finding of a violation of Protocol No. 1, Article 2 in Cyprus v Turkey, 25781/94, 10 May 2001 [GC]where there was no effort to provide secondary education in keeping with the linguistic tradition of the enclaved Greek Cypriots in northern Cyprus when control over education was assumed by the ‘TRNC’ authorities. 29 Jeremy McBride disruption, the duty to provide schooling would probably entail appropriate efforts to make up for the education that was missed. Although a state may wish to dissipate tension between different groups through educational programmes — and the making of such efforts are an element of the obligations with regard to education under Article 13 of the International Covenant on Economic, Social and Cultural Rights and Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination — it will be essential to ensure that this does not actually seek to indoctrinate children contrary to the religious and philosophical convictions of their parents173. 14. Protocol No. 1, Article 3 — Right to free election­s A background of disputes between particular groups - distinguished by characteristics such as their ethnic or national origin, language or religion — has been recognised by the Court as justifying the adoption of a representative structure for the legislature in which at least some elements of its membership are chosen from and by members of those groups174. This might, therefore, be seen as an appropriate means of seeking to defuse tensions that have led to conflict or disturbances. However, active involvement in anti-democratic activity has been accepted as a basis for barring particular members of the legislature from continuing to hold such office or engaging in other political activity175. Such a measure could thus be adopted with regard to any members of the legislature, as well as those seeking election to it, who have incited persons to violence or have given support for the use of armed force against their country in circumstances where this would be contrary to the requirements of the United Nations Charter. However, not only should the imposition of such a bar be based only upon the actual conduct of those affected176 but it should be for a limited duration177. 173 See Kjeldsen, Busk Madsen and Pedersen v Denmark, 5095/71, 5920/72 and 5926/72, 7 December 1976 and Efstratiou v Greece, 24095/94, 18 December 1996. 174 Mathieu-Mohin and Clerfayt v Belgium, 9267/81, 2 March 1987. 175 Refah Partisi (Welfare Party) and Others v Turkey, 41340/98, 41342/98, 41343/98 and 41344/98,13 February 2003 [GC]; having dealt with the case under Article 11, the Court did not consider it necessary to rule on the complaint regarding Protocol No. 1, Article 3. 176 See the finding of a violation of Protocol No. 1, Article 3 in Selim Sadak and Others v Turkey, 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, 11 June 2002 where the dissolution of a party was not based on the conduct of those who thereby lost their parliamentary mandate. 177 No objection was taken to a period of five years in the Refah Partisi case but the precise term must be related to the extent of the impugned conduct. 30 Such a sanction should ought to have definitive effect only where the conduct on which it is based has been established pursuant to a judicial procedure but it is unlikely that a suspension from the legislature until this takes place would be objectionable, especially if the conflict or disturbance actually impedes the holding of a hearing. A conflict or disturbance could afford a justification for delaying an election, particularly where the circumstances would prevent the opinion of the electorate being freely expressed. 15. Protocol No. 4, Article 1 — Prohibition of imprisonment for debt There is no relevant case law concerning this provision but there seems to be no reason why the circumstances of conflict or disturbance should affect compliance with the right which it guarantees. 16. Protocol No. 4, Article 2 — Freedom of movemen­t The scope for interference with freedom of movement and choice of residence envisaged in Article 2(3) would undoubtedly embrace situations of armed conflict and internal disturbances. Case law has so far been concerned with restrictions applied to particular individuals as regards the ability to leave their residence178, to register a change of residence179, to enter particular areas180 and to travel abroad181. Such restrictions were considered to be justified were there was a well-founded apprehension as to future conduct or a demonstrable need for the person to remain in the country. However, they were found to violate Article 2 where they had no legal basis and were continued longer than necessary. They also ought to be reasoned182. Moreover it was crucial to their acceptability that their scope was not disproportionate, especially as regards the impact that they had on the ability of the persons concerned to live and work.183 Undoubtedly more generalised restrictions such as curfews and prohibitions on entering certain zones or travelling abroad could be justified by genuine concerns about the conflict and disturbance being exacerbated and the well-being of those affected. Never178 Raimondo v Italy, 12954/87, 22 February 1994, Denizci and Others v Cyprus, 25316-25321/94 and 27207/95, 23 May 2001, Bottaro v Italy, 56298/00, 17 July 2003 and Luordo v Italy, 32190/96, 17 July 2003. 179 Bolat v Russia, 14139/03, 5 October 2006. 180 Landvreugd v Netherlands, 37331/97, 4 June 2002, Olivieira v Netherlands, 33129/96, 4 June 2002 and Guneri v Turkey, 42853/98, 43609/98 and 44291/98, 12 July 2005. 181 Baumann v France, 33592/96, 22 May 2001. 182 Guneri v Turkey, 42853/98, 43609/98 and 44291/98, 12 July 2005. 183 The ability to collect social security and mail was particularly significant in Landvreugd. Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility theless there would have to be evidence of the need for specific restrictions and these should not prevent access to the essentials of life or unduly impede family reunification. Close monitoring of the impact of such restrictions would thus be essential. 17. Protocol No. 4, Article 3 — Prohibition of expulsion of nationals The absence of a specific limitation clause on the prohibition of expulsion or entry of nationals is unlikely to be an obstacle to the conclusion that this guarantee, even without invoking its derogable character, is not absolute. However, while it is difficult to envisage circumstances in which expulsion could be justified by reference to conflict or disturbances (especially because it could be attended by the risk of violating Articles 2 and 3 of the Convention), the considerations referred to in the preceding paragraph might, subject to similar conditions, be invoked to support a delay on admission. 18. Protocol No. 4, Article 4 and Protocol No. 7, Articl­e 1 — Prohibition of collective expulsion of aliens and Procedural safeguards relating to expulsion of aliens The conclusion that collective expulsion has occurred can only be avoided where it is evident that decisions have been based on a reasonable and objective examination of the particular circumstances of each case. In emphasising the importance of this, the Court has been prepared to draw an adverse inference from the political context, the use of formulaic reasoning and the absence of independent legal advice184. Hostility to aliens may result from a conflict or be the reason for disturbances but it is unlikely that this would ever be sufficient to justify the taking of such a collective measure against them since concerns regarding public order and national security could be satisfied by other, less draconian measures, including restrictions on movement within the country. Although concerns about public order and national security can be invoked to defer the operation of the procedural guarantee in Protocol No. 7, Article 1 until after expulsion, there is no basis for concluding that this could affect the need for individual circumstances still to be considered when taking the initial decision, even though this may be in the context of conflict or disturbance. There must, in any event, be a legal basis for the expulsion185. 184 185 Conka v Belgium, 51564/99, 5 February 2002. Bolat v Russia, 14139/03, 5 October 2006. 19. Protocol No. 7, Article 2 — Right of appeal in criminal matters The nature of some offences committed during conflict and disturbances may mean that persons accused of them are tried at first instance by the highest tribunal. In such cases there is no obligation to provide an appeal but otherwise there seems to be no reason why the circumstances should affect compliance with the right which this provision guarantees. Indeed reliance on it would be particularly important if they have led to persons being tried in absentia186. 20. Protocol No. 7, Articles 3, 4 and 5 — Compensation for wrongful conviction, Right not to be tried or punished twice and Equality between spouses There is no relevant case law concerning these provisions but there seems to be no reason why the circumstances of conflict or disturbance should affect compliance with the right which they guarantee. C. Conclusion Although the case law of the Court that is directly concerned with the enjoyment of human rights in times of conflict and disturbance is not numerically large, it is more than sufficient to demonstrate the essential standards and practices to be followed in such difficult circumstances. The following points derived from it will be of particular significance in devising the approach to be pursued when dealing with such situations: a. the need for human rights to be both the objective of any action taken and the basis on which it is carried out; b. the need for there to be a clear legal basis for action taken and for this to be established as much as possible before any situation of conflict or disturbance arises; c. the need for any action taken to respect the principles of non-arbitrariness, non-discrimination and proportionality; d. the need to observe the non-derogability of certain rights and freedoms and to ensure not only that the conditions for any derogation in respect of others is admissible — with no right or freedom being completely extinguished - but is also adequately publicised; e. the need for appropriate training of all who may have responsibilities affecting human rights in time of conflict and disturbance; See Krombach v France, 29731/96, 13 February 2001 and Papon v France, 54210/00, 25 July 2002. 186 31 Jeremy McBride f. the need to ensure that judicial supervision of any action by an independent and impartial court is always available and that other appropriate remedies to reduce the risk of abuse are established, with particular attention being given to effecting thorough and effective investigations of possible violations of non-derogable rights and securing the accountability of those responsible; g. the need to take appropriate action to avoid loss of life both as regards any use of force and the risk to those not taking part in any conflict or disturbance; h. the need to ensure that the prohibition on torture and inhuman and degrading treatment is respected both in the course of action dealing with conflict or disturbance and in any detention facilities used; i. the need to ensure that the duty to protect the vulnerable against abuse is not overlooked; j. the need to ensure that compulsion to assist in dealing with the consequences of conflict or disturbance doers not amount to servitude; k. the need to ensure that the limited grounds for detention are respected, that preventive detention in an emergency is well-founded and not unduly prolonged, that adequate records are kept of all who are detained and that all such persons have access to independent legal advice; l. the need to ensure the fairness of all judicial proceedings and to take efforts both to avoid delay and to eliminate the prejudicial consequences of any that cannot be avoided; m. the need to have an objective basis for any surveillance and interception of communications and to ensure that information obtained is not used or disclosed for unrelated purposes; n. the need to ensure that housing is not unnecessarily destroyed and that appropriate action is taken to re-house those who may be affected where this is necessary; o. the need to ensure that religious observances can be carried out with the minimum of disruption; p. the need to ensure that strongly-worded criticism is not confused with incitement; q. the need to protect unpopular demonstrators wherever practicable and to ensure that action taken against an association is well-founded; r. the need to ensure that appropriate compensation is paid for the use, damage and destruction of property and that any property which is oc32 cupied in the public interest is restored to its owner as soon as possible; s. the need to ensure that any disruption of education and the holding of elections is minimised; and t. the need to ensure that undue restrictions on freedom of movement are not imposed and to prevent the collective expulsion of aliens by design or effect. III. RESPONSIBILITY IN CONFLICT ZONES A. Introduction Given the continued relevance of Convention provisions to the sorts of situation prevailing in conflict zones, the issue of responsibility for possible noncompliance with them inevitably arises. The determination of where that responsibility lies is not entirely straightforward because of the different possible locations of the conflict zones, as well as the different actors that might be involved in events there. Thus, when considering the need to fulfil the requirements of the Convention, there is the possibility of being concerned with conduct in two different sets of territories, namely, those that form part of one or more of its High Contracting Parties and those that do not form part of any High Contracting Party. Furthermore the conduct giving rise to concern about compliance with the requirements of the Convention could in the case of the former comprise (a) the acts and omissions of non-state actors; (b) the acts and omissions of the High Contracting Party on whose territory they are occurring (“the territorial High Contracting Party”); (c) the acts and omissions of another High Contracting Party (the non-territorial High Contracting Party”); (d) the acts and omissions of a state that is not a High Contracting Party; (e) the acts and omissions of an international organisation acting through a High Contracting Party; (f) the acts and omissions of an international organisation acting through a state that is not a High Contracting Party187. In the case of conflict zones on the territory of a state that is not a High Contracting Party, the conduct giving rise to concern about compliance with the requirements of the Convention could comprise all the acts and omissions previously listed except, for obvious reasons, those of a territorial High Contracting Party. In seeking to clarify the actual scope of responsibility under the Convention in conflict zones, the basic Categories (c)-(f) specify only one state in each instance but in many conflicts they could involve several. 187 Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility principles governing responsibility that have been identified by the Court are first reviewed. Then consideration is given to their application to the different situations just outlined, whether as dealt with in the existing case law of the Court - although it has not been entirely consistent in its approach - or as they can be expected to deal with in the case of those that it has not yet had occasion to address. No responsibility can arise under the Convention for a state that is not a High Contracting Party188, whether acting on its own behalf or of that of an international organisation. The position of such a state is only examined below insofar as its acts or omissions have any bearing on the responsibility of High Contracting Parties. B. Basic principles of responsibility In all cases the fundamental question to be answered will be whether the conduct in question - regardless of whether it is extra- or intra-territorial - is not only attributable to a High Contracting Party but should also be can be regarded as coming within the jurisdiction of that High Contracting Party for the purpose of Article 1 of the Convention since that is the only basis on which responsibility for such a High Contracting Party can arise. A negative answer would not, of course, preclude the possibility of responsibility arising under some other international obligation189. Location is especially important in determining responsibility under the Convention as the starting assumption in its application has been that the jurisdiction of a High Contracting Party for the purpose of Article 1 - the basis of the obligation to secure Convention rights and freedoms - exists primarily or essentially in respect of matters occurring within its territory190 Notwithstanding the emphasis placed by the Court on the regional character of the Convention, jurisdiction can sometimes also be established as existing in respect of matters occurring outside a High Contracting Party’s territory - and indeed outside Europe - but this has not been readily accepted in all circumstances, notwithstanding an evident link between an interference with Convention rights and freedoms and the conduct of a High Contracting Party. Thus jurisdiction will be assumed to be exercised on account of certain non-territorial factors, such as: Appl 262/57, x v Czechoslovakia, I Yb 170 (1955-1957). Such as the International Covenant on Civil and Political Rights. 190 Banković and Others v Belgium and Others (dec.), 52207/99, 12 December 2001 [GC]. Gentilhomme and Others v. France, 48205/99;48207/99;48209/99, 14 May 2002 188 189 acts of public authority performed abroad by diplomatic and consular representatives of the state; the criminal activities of individuals overseas against the interests of the state or its nationals; acts performed on board vessels flying the state flag or on aircraft or spacecraft registered there; and particularly serious international crimes (universal jurisdiction). Moreover it has been recognised that, in addition to the state territory proper, territorial jurisdiction will extends to any area which, at the time of the alleged violation, is under the “overall control” of the High Contracting Party concerned, notably occupied territories191, to the exclusion of areas outside such control192. Furthermore it has been accepted that effective control over individuals outside a High Contracting Party’s territory may also be sufficient to establish jurisdiction for the purposes of the Convention193. Where a High Contracting Party acts on behalf of an international organisation, its conduct may thereby be attributable to that organisation and thus, as a matter of principle, will cease to be a matter of responsibility under the Convention. However, the location and context of that conduct may be relevant to the conclusion that the High Contracting Party has still retained some responsibility under the Convention194. C. Application of the principles of responsibility in conflict zones It is perhaps most convenient to consider the issue of responsibility by reference to the different potential actors involved, although there will inevitably be some overlap in the analysis of their respective positions because in at least some conflict zones they will not operate in isolation from one another. 1. Non-state actors Non-state actors - whether individuals, rebels, insurgents, belligerents or armed opposition groups — cannot themselves be responsible under the Convention system as responsibility is restricted to High Contracting Parties, although their conduct could give rise to other forms of international responsibility195. However, it would be possible for their conduct to Loizidou v. Turkey (preliminary objections), 15318/89, 23 March 1995 [GC] 192 Banković and Others v Belgium and Others (dec.), 52207/99, 12 December 2001 [GC]. 193 Öcalan v. Turkey, 46221/99, 12 May 2005 [GC]. 194 See C4 below. 195 Whether under international humanitarian law or international criminal law. 191 33 Jeremy McBride be attributed to a High Contracting Party and to have occurred within its jurisdiction where it took place within its territory and the High Contracting Party can be regarded as having effectively authorised this or acquiesced in its occurrence in those situations where the High Contracting Party was in a position to prevent it from happening196. This, as will be seen below, is unlikely where the conduct occurs in a part of the territory - whether some or all of the conflict zone — over which the High Contracting Party does not exercise control. It remains to be seen whether there would be found to be an exercise of jurisdiction for Convention purposes if it could be established that a High Contracting Party - without any physical presence on its part - was directing or supporting the activities of rebels, insurgents, belligerents or armed opposition groups197 in the territory of another High Contracting Party which interfered with the enjoyment of Convention rights and freedoms there198. Such a finding would certainly seem appropriate where this concerned such activities on the territory of another High Contracting Party, notwithstanding the lack of a physical presence of the directing or supporting High Contracting Party, as this would otherwise result in the vacuum of rights protection that the Court rightly abhors. The Court has indicated its support for a finding of jurisdiction in such a case not only by including within jurisdiction the acts of a foreign state supporting the installation of a separatist state within the territory of the state concerned - albeit in a case where the High Contracting Party concerned had troops on the territory of another High Contracting Party in which separatists were in control - but also by being prepared to treat as acquiescence or connivance in the acts of private parties the recognition by the state in question of the acts of self-proclaimed authorities which are not recognised by the international community199. The regional focus that has been taken with regard to jurisdiction might, however, make the Court more reluctant to find that responsibility under the Convention is engaged where a High Contracting Party is providing direction or support for activities on the territory of a state that is not itself a High Contracting Party200. See A v United Kingdom, 25599/94, 23 September 1998, Paul and Audrey Edwards v United Kingdom, 46477/99, 14 March 2002 and Öneryildiz v Turkey, 48939/99, 30 November 2004 [GC]. 197 Hereafter referred to collectively as “armed opposition groups”. 198 This was not established with respect to the United States in the Case Concerning Certain Military and Paramilitary Activities in and against Nicaragua, judgment of the International Court of Justice, 27 June 1986. 199 Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC]. 200 This would not, of course, preclude the possibility of responsibility arising under a global human rights instrument or international law generally. 196 34 2. The Territorial High Contracting Party In principle a High Contracting Party will be exercising its jurisdiction whenever it takes any measures, or indeed fails to act where the Convention requires it to do so, in any part of its territory and this would include its response to any form of armed uprising by persons within or any invasion or other incursion from without. Of course, in judging its responsibility the Court would need to take account of the limitations that can be imposed on rights and freedoms, including those that might rely on a derogation under Article 15. However, where the conflict leads to the territorial High Contracting Party losing control over part of its territory to a local authority sustained by rebel forces or by another state, it is not thereby absolved of responsibility under the Convention. In such circumstances the High Contracting Party concerned will retain its positive obligations towards persons within its territory201. It must, therefore, endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign states and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention. Such measures must actually be appropriate and sufficient in the instant case. They will include measures needed to re-establish its control over territory in question, as an expression of its jurisdiction, and measures to ensure respect for the rights and freedoms of individuals in that territory. The obligation to re-establish control would require the High Contracting Party to refrain from supporting the separatist regime and to act by taking all the political, judicial and other measures at its disposal - negotiations with occupying power and use of international organisations - to re-establish its control over that territory. However, in a given case the options may be limited where the separatist regime is in a stronger military position and due account can be taken of reprisals for particular measures. Nonetheless the illegality of what has occurred should be recognised and rehearsed through the institution of relevant criminal proceedings. At the same time diplomatic efforts should be undertaken and this could include talks with the separatists. Moreover cooperation in practical matters such as air traffic control, telephone links and sport will not necessarily be viewed as acquiescence in separation but, in a given context could be a manifestation of a desire to re-establish control. 201 Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC]. Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility In the case of individuals whose rights and freedoms have been affected, appropriate measures might be the quashing or nullification of adverse rulings and court judgments in the separatist territory, the institution of criminal proceedings against those interfering with the rights and freedoms concerned, the provision of medical assistance and financial support for family members, as well as efforts to maintain For those who are deprived of liberty, negotiations to secure their release, whether directly with the separatists or through intermediaries might be needed. In all instances clear evidence of real diligence in taking the measures will be required. It is likely that the territorial High Contracting Party would have a responsibility to ensure that judgments reached in violation of Article 6 were not enforced, whether during the conflict or subsequently, as otherwise a violation of this provision would become attributable to it. This is a more exacting requirement than in respect of third states202 but that can be distinguished from the flagrant denial of justice test applicable to them because this concerns a matter occurring in the legal space to which the Convention applies. However, a violation of Article 6 should not be regarded as occurring simply because the courts rendering the judgments concerned are deemed illegal; such courts should still be regarded as established by law if they nonetheless satisfy the requirements of independence and impartiality203. Further consideration needs to be given to the way in which appropriate measures are defined since it did not appear to have been practical for Moldova to secure the release of persons in Transdniestria despite the conclusion of the Court that its failure in this regard was a violation of the Convention 204 and this ultimately occurred without its involvement. Insofar as the loss of control by a territorial High Contracting Party over part of its territory is to a state that is also a High Contracting Party, there should be no significant effect on the total protection to be enjoyed under the Convention as the latter state will become primarily responsible for the implementation of its rights and freedoms205. However, if the state achieving effective control of the territory concerned is not a High Contracting Party, the protection afforded by the Convention will be substantially reduced as a result of the fact that it cannot be held responsible under the Convention and of the limited nature of the Drozd and Janousek v. France and Spain, 12747/87, 26 June 1992. See Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 204 Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC]. 205 See further the following sub-section. 202 203 responsibility still continuing for the territorial High Contracting Party. It might also be thought strange to limit the responsibility of the territorial High Contracting Party to the fulfilment of positive obligations in circumstances where there is only a separatist regime and no intervention by another High Contracting Party - notwithstanding the treatment of these as comparable situations - since this would result in a situation where there was no High Contracting Party with responsibility for securing the Convention rights and freedoms in full but this seems to be the implication of the case law just considered206. However, such a situation has been distinguished by the Court from one where there is only a failure by local authorities to observe directions from the central government - albeit without any substantial resort to force - the fact that an interference with Convention rights and freedoms is imputable to those authorities will not alter the full responsibility under the Convention of the High Contracting Party itself207. In the Court’s view mere difficulties encountered by a High Contracting Party in securing compliance with the rights guaranteed by the Convention in all parts of its territory should not be regarded as affording an excuse since the higher authorities of the state are under a duty to require their subordinates to comply with the Convention and cannot therefore shelter behind their inability to ensure that it is respected208. It was undoubtedly significant in finding the High Contracting Party for the unlawful detention of the applicant concerned that the local authorities concerned were public law institutions performing functions assigned to them by the constitution and the law and so could not be described as a non-governmental organisation or group of individuals with a common interest, for the purpose making an application under Article 34 of the Convention. This attaches some importance to the way in which the High Contracting Party chooses to characterise an entity seizing control over part of its territory but the dividing line between a constitutional crisis and out and out conflict may not always be clear cut. It was also significant for 206 It was also not considered in Assanidze v Georgia, 71503/01, 8 April 2004 [GC]. 207 Assanidze v Georgia, 71503/01, 8 April 2004 [GC]. 208 The appropriateness of this conclusion in the instant case might be seen as supported by the prompt release of the applicant after the judgment was handed down: see Resolution ResDH(2006)53 concerning the judgment of the European Court of Human Rights of 8 April 20042004 — Grand Chamber in the case of Assanidze against Georgia (Adopted by the Committee of Ministers on 2 November 2006, at the 976th meeting of the Ministers’ Deputies). 35 Jeremy McBride the Court that the local authorities concerned had no separatist aspirations. An attempt to preclude any responsibility arising under the Convention where the loss of control exists at the time of ratification would not be possible as territorial exclusions are precluded except for the circumstances provided for in Article 56(1) as regards non-metropolitan territories209. It remains to be seen whether the loss of control by a High Contracting Party could be such as to lead to the territory in question being acquired by the High Contracting Party in occupation. In principle it seems improbable as the acquisition of territory through illegal acts ought not to be possible. 3. The Non-territorial High Contracting Party Where, as a consequence of military action whether lawful or unlawful - a state exercises effective control over the territory of another High Contracting Party, that state will be regarded as having jurisdiction for the purpose of Article 1 and thus be obliged to secure in that area the rights and freedoms set out in the Convention 210. It does not matter that the fact of control is the result of the direct action of its armed forces or is through a subordinate local administration. There will be no need to establish that the non-territorial High Contracting Party exercising effective control actually exercises detailed control over the policies and actions of the administration acting as the day-to day authority of the territory in question211. Responsibility will thus arise not only for the conduct of its own forces but that of the local administration that survives because of support from the military and the state more generally212. This has led to findings of violations of Protocol No. 1, Article 1 where owners have been denied access to their property in occupied territory as a result of the actions of a subordinate local administration213 and where a person has been refused a permit to leave the occupied territory to participate in various bicommunal meetings in another part of the territorial See Matthews v United Kingdom, 24833/94, 18 February 1999 [GC], Assanidze v Georgia, 71503/01, 8 April 2004 [GC] and Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC]. 210 Loizidou v Turkey, 15318/89, 18 December 1996 [GC] 211 Loizidou v Turkey, 15318/89, 18 December 1996 [GC], Cyprus v Turkey, 25781/94, 10 May 2001 [GC], Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC] and Issa and Others v Turkey, 31821/96, 16 November 2004. 212 Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 213 Loizidou v Turkey, 15318/89, 18 December 1996 [GC], Cyprus v Turkey, 25781/94,, 10 May 2001 [GC] and Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, 16163/90, 31 July 2003 209 36 HCP contrary to the right to freedom of assembly214. Furthermore in the one inter-state case where effective control was found to be exercised by the respondent High Contracting Party, the latter was held to have violated an extensive range of Convention Rights and Freedoms215. In the Court’s view the responsibility of the nonterritorial High Contracting Party exercising effective control extends to both negative and positive obligations so as to prevent “a regrettable vacuum in the system of human-rights protection”216 but there must be some limits on the extent of positive obligations in view of the conclusion of the Court that such obligations under the Convention may still be continuing for the territorial High Contracting Party217. The existence of effective control is a matter of fact in each case. It could relate to a very limited area but would probably require a substantial contingent of troops218 covering the entire area and present there for more than a short period219. The existence of constant patrols and check points on all main lines of communication are also likely to be significant considerations favouring a finding that effective control exists. However, as part of the emphasis placed by the Court on the essentially territorial nature of jurisdiction, effective control will not be regarded as existing merely because the effects said to interfere with Convention rights and freedoms were the direct consequence of an act by a High Contracting Party; there must always be some actual presence by that High Contracting Party on the territory of the state affected220. This probably does not mean that there could be no responsibility under the Convention for conduct such as the firing of a missile on to the territory of another state as the Court has been willing to acknowledge that responsibility can arise for the effects of acts by a High Contracting Party’s officials that are non-territorial, albeit in the context of judicial rather than military acts221, but the basis of reDjavit An v. Turkey, 20652/92, 20 February 2003 Cyprus v Turkey, 25781/94, 10 May 2001 [GC]; in which the Court found Turkey to be responsible for violations of Articles 2, 4, 5, 8, 9, 10 and 13, in addition to the violation of Article 1 of Protocol No. 1. 216 Cyprus v Turkey, 25781/94, 10 May 2001 [GC], at para 78 217 As in Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC]. 218 See Issa and Others v Turkey, 31821/96, 16 November 2004.in which the Court emphasised armed forces of more than 30,000 in northern Cyprus in the Loizidou v.Turkey and Cyprus v. Turkey cases 219 This was the basis for distinguishing the previous two cases from the situation in Issa and Others v Turkey, 31821/96, 16 November 2004. 220 Banković and Others v Belgium and Others (dec.), 52207/99, 12 December 2001 [GC]. 221 See Drozd and Janousek v. France and Spain, 12747/87, 26 June 1992. The view expressed in this case was endorsed by the Court in Drozd and Janousek v. France and Spain, 12747/87, 26 June 1992. 214 215 Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility sponsibility in such instance is one of consequence rather than contro­l. Furthermore the nature of effective control for the purpose of responsibility under the Convention would not seem to embrace limited control of a state’s airspace, as occurred in the bombing of the Former Yugoslavia which gave rise to the Banković case222. Nevertheless it is perhaps significant that the control over airspace in that instance was never more than “limited” and amore substantial blockade, whether by air or by sea, might be sufficient to establish a situation of effective control. Although all the cases in which effective control has been found to exist were ones where such control was being exercised over the territory of another High Contracting Party, a Chamber of the Court has indicated that it does not exclude the possibility that, as a consequence of military action, a High Contracting Party could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of a state that is not a High Contracting Party. This would mean that, if there was a sufficient factual basis for holding that, at the relevant time, alleged victims of violations of Convention rights were within that specific area, it would follow logically that they were within the jurisdiction of the High Contracting Party and not of the other state, notwithstanding that the latter would clearly not fall within the legal space (espace juridique) of the Contracting States223. It remains to be seen whether the finding of effective control in such a situation would involve a more exacting view of what constitutes such control on account of the principal reason for admitting this exception to the territorial basis for jurisdiction being the wish to avoid any “vacuum in the system of human rights protection”224 or whether the Grand Chamber’s essentially regional focus will lead it to reject the possibility of there being any responsibility under Convention outside the territory of High Contracting Parties whatever the degree of control being exercised225. The responsibility of a non-territorial High Contracting Party exercising effective control over the territory of a High Contracting Party would also be 222 Banković and Others v Belgium and Others (dec.), 52207/99, 12 December 2001 [GC]. 223 Issa and Others v Turkey, 31821/96, 16 November 2004. However, the evidence of such control was not found to have been established. 224 Something emphasised in Cyprus v Turkey, 25781/94, 10 May 2001 [GC] and reaffirmed in Banković and Others v Belgium and Others (dec.), 52207/99, 12 December 2001 [GC]. 225 For this reason a majority in the House of Lords in Al-Skeini v Secretary of State for Defence [2007] UKHL 26 saw Banković rather than Issa as the approach of the Court to be preferred. engaged where its authorities acquiesced or connived in the acts of private individuals which violate the Convention rights of other individuals living in the occupied territory and thus within its jurisdiction226. Conversely, where there are remedies in the occupied territory that could be used against private parties interfering with Convention, these would first need to be exhausted before redress can be sought under the Convention system227. In the absence of effective control, the provision of judges or other officials for the authorities of a territory would not entail an exercise of jurisdiction ratione personae as the judges or administrators when taking action (or failing to act) in a manner contrary to Convention rights and freedoms would not be acting as judges or administrators of the non-territorial High Contracting Party228. In some circumstances, however, such support could be viewed as a form of acquiescence or connivance in the violation of Convention rights and freedoms by non-State actors. The loss of effective control will not affect the responsibility of the territorial High Contracting Party where this loss is attributable to it. An attempt to suggest the contrary was made, albeit not in a conflict situation, in the United Kingdom’s defence to an alleged violation of the right to take part in the choice of the legislature when Gibraltar was not included in the definition of the United Kingdom for the purpose of elections to the European Parliament, notwithstanding the application of Community law to it. This omission interfered with the right of the applicant - a resident of Gibraltar - to free elections under Article 3 of Protocol No. 1. The Court placed emphasis on the choice made by the United Kingdom in bringing about this situation; its responsibility derived from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act. Further, the Court notes that on acceding to the EC Treaty, the United Kingdom chose, by virtue of Article 227(4) of the Treaty, to have substantial areas of EC legislation applied to Gibraltar229. As a consequence the United Kingdom was considered to be responsible under Article 1 of the Convention for securing the rights This was not found to have been established in Cyprus v Turkey, 25781/94, 10 May 2001 [GC] 227 The Court did not consider the local authorities to be totally passive with regard to acts of private parties that were the subject of complaints in Cyprus v Turkey, 25781/94, 10 May 2001 [GC]. 228 Drozd and Janousek v. France and Spain, 12747/87, 26 June 1992.. 229 Matthews v United Kingdom, 24833/94, 18 February 1999. 226 37 Jeremy McBride guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or Europe This conclusion could have implications for the responsibility of a territorial High Contracting Party that agrees to allow another state to take over on its behalf operations against an armed opposition group or to take control of a particular area as part of a peacekeeping operation. If the state were a High Contracting Party, case law might lead to the conclusion that it rather than the territorial High Contracting Party should have responsibility under the Convention but if the state were not a High Contracting Party concern to avoid a vacuum in the protection of Convention rights and freedoms might result in responsibility being laid at the door of the territorial High Contracting Party. The involvement of a non-territorial High Contracting Party through help to separatists to set up a separatist regime and participation of its military personnel in the fighting for this purpose should also be sufficient to establish jurisdiction, without the need to show that the non-territorial High Contracting Party has effective control, at least where the territorial High Contracting Party has lost control of the territory concerned230. Furthermore after a ceasefire the continued provision of military, political and economic support to the separatist regime, thus enabling it to survive by strengthening itself and by acquiring a certain amount of autonomy will also be sufficient to establish jurisdiction. In addition collaboration by the authorities of the non-territorial High Contracting Party with an illegal regime, such as handing over persons to it, will be capable of engaging its responsibility for the acts of that regime. Moreover it would seem that a non-territorial High Contracting Party can still have some responsibility under the Convention for its activities on the territory of another High Contracting Party even though it has less than effective control over a part of that territory. Certainly the former European Commission of Human Rights was willing to treat a state as responsible for covert operations carried out abroad (but in another High Contracting Party) by its authorised agents231. This can be seen as an instance of actual authority so the duty is only to respect the rights of individuals to the extent that it exercises authority over such persons. This would seem to be the implication of the rulings in Assanidze v Georgia, 71503/01, 8 April 2004 and Ilascu and Others v Moldova and Russia, 48787/99, 8 July 2004 [GC]. 231 Stocké v. Germany, 11755/85, 19 March 1991, opinion of the Commission, p. 24, § 167 230 38 However, subsequent case law has established that responsibility for the acts of a High Contracting Party’s agents can arise under the Convention even where these take place in a state that is not a High Contracting Party and so the imperative to avoid a vacuum is not applicable. Such responsibility was thus found to be possible both in the case of an arrest of terrorist suspect232 and in a military operation in which a number of persons were allegedly arrested and killed233. The crucial consideration for the Court was that the persons affected were themselves actually or allegedly under the effective control of the agents of a High Contracting Party234. Accountability in such situations is considered to stem from the fact that Article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory235, although this reasoning might be thought equally applicable to the approach to effective control over territory which nonetheless has been seen to be a matter of dispute. Although extraterritorial acts of a High Contracting Party may not in themselves engage its responsibility under the Convention, the determination of any civil action brought by those affected within its own courts must still comply with the rights protected by Article 6. However, the absence of a substantive right of action under domestic law in respect of the extra-territorial acts will not be regarded as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm and thus entailing a denial of the right of access Öcalan v. Turkey, 46221/99, 12 March 2003 and 12 May 2005 [GC]. Issa and Others v Turkey, 31821/96, 16 November 2004. Such control was not established in this case. See the reliance in this case on Appl 17392/90, M. v Denmark,73 DR 193 (1992); Appl 28780/95, Illich Sanchez Ramirez v France, 86 DR 155 (1996); Coard et al. v the United States, the Inter-American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively. 234 Thus in the Chamber ruling in Öcalan v Turkey (12 March 2003) the Court stated that The Court considers that “the circumstances of the present case are distinguishable from those in the aforementioned Banković and Others case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey and in the Grand Chamber ruling it stated: “It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that state for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII)”. 235 para 72. 232 233 Applying the European Convention on Human Rights in Conflict Zones: Relevance and Responsibility to court236. Furthermore it would be impermissible under the Convention for a High Contracting Party to allow the use by its courts or authorities of evidence obtained in circumstances contrary to the prohibition on torture and inhuman and degrading treatment, notwithstanding that such torture or ill-treatment occurred outside its jurisdiction for Convention purposes237. 4. International Organisations Where an interference with Convention rights and freedoms is carried out by a High Contracting Party pursuant to its commitments as a member of an international organisation, the location of the interference and the nature of this obligation are the considerations that will determine whether any responsibility under the Convention can arise. Thus, where the action or inaction does not occur on the territory of any High Contracting Party and the High Contracting Party immediately implicated in the interference is acting pursuant to a Security Council resolution adopted under Chapter 7 of the United Nations Charter in order to deal with a threat to international peace and security, the Court has taken the view that the impugned action or inaction should be attributed to the United Nations and thus it has no competence ratione personae238. It remains to be clarified as to the extent to which the issues of location and obligation are equally significant. There is no doubt that the nature of the United Nations — an “organisation of universal jurisdiction fulfilling its collective secure objectives”239 — was of particular importance in the only instance that the Court has so far been concerned with obligations directly imposed by that body. This character was also reinforced in the Court’s view by the fact that acceptance of the Charter by High Contracting Parties generally preceded ratification of the Convention and that under Article 103 of the Charter precedence was to be attached to United Nations obligations over those arising from any other international agreement240. It may well be that a regional organisation — at least not one acting pursuant to the United Nations Charter — might not be accorded the same respect, particularly if it came into being after the Convention’s entry into force. Markovic and Others v Italy, 1398/03, 14 December 2006 [GC]. A v Secretary of State for the Home Department, [2005] UKHL 71, 8 December 2005. 238 Behrami and Behrami v France (dec.), 71412/01, 2 May 2007 [GC] 239 Ibid, para 51. 240 Ibid, para 147. This was also considered crucial in the similar ruling of the English Court of Appeal in R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327. 236 237 However, it was also significant that the action was being carried out in the territory of a state that was not at the time a High Contracting Party. This allowed the Court to distinguish the situation in this case from its more general reluctance to eliminate all responsibility under the Convention for acts in fulfilment of international obligations where these take place on the territory of a High Contracting Party. Certainly in a situation where an obligation was being implanted on a High Contracting Party’s territory the Court had previously found that there would still be responsibility for interferences with Convention rights and freedoms where the organisation imposing the obligation did not provide comparable protection to that afforded by the Convention, which was a matter to be determined by the Court.241. Moreover, although it reached this conclusion where the impugned action involved the implementation by a High Contracting Party of an international obligation on its own territory, the concern already noted about creating a vacuum in the application of the Convention means that it is improbable that the fulfilment of such an obligation on the territory of another High Contracting Party would be viewed any differently. The Court has left open the question of whether the issue of location is of equal or lesser significance than the nature of the obligation when it comes to excluding responsibility under the Convention. However, given the emphasis attached by the Court in its ruling to the precedence of obligations under the United Nations Charter over all others, it ought not to be important that that the implementation of such obligations in a manner that interferes with Convention rights and freedoms is occurring on the territory of a High Contracting Party. Such a conclusion is nonetheless a matter for concern as the Charter system conspicuously lacks effective arrangements to protect human rights where the United Nations requires its members to takes any action. D. Conclusion The existence of a conflict zone on the territory of a High Contracting Party will not thereby lead to it losing all responsibility for implementation there of the Convention. However, there are circumstances where its loss of control in such a zone will result in a substantial diminution of that responsibility. Where the loss of control is to another High Contracting Party, there should be no vacuum in the protection that the ConBosphorus Hava Yollan Turizm ve Ticaret Anonim Şirketi v Ireland, 45036/98, 30 June 2005 [GC]. 241 39 Jeremy McBride vention is supposed to afford as the responsibility for implementation will be shared by the two states but that protection will be very limited where the loss of control is to a state that is not a High Contracting Party or, possibly, where the loss of control is to a separatist regime acting without the assistance of another state. Furthermore the protection of the Convention seems likely to be displaced entirely in the case of action taken pursuant to obligations arising from membership of the United Nations, albeit that there is still some uncertainty as to what the consequence of such action being taken by a High Contracting Party on its own territory or that of another High Contracting Party. Where the conflict zone is not on the territory of a High Contracting Party the protection afforded by the Convention is likely to be more limited still but its application cannot be entirely discounted. IV. CONCLUSION It is clear that Convention rights and freedoms remain entirely relevant to situations in conflict zones, notwithstanding that the Court has so far had only limited occasion to consider its specific application in such situations. However, the possibility that a failure to implement Convention rights and freedoms in the appropriate, if limited, manner required in situations in conflict zones will necessarily engage the responsibility of one or more High Contracting Parties is by no means certain. Such responsibility is most likely to arise where the conflict zone is on the territory of a High Contracting Party and its existence is least probable, but by no means impossible, where the conflict zone is elsewhere. However, even where the conflict zone is on the territory of a High Contracting Party, the enforcement of responsibility may well be complicated by its division between High Contracting Parties and, possibly, by the insistence of the Court on a High Contracting Party having positive obligations which it will be in no position to fulfil. Perhaps an even greater concern about the application of the Convention in conflict zones is the possibility that measures to secure international peace and security pursuant to a resolution of the United Nations Security Council may entirely displace the requirement to observe the rights and freedoms in it, notwithstanding that respect for those rights and freedoms ought to be both the ultimate goal of securing such peace and security and an indispensable requirement for its true achievement. 40 Dragoljub Popović PROTECTION OF BUSINESS PREMISES UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS Dragoljub Popović Judge at the European Court of Human Rights Strasbourg 1. Wording and Structure of Provision Article 8 of the European Convention on Human Rights (hereinafter ECHR) provides for protection of home in its English text, whereas the French version of the text, being equally official, uses the word domicile to express the same meaning and notion. This is worth noting at the very beginning of this essay because of the fact that it was the French text of the ECHR, rather than the English one, which enabled the emergence of the protection of business premises in the European Law of Human Rights. Article 8(1) ECHR reads in the English version: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The French version reads: “Toute personne a droit au respect de sa vie privée et familiale, de son domicile et de sa correspondance.” The structure of Article 8 basically corresponds with those of the following three articles of the ECHR. What they have in common is to be found in the same line of proceeding and reasoning when applying the provisions. The main issue in that respect is whether there had been an interference with a right guaranteed by the ECHR. If so, the questions to follow are whether such interference was based on law, and had a legitimate aim, and finally whether it was necessary in a democratic society, or in other words, whether the interference was proportional to the aim pursued (Leach, 281-4). In practice however, it is mostly the last one of the issues, which has been mentioned here, that the European Court of Human Rights (hereinafter Court) uses as a prerequisite for its verdicts. The proportionality is by far preponderant if compared to the other two. The earliest case in which the Court had to deal with the problem of interfering with business premises was an English one, in which the Court gave judgment in 1989. In the judgment the Court drew a line between its own competence and the one of a member-state, being a Contracting Party to the ECHR, i.e. the Court ruled on the margin of appreciation left to the member-states in respect of Article 8 ECHR. 2. Margin of Appreciation The case of 1989 that has just been mentioned, and stands the first in the line of relevant precedents, was the Chappell case.1It concerned a procedural remedy, developed in England in the seventies of the last century under the name of Anton Piller order. The remedy was called after the name of a 1976 case in which the Court of Appeal approved its use for the first time. An Anton Piller order is an interlocutory measure of a provisional nature, which is granted in civil proceedings pending the trial of the action on the merits. Its purpose is to preserve for the trial on merits the evidence in possession of the defendant or prospective defendant. Its essence is surprise, for it applies without notice to the defendant and without him being heard. It usually applies at the very outset of the proceedings. Before issuing an Anton Piller order an English court of law must be satisfied that a.) the plaintiff has made out an extremely strong prima facie case that his claim will succeed on the merits, b.) the actual or potential damage is very serious for the plaintiff, and c.) there is clear evidence that the defendant has in his possession incriminating documents or things, and that there is a real possibility that, if he is warned in advance he may destroy such material. An Anton Piller order is issued to a private party in civil proceedings, and it must be distinguished from a search warrant that police obtains in criminal proceedings, for the former confers no right of forcible 1 Chappell v. The United Kingdom (app. No. 10461-83), judgment of 30. March 1989 41 Dragoljub Popović entry onto premises. A refusal to comply with the order will expose the defendant to the risk of proceedings for contempt of court on the motion of the plaintiff. However it is common practice to arrange for a policeman to be present outside the premises when an Anton Piller order is being executed, with a view to forestalling any breach of the peace. The story of the Chappell case begins at the end of February 1981, when an Anton Piller order was granted. It was executed at the beginning of March of the same year. Mr. Chappell was running a video club and the plaintiffs, who managed to obtain an Anton Piller order against him, had alleged that Mr. Chappell had in possession video cassettes of three films to which the plaintiffs owned the copyright. The plaintiffs had also informed the police on the fact that Mr. Chappell allegedly possessed some pornographic video films. For that reason the police obtained a warrant to search Mr. Chappell’s premises. The peculiarity of the Chappell case was that the Anton Piller order and the police search warrant were executed simultaneously. The English courts of law ruled in subsequent proceedings that “there was nothing inherently wrong with the mode of execution of the Anton Piller order”, except that it’s executing at the same time with the search warrant “made it more oppressive than it should have been”. The Court of Appeal maintained such a conclusion of the first instance court, and rejected Mr. Chappell’s appeal, refusing at the same time leave to appeal to the House of Lords. In October 1982 Mr. Chappell lodged an application with the Court in Strasbourg, complaining of an alleged violation of Article 8 ECHR. For the purpose of our analysis it should be pointed out that Mr. Chappell was running his business in his own premises, which also served partly as his place of residence (Heringa and Zwaak, in Van Dijk e.a.723). Before the Court it was clear that there had been an interference with the applicant’s rights protected by Article8 ECHR, but the Court arrived, together with the courts of law at national level, to the conclusion that the interference with applicant’s rights was in conformity with English law (Kastanas, 46). The Court also found that the order in question pursued a legitimate aim, as well as that enough safeguards were provided at the domestic level for the applicant in respect of execution of the order. As the applicant had complained of simultaneous executions of the order and the police search warrant, the Court found in the paragraph 66 of the judgment that “the applicant made no request for one of the searches to 42 be deferred until the other had been completed”. Another Court’s finding was that “Mr. Chappell was able to look after his interests whilst the order was being implemented”. The Court’s ruling on the case therefore was that there had been no violation of Article 8 ECHR. The Court found grounds for such a ruling mostly in the field of proportionality (Kastanas, 63). The Chappell case shows the effort of the Court to leave a certain margin of appreciation to a memberstate. The Court underlined in paragraph 54 of the judgment that its “power to review compliance with domestic law is limited”. Domestic judgments were maintained, no violation was found in the case, and finally the main position of the Court towards the question of protecting business premises was that the Court should not intervene (Jacobs & White, 254). Unless there was no protection at all against searches at the national level, the margin of appreciation left to member-states posed an obstacle to the Court. That was especially the case if the Court found that a national legal system provided enough safeguards against arbitrariness. It was only a couple of years later that the Court’s attitude altered. There have been meanwhile some moves in comparative law, which were made in divergent directions. 3. Divergent Approaches in Comparative Law Among approaches to the problem discussed here, existing in the times in which the Court rendered judgment in the Chappell case, two should be mentioned in particular. One was made at the international, and the other at a national level. The latter was characteristic for the country in which originated the case that was to represent the milestone in the evolution of the Court’s case law on the subject. It was only six months after the Court gave judgment in the Chappell case that another European institution faced the problem of protection of business premises. In the case Hoechst v. Commission the Court of Justice of the European Communities (CJEC) refused to give such protection on the grounds that a fundamental right was the one of inviolability of the home. As regards business premises the CJEC found considerable divergences between the legal systems of the member-states of the European Community of the time, considering both the nature and degree of protection. Besides, the CJEC found that there had been no case law of the European Court of Human Protection of Business Premises Under the European Convention on Human Rights Rights on the subject.2 The CJEC ruled that the protection of Article 8 ECHR in respect of home could not be extended to business premises (Sudre, 407). The CJEC found no grounds for review of an act of an institution of the European Community (for grounds of review see Shaw, 499, 522-3). The above mentioned approach was maintained by the CJEC in other judgments of the same year.3 Quite opposite was the approach of German courts of law. They extensively interpreted constitutional guarantees of Article 13 of the Basic Law of Germany. Namely, the inviolability of home was considered to extend to business premises as well. That was also the position of the Federal Constitutional Court.4 At the same time German legislation took identical stand. The Code of Criminal Procedure provided that home, as well as other premises belonging to a person not suspected of criminal offence, could be searched only on certain grounds specified by the law. The idea was the same as the one of the Federal Constitutional Court. Business premises were susceptible of enjoying protection.5 The approaches of international instances thus differed from the one of the internal law of Germany when the case of Niemietz v. Germany came to the agenda of the European Court of Human Rights towards the end of 1992.6 4. Posing the Rule The Niemietz case was based on an application of a practicing lawyer from Freiburg im Breisgau in Germany. The applicant, who also was a city councilor, was at the same time an activist of an anti-clerical group. The political party on the list of which he had been elected to the City Council used his address and the post box number for the purposes of the party and its mail. An unknown person had posted a letter addressed to a judge, containing insult, from the applicant’s address. The insult was connected to a case the judge had to try, having to do with matters relating to church taxes the anti-clerical groups were campaigning against. The fact rose suspicions that either the applicant or a client of his might be at the origin of the insult. The public prosecutor therefore obtained a warrant from Hoechst v. Commission [1989] ECR 2859, 2924 Dow Benelux v. Commission [1989] ECR 3137, 3157 and DowChemical Iberica and others v. Commission [1989] ECR 3165,3185 4 judgment of 13 October 1971, Entscheidungssammlung des Bundesverfassungsgerichts, vol. 32, 54 5 Article 103 Code of Criminal Procedure of the Federal Republic of Germany 6 Niemietz v. Germany, app. No. 13710/88, judgment of 16 December 1992 2 3 a court of law to search the applicant’s law office. The search was executed in the presence of two office assistants. The applicant had exhausted domestic legal remedies to challenge the search warrant before he lodged an application with the Court in Strasbourg. The Court’s main finding in this case was that there had been an interference with applicant’s rights under Article 8 ECHR. The Court also noted that in certain Contracting States the word “home” appearing in the English text of Article 8 ECHR had been “accepted as extending to business premises” (paragraph 30 of the judgment). Another remark made by the Court in the same paragraph of the judgment was that “such an interpretation was fully consonant with the French text, since the word ‘domicile’ has a broader connotation than the word ‘home’ and may extend to a professional person’s office”. The Court found that the interference with applicant’s rights under the ECHR was in accordance with the law, and found no reason to question its legitimate aim, because the applicant did not contest it. However, the Court’s ruling was that the interference was not proportionate to the aim pursued and that it was not necessary in a democratic society, because the search of a lawyer’s office was not accompanied by any special procedural safeguards (paragraph 37). The Court consequently found a violation of Article 8 ECHR. The judgment in Niemietz represented a milestone, and changed the course of evolution of the Court’s case law. It was for the first time that the Court granted protection to business premises of a physical person (Heringa and Zwaak in Van Dijk, 723; Jacobs & White, 255; Renucci, 164). Business premises were granted protection against arbitrary searches ever since, and this approach became a rule. 5. Further Developments The rule posed in the Niemietz case, providing for protection of business premises, has been followed by the Court ever since (5.1). However, there were judgments in which the Court extended its field of implementation (5.2). 5.1. Following the Rule The rule in Niemietz was followed in Crémieux v. France.7 The applicant in the case was the chairman and managing director of a wholesale wine firm, with a head office in Marseilles. In course of investigations performed between 1976 and 1980 the French cus7 Crémieux v. France, ( app. No. 11471/85), judgment of 25 February 1993 43 Dragoljub Popović toms officers carried out eighty-three investigative operations, including searches of the head office of the applicant’s firm, as well as of his house. Criminal proceedings against the applicant ended with a fine he was charged to pay. His firm was also fined. The applicant complained at domestic level of a violation of Article 8 ECHR as early as before the investigating judge. In subsequent proceedings the Court of Appeal on one hand did not give a ruling on the issue. The Court of Cassation on the other hand ruled that there had been no violation of the provision. The applicant then lodged an application with the Court in Strasbourg. The Court found that there had been an interference with the applicant’s rights under Articleicle 8 ECHR. It pursued a legitimate aim based in the law, but the Court concluded that the interference “could not be regarded as ‘necessary in a democratic society’” (paragraph 36 of the judgment). The Court reiterated its original approach to the subject, as expressed in the Chappell case, which was rooted in the idea of leaving the Contracting States a certain margin of appreciation in assessing the need for interference. However, the Court stressed in the judgment that such a margin went “hand in hand with European supervision” (paragraph 38). Stressing the idea of a European supervision, along with granting a margin of appreciation to a Contracting State was a new feature in the Court’s approach to the problem of searches and the control of their arbitrariness, in spite of the fact that the Court’s basic attitude towards the problem was maintained. The Court’s main reasoning was that the legislation and practice of searches “must afford adequate and effective safeguards against abuse” (paragraph 39). It should be pointed out that this approach was constant in the Court’s case law. The “safeguard test” applied as early as in the Chappell case, and it was followed in Niemietz. The existence of safeguards against abuse has always been essential for the Court’s assessment (see Jacobs & White, 255, mentioning some other cases in which the rule in Niemietz was followed for the same reason). The Court found a violation of Article 8 ECHR, thus confirming its own previous reasoning and approach in respect of protection against arbitrary searches. However, it should be noted that in all cases we have commented so far the applicant was a physical person. Another challenge for the Court was the question of possible extension of protection of business premises to legal persons or companies. 44 5.2. Extending the Rule The question of extending the rule in Niemietz granting protection to physical persons’ premises to those of companies was raised in a French case of the year 2002. It was the case of Société Colas Est.8 The Government of France instructed the National Investigation Office to carry out a large-scale administrative investigation into the conduct of public works contractors. In November 1985 the inspectors carried out simultaneous raids on fifty-six companies without authorization from the companies’ management and seized several thousands of documents. The applicant companies’ premises were among those affected by the raid. Before French courts of law the applicant companies contested the lawfulness of the searches and seizures carried out by inspectors without any judicial authorization, under an ordinance of 1945. They also relied on Article 8 ECHR. The Paris Court of Appeal found no breach of the latter. The applicant companies were fined and their appeal to the Court of Cassation was rejected. They turned to the Court in Strasbourg, complaining of alleged violation of Article 8 ECHR. The Government of France contested applicability of the rule in Niemietz to this case. They stated that “although the Court had made clear that professional or business addresses were protected by Article 8, all the cases in which it had made that finding had concerned premises where a natural person had carried an occupation” (Government’s view, as reproduced in paragraph 30 of the judgment). The Government did not dispute the fact that legal entities could enjoy similar rights to those afforded to natural persons, but still insisted on the point that the former “could not claim a right to the protection of their professional or business premises with such force as an individual could in relation to his professional or business address” (paragraph 30). At the same time the responding Government accepted that the exercise of inspection had amounted to interference with the applicant companies’ rights under Article 8 ECHR. The Government however maintained that there had been no risk of arbitrariness, because the domestic courts’ review, although it took place ex post facto, was effective and genuine. This was obviously stated in order to combat the “safeguard test” usually applied by the Court. The Court found that sufficient safeguards had not existed in the legislation applicable at the time of the 8 Société Colas Est and Others v. France (app. No. 37971/97), judgment of 16 April 2002 Protection of Business Premises Under the European Convention on Human Rights events, being the one dating back to 1945. It applied the rule in Niemietz as well as the safeguard test. The Court stated firstly that the ECHR was a living instrument. As such it must be interpreted in the light of present day conditions. Building on its dynamic interpretation the Court stated: “the time has come that in certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises” (paragraph 41 of the judgment). The Court found further on that the interference was in accordance with the law and that it pursued legitimate aims, such as the economic well-being of the country and prevention of crime. Finally, the Court ruled that the interference with applicant companies’ rights was not necessary in a democratic society and found a breach of Article 8 ECHR (Barkhuyisen/van Emmerik, 15-6). The Court repeated that the Contracting States enjoyed a certain margin of appreciation in assessing the need for interference, but that it had to go hand in hand with the European supervision (for the necessity of European supervision as regards the margin of appreciation of a member-state see D.Popović, 112). Applying the safeguard test the Court stated the necessity of affording “adequate and effective safeguards against abuse” (paragraph 48). The Court’s verdict therefore was (paragraph 49): “even supposing that the entitlement to interfere may be more far reaching where the business premises of a juristic person are concerned, the Court considers, having regard to the manner of proceeding outlined above, that the impugned operations in the completion field cannot be regarded as strictly proportionate to the legitimate aims pursued”. By such an approach the Court extended the rule in Niemietz to apply to legal persons and companies as regards protection of their respective business premises (Heringa and Zwaak in Van Dijk e.a. 723). This was a significant step further in the development of the Court’s case law. 6. Limits of Protection In the most recent evolution of the Court’s case law on the subject the Court had to put some limits to the interpretation of the terms of protection of business premises under Article 8 ECHR. This was done in 2005 in the case Leveau and Fillon v. France.9 9 Leveau and Fillon v. France (app. Nos. 63512/00 and 63513/00), judgment of 6. September 2005 The case was somewhat peculiar and the applicants, although represented by the same practicing lawyer, had certain nuances in their claims before the Court. The applicants were farmers, each of them engaged in the same sort of agricultural business, namely raising pork for the meat industry. Their business is subject to inspection of the direction for veterinary services. The first applicant, Mr. Leveau, owns together with his wife a limited company and has a farm situated in a municipality neighbouring the one he lives in. The farm is several kilometers away from his flat. On a certain date in February 1997 an inspector visited the farm in order to perform control in respect of the protection of environment. The applicant arrived at the farm while the inspection had been in course. The inspector counted the pigs on the farm and found 210 of them. This led to the conclusion that the farm should fall within the category of those raising more than 40 and less than 450 pigs. The applicant was unable to present any administrative act allowing him to do so. Mr. Leveau claimed before a tribunal of the first instance that the inspector’s visit had not been announced in advance, as well as that the number of pigs counted was not precise enough. At the same time he objected to a violation of his domicile. The tribunal found that there had been no violation of the domicile. The Court of Appeal ruled that the domicile as a matter of fact may include the intimacy of professional or commercial activities of a person, but that the “pork stables designated exclusively to raising pork could by no means be considered domicile in terms of Article 8 ECHR”, as the applicant had claimed. The Court of Cassation rejected the applicant’s second appeal on the grounds that the inspector’s visits, being based on legislation aiming to protect environment, did not fall within the scope of either perquisite or domicile searches. Mr. Leveau subsequently lodged an application with the Court in Strasbourg alleging violation of Article 8 ECHR. The second applicant, Mr. Fillon, was in a slightly different situation. His farm was a part of a block of several buildings, which also included his private residence. An inspector’s visit to the farm took place in the presence of the second applicant. The inspector found that there had been more than 450 pigs at the farm. Actually they were at a number of around 600. For such a number of pigs the second applicant 45 Dragoljub Popović needed a prefectorial authorization he was unable to produce. He was also fined in criminal proceedings, before turning to Strasbourg. Before domestic courts of law Mr. Fillon claimed his domicile had been violated. The Court of Appeal found that the place of agricultural production, the only one visited by the inspector, was separated from Mr. Fillon’s place of dwelling. The Court of Cassation took the same stand as in Mr. Leveau’s case and ruled that the inspector’s visit did not fall within the scope of either perquisite or domicile searches. Before the Court in Strasbourg the first applicant maintained his allegation that his professional domicile had been violated by the inspector’s unannounced visit. The second applicant alleged that the farm represented a part of a block of buildings, which in its entirety was his domicile. He also alleged a violation of domicile under Article 8 ECHR. The Court found that the notion of domicile as understood in Niemietz was applicable in the sense that it included an office or a cabinet of a person exercising a liberal profession. The Court also underlined the existence of the rule in Chappell that a search performed at the same time at home of a physical person and in the offices belonging to him/her may constitute an interference with the person’s rights under Article 8 ECHR. To this the Court added the rule in Société Colas Est, which says that Article 8 ECHR may be interpreted in such a way as to include business premises. The Court found that inspectors’ visits had taken place in accordance with the law, namely with the legislation on environmental protection. They had had a legitimate aim to achieve such protection. Whether such an interference with applicants’ rights was proportionate to the goal pursued and necessary in a democratic society was a question that basically concerned the notion of domicile, as it could be attributed to the premises in this particular case. The Court admitted the possibility of enlarging the notion of domicile as regards the implementation of Article 8 ECHR in such a way as to include business premises. However, the Court found that allegations of the applicants in this case were groundless. The first applicant alleged that his domicile consisted of different premises, being kilometers away from one another, and belonging to different municipalities. Furthermore, the first applicant in this case was a physical person, the owner of a limited company. The premises visited by the inspector belong to the 46 company and not to the applicant. On those grounds the Court found that there had been no violation of domicile under Article 8 ECHR. It was Mr. Leveau, a physical person, who lodged the application and not the limited company, the owner of the premises visited. In the case of the second applicant the Court found that although the premises serving for agricultural production were adjacent to those being the applicant’s place of residence, forming the same block of houses, it was only the stable that had been visited by the inspector and not the office in which the applicant usually runs his business. For all those reasons the Court found that pork stables could by no means fall within the concept of domicile, not even in terms of protection of business premises, as developed under Article 8 ECHR, and issued a decision of inadmissibility of both applications. The applicants’ efforts in this case were on one hand to make use of a larger definition of the notion of domicile, and on the other to return to the idea of home in the English sense of the word. Those tendencies were to some extent contradictory, and the Court had to put limits to the use of a concept developed in its own case law. The fact that it applied to business premises could not go so far as to leave the whole concept of protection without any limits or control, as regards its meaning, that had inevitably to be found within logical considerations. 7. Conclusions Protecting business premises is an achievement of the European Law of Human Rights, which emerged in the case law of the Court. Its legal basis is Article 8 ECHR. Conditions of protection of business premises are those that usually apply to the cases before the Court in which Article 8 ECHR is invoked. A margin of appreciation is left to member-states as regards the assessment of a need for interference with the rights guaranteed by that provision. Such a margin is limited by a technique of European supervision that might be called the safeguard test. The Court always considers the existence and effectiveness of domestic remedies providing safeguards against arbitrariness in case of searches. If they either lack or fail to be effective at national level the Court is inclined to finding a violation of Article 8 ECHR. Throughout the evolution of the Court’s case law the scope of protection of business premises was enlarged in respect of persons entitled of claiming it. In Protection of Business Premises Under the European Convention on Human Rights the beginning only physical persons had such a possibility, whereas in the Court’s case law as it now stands companies, i.e. legal persons are also entitled to claim protection. Last but not least, the Court’s case law in its most recent developments had to face the question of extension of the concept of business premises. The Court refused to include into it places where some sort of production was performed, because they could not fit an everyday and logical notion of a domicile, not even in the French sense of domicile professionel. The latter seems to be limited to premises that might be considered to be those where running business effectively takes place. (Lausanne, July 2008) Bibliography T.Barkhuysen and M.L.van Emmerik, A Comparative View on the Execution of Judgments of the European Court of Human Rights, in: Th.Christou and J.P.Raymond, (eds.), European Court of Human Rights — Remedies and Execution of Judgments, London 2005 A.W.Heringa and L.Zwaak, in: P.Van Dijk e.a. (eds.) Theory and Practice of the European Convention on Human Rights, Antwerpen/Oxford 2006 Jacobs & White (C.Owey & R.C.A.White), The European Convention on Human Rights, Oxford 2002 E.Kastanas, Unité et diversité: notions autonomes et marge d’appréciation des Etats dans la jurisprudence de la Cour européenne des droits de l’homme, Bruxelles 1996 Ph. Leach, Taking a Case to the European Court of Human Rights, Oxford 2005 D.Popović, Evropski sud za ljudska prava / European Court of Human Rights, Beograd 2008 J.F.Renucci, Droit européen des droits de l’homme, Paris 2002 J.Shaw, Law of the European Union, New York 2000 F.Sudre, Droit européen et international des droits de l’homme, Paris 2005 47 Joni Khetsuriani THE AUTHORITY OF THE CONSTITUTIONAL COURT OF GEORGIA OVER ISSUES OF THE CONSTITUTIONALITY OF REFERENDUM AND ELECTIONS Joni Khetsuriani Doctor of Legal Sciences, Professor, Associate Member of the National Academy of Sciences of Georgia The competence of the Constitutional Court underwent significant modification under the Constitutional Law1 of 27 December, 2005. Prior to this amendment, the competence of the Constitutional Court was specified as follows: the Constitutional Court of Georgia “examines disputes related to the constitutionality of referendums and/or elections.” (Article 89(1)(d) of the Constitution of Georgia.) Within the scope of this authority, the Constitutional Court was charged with examining disputes arising from the constitutionality of the appointment (or non-appointment) of referendums and elections — two of the most important aspects of direct democracy — and those issues relating to the constitutionality of a particular referendum question as well as the holding of referendums and elections. Due to the special importance of referendums and elections in establishing and maintaining a state governed by the rule of law, the Constitution of Georgia envisages a number of requirements with regard to the application of these types of direct democracy. Prior to the above-mentioned constitutional amendment, the objective of the Constitutional Court was to establish (of course, in the case an application was made by a relevant subject) whether the requirements of the basic law of the country were being complied with while the institutions of the referendum and the election were in use. Determining the issue of the constitutionality of the norms that regulate these institutions (as well as any other norm or normative act) was possible under another sphere of competence of the Constitutional Court. Therefore, a subject was unable to challenge (and maybe it was really not disputable in the first place) the constitutionality of the so-called “norms” regulating elections or referendums, and directly required the examination of the constitutionality of the elections (referendum) to be held or held. For example, in 2001 the plenum of the Constitutional Court of Georgia examined complaints filed by three groups made up of Georgian Members of Parliament (each group consisted of at least one fifth of the total number of Georgian MPs) against the Central Election Commission of Georgia2. The plaintiffs demanded that the Constitutional Court declare the following actions non-constitutional in relation to Article 49 of the Constitution of Georgia: 1) The appointing of a second round of Parliamentary elections in the Abasha Election District, to be held on 14 November, 1999 and adhering to the majoritarian system; 2) The results of the second round of the Georgian Parliamentary majoritarian elections held on 14 November, 1999 in the Poti Election District; 3) The 19 November, 1999 resolution of the Georgian Central Election Commission on the “Invalidation of the results of the repeat voting in Election Precinct # 13 of the Tsalenjikha election District”. Under its 30 March, 2001 decision, the Plenum of the Constitutional Court of Georgia granted all three complaints, because it ruled that the elections in the above-mentioned districts had been held in violation of the provisions of Article 49 (1) of the Constitution of Georgia, which prescribes that Parliamentary elections should be determined by anonymous vote, pursuant to the principles of universal, equal and direct suffrage. The Constitutional Court established the necessary circumstances for making the above decision by virtue of the study of information provided in constitutional complaints, declarations and clarifications provided by participants in the constitutional process, witness statements and the written evidence included in the Constitutional Court of Georgia. Decisions, 2000-2001. Tbilisi, 2003. pg. 73-94. 2 1 Legislative Bulletin of Georgia, No 1, 04.01.06, Article 2 48 The Authority of the Constitutional Court of Georgia Over Issues of the Constitutionality of Referendum and Elections case (i.e. — in this particular case the Constitutional Court declared the elections unconstitutional on the basis of factual circumstances so that the issue of the constitutionality of the regulating norms was not raised at all. Another case that the Constitutional Court of Georgia examined in 2009 — “Citizens of Georgia — Guram Saneadze and Irakli Kotetishvili v. the Parliament of Georgia” — focused on the constitutionality of Article 9(12) of the Organic Law of Georgia on the Election Code of Georgia in relation to Article 28(1) of the Constitution of Georgia.3 According to the challenged norm “it is prohibited to make amendments to the voters’ list during the 10 days prior to the election day and any modifications proposed between the 19th and 10th day prior to election day shall be entered only subject to judicial approval.” The plaintiff noted that he returned from a business trip on the day of the elections and went to his local election precinct where it appeared that his name had not been entered on the voters’ list and that therefore he was not allowed to vote. Hence, the plaintiff believes that the — now challenged — Elections Code norm infringes upon the universal right to suffrage that is recognized and guaranteed under Article 28(1) of the Constitution of Georgia. Under the 24 January, 2005 decision the Constitutional Court of Georgia validated the complaint and declared the above-mentioned Elections Code norm unconstitutional, as it unjustifiably restricts citizens’ suffrage. The Constitutional Court noted (quite correctly) that the creation of the voters’ list is the responsibility of relevant state institutions. When a citizen is not entered on the unified voters’ list through the fault of the relevant state institution this should not form a basis for limiting suffrage. The Elections Code should ensure that, in Georgia, the universal, constitutional right to vote is upheld in a de facto manner, not just officially. In this case, the Constitutional Court of Georgia declared the election-regulating norm in question to be unconstitutional, so that the general issue of the constitutionality of the elections was not raised. Such was the competence of the Constitutional Court of Georgia and the practice of its application in the field under review, which, in our opinion, fully met the goal of enforcing the judicial protection of constitutional legitimacy with regard to election and referendum issues. In late 2005, following the amendments to the 3 Constitutional Court of Georgia. Decisions, 2005, Tbilisi, 2006, pg. 5-17 Constitution of Georgia, the above-mentioned two independent powers of the Constitutional Court were merged under one type. As a result of this legislative shift, the Constitutional Court will henceforth, in certain cases, be unable to examine issues of constitutionality with regard to elections or referendums. The Constitutional Court will examine issues of the constitutionality of an election or referendum only in cases in which a relevant subject concurrently challenges the constitutionality of the norms regulating the election/referendum. Hence, if no one openly challenges the constitutionality of the norms regulating elections/referendums, but the election or referendum in question was held in violation of the requirements of these norms and of the Constitution, then this issue may not be within the jurisdiction of the Constitutional Court. As for the possibility of the examination of the norms regulating elections/referendums separately from the election/referendum itself, in our opinion, nothing has changed in the competence of the Constitutional Court in this regard. Even following the above-mentioned modifications the Constitutional Court is authorized to examine the issue of normative constitutionality regulating the elections or a referendum separately within the scope of the norm-controlling authority granted thereof under the Constitution and legislation. For example, under the competence stipulated in Article 89(1)(f) of the Constitution of Georgia and Article 19(1)(e) of the Organic Law of Georgia on the Constitutional Court of Georgia, on the basis of a citizen’s complaint, the Constitutional Court of Georgia may consider and rule on the issue of the constitutionality of any of the norms of the Elections Code in conjunction with the fundamental human rights and freedoms recognized under Chapter 2 of the Constitution of Georgia. We use this example because a citizen, under the Legislation of Georgia regarding the Constitutional Court does not have the right to challenge the overall constitutionality of an election/referendum but (s)he can challenge the constitutionality of the norms regulating the election/referendum. Therefore, subsequent to making the above-mentioned modifications to the competence of the Constitutional Court, the competence of the Constitutional Court in relation to the resolution on the issues of the constitutionality of elections and referendums was formulated as follows: 1) The Constitutional Court is authorized to examine the constitutionality of elections and refer49 Joni Khetsuriani endums only together with the issue of the constitutionality of the norms that regulate these activities; 2) The Constitutional Court does not have the authority to examine the constitutionality of only elections and referendums; it also has the authority to examine the constitutionality of other activities besides elections; 3) The Constitutional Court is authorized to examine the issue of the constitutionality of the norms regulating elections and referendums separately. This merging of the absolutely independent competencies of the Constitutional Court, the mandating to examine those questions together, resulted, on the one hand, in the limiting of the authority of the Constitutional Court, and on the other hand it created a strong potential for misunderstandings which will definitely appear in the judicial practice during the application of these competencies. For example, if a dispute about the constitutionality of an election is to be mediated, then a declaration by the Constitutional Court of the norms regulating elections in general excludes their application during the elections to be held, for, pursuant to the Constitution of Georgia, such legal norms will no longer have legal force from the instant the Constitutional Court publishes a relevant decision (Article 89(2)). In such cases the Constitutional Court actually can not legally issue judgments on the constitutionality of the elections to be held as the Constitutional Court cannot go beyond its “norm-controlling” mandate. The same problems arise when examining disputes related to the constitutionality of an election/referendum which has already been held. Since the legislation has directly linked the mandate of the Constitutional Court in this field to establishing the constitutionality of the norms regulating elections/referendums, then naturally the Constitutional Court cannot evaluate and rule on specific, provisional violations of constitutional norms identified during a specific election/ referendum. The Constitutional Court now has a different objective. In the first place, it should decide whether or not the challenged norms regulating elections/referendums are constitutional. After doing this (but as part of the same proceedings), provided the Constitutional Court has deemed the appealed norms unconstitutional, it has to answer another question as well: what was the impact of these unconstitutional norms on the overall constitutionality of the election/referendum in question? As if everything is 50 clear. Any election/referendum carried out pursuant to unconstitutional norms should be regarded as “unconstitutional”. In our opinion, however, this is not as simple as it seems. The thing is that the electoral regulatory norm which is declared unconstitutional by the Constitutional Court, as mentioned above, loses legal force only after the Constitutional Court publishes a relevant decision. Therefore an election which has already been held cannot then be declared unconstitutional, and the results cannot be declared invalid, on the basis of a Constitutional Court decision. The decision of the Constitutional Court will be applicable only to future elections, that is, a norm which has been declared unconstitutional may not be used in the following elections. The examples brought above, in our view, illustrate the necessity of reverting the regulation of the Constitutional Court’s legislative mandate on issues of electoral constitutionality to the status quo prior to the adoption of the 27 December, 2005 Constitutional Law (i.e. — the competence of the review of disputes related to the constitutionality of the norms regulating elections/referendums and the constitutionality of elections/referendums to be formulated as two separate mandates of the Constitutional Court). The fact that, following the passing of the 27 December, 2005 Constitutional Law, the relevant amendments have not yet been made to the legislation of the Constitutional Court is to be noted as well. The Organic Law on the Constitutional Court of Georgia contains the original wording of this mandate, namely, the Constitutional Court is authorized to examine and decide on “the dispute on the constitutionality of a referendum or elections” (Article 19(1) (d)). Naturally, issues related to the mandate of the Constitutional Court are regulated in the section of the Organic Law of Georgia on the Constitutional Court of Georgia according to the content of the competence under review in a way that it does not give regard to the essence of the above-mentioned constitutional amendment, while the constitutional reform required a new regulation of the competence of the Constitutional Court related to elections/referendums by way of specific legislative acts. The legislative body has not done or has yet been unable to do this. Nevertheless, we deem it requisite to examine the essence and scope of this authority pursuant to the existing legislative norms. First of all, it is necessary to ascertain exactly which of the elections of which body or official falls under The Authority of the Constitutional Court of Georgia Over Issues of the Constitutionality of Referendum and Elections the competence of the Constitutional Court. It is clear that electoral issues are regulated by the Organic Law of Georgia on the Election Code of Georgia.4 Pursuant to this law, elections encompass “the elections of representational bodies of the public administration and the officials of the public administration through general elections” (Article 3(a)). By this definition ‘public administration’ covers everything from state authorities to local self-governance bodies, so therefore, elections covered under the Elections Code of Georgia envisage the elections of the President of Georgia, the Parliament of Georgia, the Sakrebulo (city council), the Gamgebeli (the individual local self-government representative) and the mayors (Article 1). The Organic Law of Georgia when focusing on the Constitutional Court of Georgia also rests on the same to set forth constitutional control with regard to the elections, namely, the content of Article 37 of this law, as well as other norms which suggest that the Constitutional Court of Georgia is authorized to examine disputes related to the constitutionality of the elections of the President of Georgia and the Georgian Parliament, as well as the Sakrebulo, Gamgebeli, and mayor. Within the scope of the competence under review, the subject of the dispute may be the facts of the alleged violation of the provisions of the Constitution of Georgia on the appointment and the holding of the elections of the President of Georgia, the Parliament of Georgia, the Sakrebulo, Gamgebeli, and mayor. The Constitutional Court may test the constitutionality of an election only in cases in which its regulating norm is provided in the constitution. Naturally, all norms regulating the elections process can not be stipulated in the constitution. The constitution sets forth only the basic, substantial matters surrounding elections, and outlines the main principles for holding elections. Therefore, the jurisdiction of the Constitutional Court may include only the specific facts of the violation of these principles and norms, which may be expressed in the legislative acts, as well as through the actions of relevant subjects. Considering the above-mentioned, the authority of the Constitutional Court of Georgia comprises the review and resolution of the constitutionality of the elections with regard to the following disputed issues: 1. The election of the President of Georgia was appointed in violation of the provisions set forth 4 Legislative Bulletin of Georgia, 22 August, 2001, No 25, Article 107 in Article 70(7), (10), and/or Article (3); and/or were not appointed regardless of the same provisions; 2. The election of the President of Georgia was held in violation of Article 28 and Article 70 of the Constitution of Georgia; 3. General elections or repeat elections for the Parliament of Georgia or elections for the early termination of the authority of a member of the Parliament of Georgia were appointed in violation of Article 50(3), (5), and Article 73(2) or were not appointed regardless of the same provisions; 4. Elections of the Parliament of Georgia were held in violation of the provisions of Article 28, Article 49(1) and (2) and Article 50 of the Constitution of Georgia; 5. The elections of the local self-governance bodies were appointed in violation of the provisions of Article 2(4) and Article 73(2) of the Constitution of Georgia or were not appointed regardless of the same provisions; 6. Elections of local self-governance bodies were held in violation of the provisions of Article 2(4) and Article 28 of the Constitution of Georgia. As for the constitutionality of a referendum, the jurisdiction of the Constitutional Court may cover disputes on the following issues: 1. The referendum was appointed in violation of Article 74(1) of the Constitution of Georgia or was not appointed regardless of the same provisions; 2. The holding of a referendum contravenes with the provisions set forth in Article 74(2) of the Constitution of Georgia; 3. The referendum was held in violation of the provision of Article 74(3) of the Constitution of Georgia. In our opinion, the authority of the Constitutional Court of Georgia in this field should not be limited to the above-mentioned cases. It is necessary to conceptualize the role of judicial authority in a new way and it should be further strengthened in the process of the formation of government bodies through elections. Namely, it would be advisable if the whole electoral process were to be led by the constitutional and general courts. For this purpose, first of all, the electoral mandates of these two institutions of judicial authority should be clearly separated. The objective of the general courts should be the operative dis- 51 Joni Khetsuriani posal of disputable issues during the election process (e.g. — the review of allegations of inaccuracy in the voters’ lists, etc.). And the jurisdiction of the Constitutional Court should cover the entire electoral process from the moment the elections are appointed, to the declaration of the results. The Electoral Administration should be comprised of public servants and act under the oversight of the Constitutional Court. France utilizes an approximately similar system, where a quasi-judicial body — the Constitutional Council — carries out this function.5 And in other countries (Denmark, Albania, Estonia, Latvia, Moldova, Poland, and Costa-Rica)6 judges or other officials elected by the High Council of Magistrates are directly involved in the administration of elections. The guidelines adopted on election issues by the Venice Commission (European Commission for Democracy through Law) are noteworthy; they are systematized in the Election Code approved by the EC Parliamentary Assembly in 2003. Namely, Article 75 of this Code stipulates that, usually an Election Commission should be comprised of: “a judge or a lawyer: in cases where the judicial body is assigned the responsibility of administering the elections, his independence should be guaranteed through the transparency of the process. The persons appointed by the court should not be subordinated to the election subjects.”7 We can bring the following arguments in support of such a model in the resolution of these issues: Firstly, the Constitutional Court is the most secure from governmental and party influence as it has a high degree of independence and extra possibilities for making impartial decisions; Secondly, the exercising of the authority of the Constitutional Court in the field of elections, as stipulated by current legislation in force, will take place prior to the declaration of the results of the elections and not after. After which, the issue of the legitimacy of the election in question will be above reproach, and the elected official under the consent of the Constitutional Court will take office; Thirdly, the judicial authority, which is usually separate from the legislative and executive branches, will See Constitutional Control in Foreign Countries. Ed. V. V. Maklakov — M.: Norm, 2007, pg. 192-296 6 M. Tomozek. Judicial Control of Elections in the Czech Republic, Poland and Slovakia: Guarantee of Stability or Democratic Legitimacy?: “Constitutional Justice, Messenger of the Conference of the Bodies of constitutional control of the countries of emerging democracies, Issue 2(36) 2007, pg. 111-120. 7 See European Commission for Democracy through Law (Venice Commission). Election Code. Guidelines and the explanatory address. Adopted at the 52nd sitting of the Venice Commission (Venice, 18-19 October, 2002), Tbilisi, 2003, pg. 49. 5 52 be directly involved in the formation of these two authorities through the elections, which will serve as one of the significant additional guarantees for an adequate system of checks and balances between the branches of government. Iakob Putkaradze JUDICIAL POWER AND BASIC RIGHTS IN THE NEW EDITION OF THE GEORGIAN CONSTITUTION Iakob Putkaradze Head of the Working Group on Judicial Powers and Basic Human Rights of the Georgian State Constitutional Commission Doctor of Law, Professor Intensive work is being carried out to elaborate a new draft of the acting Georgian Constitution — the supreme law of the state. The State Constitutional Commission was established and its composition was defined. The charter of the Constitution was approved by a Presidential Decree issued on 23 June, 2009. The State Constitutional Commission consists of various working groups which focus on a range of issues including: legislative power, the institution of the president, executive power, judicial power and basic rights, territorial issues, local self-government, and the revision of the Constitution, among others. According to the decree, the fundamental task of the Constitutional Commission is to elaborate constitutional draft law which ensures the modern, sustainable and stable development of the state, and supports the relationship between civil society and the state. After the revision of the constitution, the state’s power was placed under certain limitations, and an effective, balanced system of state bodies and a new vision of other constitutional regulations will be create­d. The State Constitutional Commission is a diverse body whose representatives are connected with a wide variety of interests, including Unions defined by order of the president of Georgia; non-governmental organizations; the high councils of the Autonomous Republics of Abkhazia and Adjara; the administration of the temporary administrative-territorial unit of the former South Ossetia Autonomous region; and members of the state bodies defined in the current Constitution of Georgia and presented by high officials, as well as academic personnel and other specialists as defined by the order of the President of Georgia. The thoughtfully-selected composition of the Constitutional Commission gives us hope that, at the end of the process, a wise, quality product will be developed. Unfortunately, representatives of the non-parliamentary opposition — which includes some important specialists and political leaders — have chosen not to take part in the activities of the State Constitutional Commission. Instead, they have formed a parallel committee — the Public Constitutional Commission — and are acting separately. Obviously, the best option would be to work together on the establishment of constitutional amendments. However, working separately should not be seen as a disaster: the members of the two commissions are not “enemies”, but rather they are mutually supportive and the fact that they are thinking and working on answers to these similar problems is encouraging. The proposed draft of the Constitutional amendments was elaborated on the bases of the work of both these groups. Let us hope that both sides take on the responsibility for finding ways to integrate their respective ideas Because the constitution is the basic law and the supreme law, it requires appropriate respect. The Georgian Constitution is a product of complex and thorough collective work. Indeed, this is how the constitutions of most successful, democratic countries were developed. With the elaboration and adoption of the draft of an initial constitution, it has been proven that if allowances are not made for so-called “big compromises”, these attempts to create a comprehensive, basic state legislation will be destined for failure. This should be taken into account in Georgia’s case as well, which means that the general public and the political forces of the state should be ready to compromise. It will be impossible for the State Constitutional Commission to complete the whole project in the 5-6 month period that has been allocated for this work. Therefore, the commission’s mandate should basically be regarded as successful if the government branches are reasonably balanced and the proposed 53 Iakob Putkaradze model is relevant for the Georgian state. Such an outcome would solve the most sensitive internal problem facing the development of the contemporary state of Georgia. The guidelines governing the management of the modern Georgian state should be developed on time, otherwise the state could find itself mired in a disastrous deadlock. The state cannot be properly governed if the Constitution is tailor-made to suit the needs of specific political parties or individuals, or any kind of special interests, instead of society as a whole. From the point of view of stable development, Georgian statehood is not in a very attractive position. The use of violence to overthrow the legally installed authorities in 1991-1992 has come to serve as the legitimizing force behind the destructive tendencies that have come to characterize modern Georgian statehood. For almost 20 years, the process of changing the state authorities legitimately and in legitimate terms — as required by normal public and state life — has been highly problematic. The definition of a clear constitutional regulation is crucial, so that any armed activities carried out in the so-called “name of the people” are considered to be a revolt instead of some sort of “rescue reevaluation” aimed at changing the authorities. Constitutional reform is a multifaceted process and it is impossible to discuss all the pursuant issues together. Therefore, the presented article focuses mainly on the activities of the “Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission,” which has been primarily considering Chapters Two and Five of the Constitution of Georgia. These chapters of the Constitution of Georgia accordingly cover basic human rights and freedoms and issues concerning judicial power. At the same time, this particular working group should also focus on other chapters dealing with the norms, principles and regulations which address and are related to justice and/or basic human rights. The basic directions of this topic are covered in this article only in general and on the example of separate probable constitutional amendments. The goal and the defining principle of the working group is to ensure the independence and impartiality of the entire justice system: the courts and judges on the one hand, and on the other hand, the development of solid and effective constitutional guarantees for the protection of basic human rights and freedoms. 54 Legal mechanisms relevant to the Georgian reality, that will simultaneously limit and place responsibility on the state authorities and ensure the practical realization of human rights need to be developed. The working group takes into account the actual working experience of the norms defined in the relevant chapters of the constitution. The results of their usage in practice are reviewed and the negative aspects identified. Legal gaps, deformations and deviations are in this way revealed, the reasons for these problems are identified and appropriate constitutional-legal innovations are drawn up. To eradicate any gaps, new norms will be elaborated in detail and the existing problematic norms — those that need to be partially or completely rejected — will be formulated as needed with relevant editing, or recommendations will be made that they be omitted from the text altogether. The Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission started its activities on 8 July, 2009. The topics identified in this article were discussed at working group sessions. Some topics were also reviewed at the larger session of the editorial group of the Georgian State Constitutional Commission held in Batumi on 5-7 August, 2009. This article presents the basic results of these short-term (three week) activities. These are the opinions about the suggested reforms to the acting Constitution of Georgia relating to human rights and judiciary powers. The basic directions and anticipated specific constitutional amendments are planned first with regard to the judiciary authorities, and then to the field of basic human rights. The problems raised in the process of revising the constitutional bases of the judiciary powers are major topics of discussion. The discussion concerning these revisions is to consider both major judicial outlets: primarily it will address the Common Courts and partially it will address the Constitutional Court. It is thought that, unlike the presidential, legislative and executive branches of the state, no substantial changes are required in the current constitution with relation to the judicial branch and basic rights. However, as will be proven through the examples presented in this article, the reality is different and this sphere of Georgian statehood is actually responsible for one of the basic arguments that the current constitution be amended in the first place. The judicial branch, and how it is defined in the constitution, forms the very basis of state power. Judicial Power and Basic Rights in the New Edition of the Georgian Constitution Therefore, to admit that the constitution needs to be reformed but at the same time to say that the sections dealing with the judicial system require no modification does not make sense. Since the 1995 inception of the current constitution (which remains in force to this day), the state of the judicial system has been absolutely unacceptable and in need of fundamental change. This fact reflects the inherently flawed nature of the current constitution, and by extension the disregard our supreme state legislation exhibits towards the sanctity of the legal principle. This is a situation which is unacceptable not only for a lawful state, but for a generally civilized nation. Let us discuss the circumstances which serve as the bases for this type of strict but fair, and ultimately useful evaluation of the current situation. We will examine the relationship between Paragraph 2, Article 83 and Paragraph 3, Article 90 of the Constitution of Georgia with the Organic Laws of Georgia on the Supreme Court and the Common Courts of Georgia. According to Paragraph 3, Article 90 of the Constitution of Georgia, the “Rule for the authority, organization, activity and pre-term cancellation of the authorities of the members of the Supreme Court is defined by the law.” In the given case, the usage of the term “law” without a qualifying word such as “organic” is a direct indication that the constitution envisages the adoption of a general, or current law. Notwithstanding, the Organic Law on “The Georgian Supreme Court” was adopted on 12 May, 1999. It is completely unfathomable and inadmissible: the Constitution of Georgia states one thing and they are doing another. The regulation of Paragraph 1, Article 107 of the “Transitional Regulation” of the Constitution of Georgia cannot serve as an explanation that “according to the constitution, the acting legislation of the court organization remains in force until the relevant organic laws on judicial organization are adopted.” This means that the organic laws on judicial organization are adopted in accordance with the constitution. But the constitution does not cover such organic laws and accordingly their adoption can not be regarded as legal. The quotation of Article 107 is an indication of the fact that there is inconsistency and discord between the separate regulations of the constitution in relationship to the definition of the constitutional-legal bases of judicial powers. In addition, it needs to be asked: what served as the basis for the adoption of organic law in 1999? Even if it was envisaged by the constitution, according to Para- graph 2, Article 106 of the “Transitional Regulations”, it should have been adopted within two years from when the basic law entered into force, which means the deadline should have been 25 November, 1997. Accordingly, the Organic Law on the “Supreme Court of Georgia” does not have a constitutional basis. It is therefore an “unlawful law.” According to the original edition of Paragraph 2, Article 83 of the Constitution of Georgia, “justice is executed by the common courts. Their system and rule of justice is defined by the law”. It is obvious that the constitution envisages the adoption of a general law in this case as well. At the same time, in apparent opposition to the constitution, the Organic Law on “Common Courts” was adopted on 13 June, 1997. Unlike the Organic Law on the “Supreme Court of Georgia” it fits into the two year limit as defined by the constitution. Notwithstanding, the adoption of the organic law, instead of the normal law as defined by the constitution is a willful act and cannot be regarded as a lawful act. One more condition should be mentioned in this case: the illegally adopted Organic Law on the “Supreme Court of Georgia” has been in place for 12 years and is still functioning — although there was an attempt, after nine years, to fit the illegally adapted Organic Law on “Common Courts” into the legislative framework. Paragraph 2, Article 83 of the Constitution of Georgia was formulated with this addition on 27 December, 2006: “Justice is executed by the Common Courts. Their system is defined by the Organic Law.” Although these changes were undertaken, the illegally adopted Organic Law on “Common Courts” still cannot be considered legitimate without proper approval. The main issue is the following awkward inconsistency: after the mentioned changes, according to the current situation the Constitution of Georgia envisages the adoption of an “Organic Law on Common Courts” in general on the one hand and another law dealing specifically with the Supreme Court on the other hand. According to the opinions expressed in the Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission, it would be preferable if, instead of two different levels of normative acts envisaged under the Constitution of Georgia — the Organic Law on “Common Courts” and formally (according to the constitution) the law on the “Supreme Court of Georgia” — only one law — the Organic Law on Common Courts — be approved. 55 Iakob Putkaradze This normative act would define the legal status of all courts at all levels (including the Supreme Court of Georgia). As for Paragraph 2, Article 83 of the Constitution of Georgia, in the new edition the “Rule of Judicial Administration” is omitted from the text. The original text envisaged the need for defining the rule of judicial administration, which is not included in the new edition. This is very important, for theoretically there is a possibility of defining the “Rule of Judicial Administration” through a bylaw. Despite the fact that Paragraph 1, Subparagraph J, Article 3 of the Constitution of Georgia envisages “Procedural Legislation” (“belonging to special gamgeobas (“city councils”) of the higher state bodies of Georgia — procedural legislation”), this is not helpful, for the “Rule of Judicial Administration” and “Procedural Legislation” do not have identical meanings. The status of the “Highest Cassation Court” (Article 90.1 of the Constitution of Georgia) of the Supreme Court of Georgia still needs to be defined. In the absence of a lower level cassation court, the defining term “highest” needs to be extracted from the text of the constitution. These examples provide clear proof that one of the important directions of constitutional reform should be the creation of a consistent definition and management of the constitutional-legal foundation of the country’s judicial power. In other cases, without overcoming the existing gaps and misunderstandings on the constitutional level, the judicial branch will not function comprehensively and it would be groundless to rely on it from both an ethical, as well as a legal point of view. Strengthening the guarantees of judicial independence — a process that can be achieved with a variety of methods and tools — is an extremely complicated and multifaceted aspect in the reformation of the constitutional foundation of judicial power. We will discuss some of them. Currently, Paragraph 2, Article 84; Paragraph 2, Article 86; and Paragraph 3, Article 90 of the Constitution of Georgia all define certain rules for handling judicial power: requiting, appointing, depriving a judge of a case, preterm discharge, preterm termination of the authorities, or moving a judge to a different position. To advance the constitutional-legal status of the judge and guarantee his/her independence, it is recommended that these issues be regulated through organic rules, instead of the current, or “normal” rules. 56 Special attention should be devoted to district, city and appellate courts, for their activities serve as the basis for the opinion of the execution of justice in the state. According to the acting rule (introduced on 27 December, 2006), which is guaranteed by Paragraph 1, Article 861 of the constitution, the appointment and discharge of judges at the mentioned courts falls under the jurisdiction of the High Council of Justice of Georgia. The introduction of such a rule should be considered neither proper nor appropriate. The High Council of Justice was established almost 11 years ago, but general public’s level of trust towards this institution as well as the public reputations of its judges remains quite low. It is a fact that the High Council of Justice cannot fix the situation that it has inherited from the Soviet era. Furthermore, the reformation of this body was not helped by a series of changes undertaken during 2004-2007 to improve its image and effectiveness. Five apparent reforms were carried out over these four years (June, 2004; November, 2005; May, 2006; and December, 2007), but they failed to produce any appropriate results. All this clearly reveals that more active measures need to be taken. The Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission is covering the issue of changing the rule for appointing and discharging the judges of the district, city, and appellate courts. In this regard, the general principles of the European Charter attract our attention: the charter envisages only the participation of the body with the actual status of the High Council of Justice in making decisions that are related to the selection, recruitment, appointment, promotion, and termination of judges (Paragraph 1.3, chapter 1). Taking into account this principle, the constitutional change concerning the appointment of judges can be imagined in this way: judicial candidates for position on district, city and appellate courts shall be selected by the High Council of Justice. The selected candidates will be presented to the Parliament of Georgia by the President of Georgia. The Parliament will then approve or reject the presented candidates with the help of a predefined number of votes (for example, a majority of the list composition). At the same time, when making this change, we should take into account that Supreme Court judges are elected by Parliament after they have been nominated by the President. If these suggested changes are implemented, the rules for appointing judges to the common court system will be more or less similar, judicial independence will Judicial Power and Basic Rights in the New Edition of the Georgian Constitution be considerably strengthened, the quality indicators for the selection of candidates will be improved, publicity will be increased, and the process will no longer be limited to a closed circle of judicial power. Finally, the mechanism of cooperation and balances among the different branches of government will start functioning. The suggested rule concerning the appointment of common court judges by the highest representative body of the state has some precedent. For example, Latvia, Serbia, Slovenia, the Ukraine, Azerbaijan, Lithuania and Japan employ similar systems: in Latvia, according to Article 84 of the Latvian Constitution, judges are approved by the Seim (parliament). According to Article 147 of the Constitution of Serbia, a person who has been selected top serve as a judge for the first time, is selected by the national council on the basis of nominations made by the highest judicial council. According to Article 130 of the Constitution of Slovenia, judges are selected by the state board after being nominated by the judicial council. Article 128 of the Constitution of the Ukraine states that the judges of the common courts are selected by the Rada (for his/her initial five year term, the judge is first appointed by the President of the Ukraine). The judges of the Azerbaijani Appellate Court, similar to the judges of the Supreme Court, are nominated by the President and approved by the Mili board (Articles 131-132 of the Constitution of Azerbaijan). In Lithuania, according to the article 112, the judges of the Appellate Court and the chairman are appointed by the president at the approval of the Seim. In some places, common court judges are not only appointed by the highest representative body — the parliament — but by the government as well. According to Articles 79 and 80 of the Constitution of Japan, all the judges of the Supreme Court (except for the Chief Justice) are appointed by the “offices” (the implementing body of the executive authority). The judges of the lower instance courts are appointed by the offices from a list of persons nominated by the Supreme Court. Accordingly, these examples of constitutions from foreign countries prove that the procedure for appointing judges of the district, city, and appellate courts, which has been suggested for Georgia, is acceptable and needs to be taken into account. The Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission discusses the issue of solving the discharge of Common Court judges in a new way. Impeachment is one of the options. Some of the procedures of the impeachment of judges (for example, the method of filing the case) still needs to be ruminated upon and, hopefully, solved (currently the impeachment rule can only be applied to the head of the Supreme Court, and only in cases of violation against the constitution and/or the commission of a crime). Obviously, considering the relevant experience of foreign countries, the elaboration of other active mechanisms for relieving common court judges of their positions should not be excluded. For example, impeachment could be achieved through an ordinary vote of Parliament, or through the involvement of the Georgian High Council of Justice. Whatever the change, it should not concern the Constitutional Court of Georgia as this body makes all decisions about the pre-term dismissal of its members by itself. According to the constitutions of some foreign states, the dismissal of a judge can be undertaken by the Parliament through impeachment proceedings, or through a general vote. In the U.S. the pre-term dismissal of a judge can only be carried out through the impeachment process. The removal of a judge only through impeachment is one of the 12 basic principles that serve as the bases to ensure the independence of the U.S. judicial system. The impeachment process is used to carry out judicial dismissal in Japan as well. Article 78 of the Constitution of Japan stipulates that judge cannot be dismissed through impeachment without a public trial, except for those cases in which the court finds the judge in question to be mentally deficient or physically unable to fulfill his/her responsibilities. The example of Lithuania is also interesting. Here, both possibilities are legal. According to Article 112 of the Constitution of Lithuania, the Head of the Supreme Court and any other judge can be dismissed by the Seim (Parliament) after being nominated by the President. As for the head of the appellate court and the judges — they can be dismissed by the President with the approval of the Seim. According to Article 116 of the Constitution of Lithuania, any judge — the head and other justices of the Supreme Court, as well as the head and other justices of the Lithuanian Appellate Court — who violates the constitution, breaks his/her oath, or is found guilty of committing a crime, may be impeached by the Seim. Dismissal of common court judges through normal voting by the parliament is accepted, for example, in the Ukraine (Article 126 and 128 of the Ukrainian Constitution). The Constitution of Latvia (Article 84) stipulates that the Seim can dismiss judges against 57 Iakob Putkaradze their wish only in cases envisaged by law on the bases of the decision of the judicial disciplinary board, or on the bases of a guilty court verdict concerning a criminal case. The Constitution of Australia states (Paragraph 2, Article 72) that judges can be dismissed at the recommendation of both chambers. There is a special rule in Argentina which states that judges can be dismissed on the basis of a case filed by the lower chamber of parliament and a special commission established jointly by both chambers (see Article 115 of the Constitution of Argentina). The Mili of Azerbaijan, on the bases of the nomination of the president, is authorized to dismiss constitutional court, supreme court and court of appeal judges with a minimum of 83 votes and other judges with a minimum of 63 votes (Paragraph V, Article 128 of the Constitution of Azerbaijan). Considering all these examples, it would be acceptable for Georgia if common court judges can be dismissed by the Georgian Parliament through normal voting on the bases of the nomination of the High Council of Justice. The existence of lifelong judicial tenure is accepted in many countries throughout the world and forms one of the principles which serves as the basis for the independence of the judiciary system. Certain types of judges are appointed for life in countries including the U.S., Argentina, France, Belgium, Luxemburg, Poland, the Czech Republic, Croatia, Serbia, Ukraine, Russia, Kazakhstan, Kyrgyzstan, Moldova, Armenia, Estonia, Latvia, Israel, Greece, Macedonia, Germany, Spain, Turkey and Romania. At the moment in Georgia, a term of judicial authority runs for ten years. It is already time that, from the point of view of the interests of the judiciary, the rule on the lifelong tenure of common court judges — as in other states — be introduced in Georgia as well. Relevant amendments would have to be made in Articles 86.2 and 90.2 of the Constitution of Georgia. It is true, that the formula of the mentioned article does not exclude the determination of the rule concerning the appointment of Judges for a term of “not less than 10 years”, but for greater clarification, the text still needs to be changed and new additions created. The practice of lifelong judicial tenure shall not apply to members of the Georgian Constitutional Court, considering the fact that these judges cannot be appointed to the same position for a second term. This particular approach to the appointment of common court judges, as well as members of those agencies of constitutional control or supervision, has 58 been legalized by the constitutions of such states as: France, Poland, the Czech Republic, Slovenia and the Ukraine. A member of the French Constitutional Council is appointed to a term of nine years and reappointment is not allowed (Article 56 of the French Constitution), and judges of the common courts are irreplaceable (Article 64); the judges of the Polish Common Court are also appointed for an indefinite period (Articles 179-189), while the term of authority of the constitutional tribunal equals nine years and a justice it is not allowed to be reappointed (Article 194). Constitutional Court Judges in the Czech Republic are appointed for ten year terms (Article 84.1), while judges of the Czech Common Courts are appointed for an indefinite period (Article 93.1). A judge of the Constitutional Court in Slovakia is appointed for a 12 year term (Article 134.2) and a Slovak Common Court judge is appointed for life (145.1). In the Ukraine, the first time a common court judge is appointed it is for five years. After this term has passed they are then elected for life (Article 128). Ukrainian Constitutional Court judges are appointed for nine year terms without the permission for reappointment (Article 148). Therefore the rule being suggested for Georgia is approved and acceptable. In the original draft of the Georgian Constitution, the minimum age limit for common court judges and members of the constitutional court was 30 and 35 years respectively. On 25 December, 2005 an amendment was made to the constitution, reducing the minimum age limit to 28 years for common court judges and 30 years for judges of the constitutional court. In order to justify this reduction of the minimum age limit, a shortage of skilled legal personnel was cited. But it is inappropriate to invoke a shortage of legal personnel in a small country like Georgia, where several hundred students are enrolled in the law school of only one of the many universities in just one academic year. Undoubtedly, some other remedy should be sought here. It is inadmissible to try to fill these vacancies through the reduction of the minimum age limit for the judicial chair, as it is a potentially harmful factor for the administration of justice and constitutional control, as this limits the possibilities of acquiring a relatively full volume of knowledge and the skills necessary to serve in the position of judge. For participants in legal proceedings, with regard to winning confidence and respect through the acquisition of the necessary knowledge, experience and precedent suitable for their official position, it is ap- Judicial Power and Basic Rights in the New Edition of the Georgian Constitution propriate to again increase the minimum judicial age limit: back to 30 years for judges of law courts; and back to 35 years for members of the Georgian Constitutional Court. There is nothing unusual or unacceptable in this presumptive constitutional amendment. This can be confirmed by a quick look at the respective minimum age limits which have been set in other countries. For example, in accordance with Article 101 of the Constitution of Brazil, a citizen who has reached the age of 35 years can be appointed as a judge of the Supreme Federal Court. In Asian countries, Tajikistan for example, the constitution has established that lawyers who are at least 30 years of age can be appointed to the Tajikistani Supreme Court, the Supreme Economic Court, the Court of the Gorno-Badakhshan Autonomous Province, district courts and the Court of Dushanbe (Article 85). Likewise, in Azerbaijan, a citizen who has reached the age of 30 can be appointed as a judge (the Constitution of Azerbaijan, Article 126.1). It might be interesting to mention that this minimum age (30 years) is also set for the office of the Prime Minister of the Republic of Azerbaijan (Art. 121.1). Also in the Republic of Slovakia, a citizen who has reached the age of 30 can be appointed as a judge (the Constitution of Slovakia, Article 145.2). It should be especially worthwhile to point out that, in accordance with the Constitution of Slovakia (Article 143.3), a citizen who has reached at least 40 years of age can appointed as a judge at the Constitutional Court. Furthermore, in the Ukraine, in accordance with Article 148 of the constitution, a citizen who has reached the age of 40 by the date of his/her appointment can become a judge of the constitutional court. There was a discussion at the working group about expanding the authority of the Constitutional Court of Georgia, which would further increase its role and importance. With this end in view, a draft is being prepared for supplements to be introduced in Article 89 of the Constitution of Georgia. It is supposed that the constitutional court should be the final arbiter of any issues of constitutionality with regard to a particular case, rendered by a court of law, after all the intrastate means of judicial defense have been used up. As a result of the implementation of this novelty the activities of law courts will be improved. On behalf of such a presumptive constitutional amendment, it is important to mention that the Constitutional Court of the Federal Republic of Germany has a similar authority. A review of the respective procedure in fundamental laws of former Soviet republics similar to Georgia — such as Azerbaijan, Belarus, Russia, Armenia, Tajikistan and possibly others — must be of interest for Georgia. The Constitution of Azerbaijan (Article 130) grants the Constitutional Court authorization to consider issues of conformity to the Supreme Court’s decisions with the Constitution and the laws of the Republic. Any person is authorized to apply to the Constitutional Court about this issue in accordance with the procedure established by law and lodge a complaint against judicial acts which violated his/her rights and freedoms. The public defender (ombudsman) also has this same authority. In accordance with the Constitution of Belarus, the Constitutional Court gives its opinions on the conformity of acts by the Supreme Court, the Supreme Economic Court and the Prosecutor General with the Constitution of Belarus, the respective international legal acts, laws, decrees and resolutions (Article 116). The Constitutional Court of the Russian Federation checks the constitutionality of laws implemented in particular cases in accordance with the procedure established by federal law on the basis of complaints filed concerning the violation of the constitutional rights and freedoms of the country’s citizens (see the Constitution of Russian Federation, Article 125.4). In accordance with Article 89 of the Constitution of Tajikistan, the Constitutional Court is authorized to determine the conformity of judicial acts by the Supreme Court and the Supreme Economic Court. The Constitution of Armenia stipulates that any person can address the Armenian Constitutional Court regarding any particular case — in accordance with the procedure, established by the Constitution and the Constitutional Court, when there is a final act of court, no means of court defense are left and the constitutionality of the implemented provision of law is being appealed (Article 101.6). It is especially noteworthy that the mentioned provision of the Constitution of Armenia was not included in the first version (1995) of the fundamental law. It was added to the constitution at the referendum of November 27, 2005. This circumstance indicates that a similar amendment is necessary in the Georgian Constitution as well, and it should be implemented in due time. Seriously, the issue of establishing a judicial institute in Georgia should be carefully considered and thought out (Paragraph 5, Article 82 of the Constitution of Georgia). 59 Iakob Putkaradze At the same time, it can be stated for certain that it would be patently unacceptable to introduce a judicial institute on a “phased” basis: for example, to first establish such an institute in the capital only. This would be a form of discrimination against residents of all the other regions of Georgia (those who live outside of the capital), which is clearly prohibited by Article 14 of the Constitution of Georgia. It must be stressed that this has to do with fundamental, universal human rights that are equally applied to everybody. Experiments in this field are inadmissible. It was exactly on this pretext of so-called “residential” discrimination that the Constitutional Court of Georgia ruled the appointment of the Mayors in Tbilisi and Poti as unconstitutional (given the fact that the mayors of other cities are elected by local residents of their respective regions). Generally, the selection of judges is an excessively complicated, prolonged and multifaceted process. Together with general contradictory arguments in relation to jurors, some particularities and specific characteristic features typical to Georgia must also be taken into account, in particular, the circumstances that in Georgia (a) considering the general number of residents, it will be very difficult to select the required number of qualified jurors; (b) the general level of the legal culture of the overall populace is low; (c) it is practically impossible to observe the principle of impartiality, as in this small country everybody is everybody’s relative or friend or fellow-sponsor, and furthermore, there is the centuries-old national tradition of mutual assistance, and; (d) the settlement of matters by backdoor influence is widespread and deep-rooted. In order to eliminate the possibility of adding new difficulties to the problems which already exist in the field of judicial power, it is necessary that the State Constitutional Committee discuss the problems related to establishing a judicial institute and expresses its attitude towards this important issue. The experience of Armenia is noteworthy in connection with the establishment of an institute of jurors. In the first (1995) version of the Constitution of the Republic of Armenia, in the chapter dealing with judicial power (Article 91) it was indicated that cases set by legal-judicial proceedings are implemented with the participation of a juror. This provision was repealed — it is not indicated in the new effectual version of the Constitution of Republic of Armenia (amendments were made to the Constitution through the referendum of November 27, 2005). This situa60 tion is undoubtedly worth considering and being taken into account. As for basic human rights and freedoms in general, various significant constitutional amendments are expected to be implemented in this field as well. Among these, some likely amendments, which can be more or less confidently discussed at this stage of activities of the Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission, are briefly considered in the present article. The group works intensively on the problems of social rights. The issue of their presentation in the Constitution of Georgia is to be considered and decided upon. The fact that social rights are very important must be taken into account; they are related to the vital interests of humanity. The central and determinative provision for working in the field of social rights is presented in the preamble of the Constitution of Georgia. Here is declared the firm will of Georgian citizens on the establishment of the social state. Of course, establishing such a state would be impossible without the acknowledgment and implementation of social rights. Through the involvement of community: in particular representatives of trade unions and invited experts; and the taking into account of the experience of foreign countries, the Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission tries to find out, particularly which social rights need attention and to what extent they should be indicated in the Constitution of Georgia. The issue of the reinforcement of efficient constitutional guarantees for property rights protection is extremely urgent in the field of human rights and judicial power and cannot be disregarded by the respective working group of the Constitutional Commission. For this purpose, it is intended to prepare proposals and make respective modifications and amendments for the revision of Article 21 of the Constitution of Georgia. The interrelation of Clauses 2 and 3 of Article 22 of the Constitution of Georgia should be altered in the segment where the possibility of limiting the basic right of free entrance to Georgia for Georgian citizens is illegitimately created: the right of free entrance to Georgia for Georgian citizens is included in Clause 2, which is covered by limitations set forth in Clause 3. Such a limitation is inadmissible. A Georgian citizen should be able to enter Georgia absolutely freely, without any restraint. The amendment must be im- Judicial Power and Basic Rights in the New Edition of the Georgian Constitution plemented considering that the right of Georgian citizen to enter Georgia without restraint must be excluded from the interrelation of Clauses 2 and 3 (the limitations set forth in Clause 3). For this purpose, the provision under discussion must be excluded from Clause 2. The place for it should be assigned elsewhere (in particular, it can be placed after Clause 3, or even as a separate clause). The provision of Clause 6, Article 18, according to which the pre-trial detention of a defendant must not exceed a period of nine months, should also be modified. Such a reading means that the maximum nine month term of pre-trial detention is set for defendants only. In reality, the situation is different: along with “defendant” a “person on trial” is also meant which is a party having a different legal status. Therefore, the period of nine months set forth in Clause 6, Article 18 is the total pre-trial detention term for a defendant, as well as for a person on trial. Accordingly, the respective text in the constitution needs to be modified — the term “person on trial” must be added and a constitutional provision must be formulated in a way that the pre-trial detention term for a defendant and person on trial should not exceed nine months. Otherwise, the term of pre-trial detention of a person on trial is not implied in the nine-month period set by the constitution. And this means an increase of the nine-month term of pre-trial detention and a significant violation of the fundamental human right of freedom. Two more expected modifications in the field of fundamental rights apply to Clause 9 of Article 42. Unfortunately, there are many cases in Georgia, when citizens fall victim to malpractice or malfeasance of functionaries. Clause 9 of Article 42 of the Constitution defines that “full compensation of damage illegally caused by state and local self-administration agencies and officials is guaranteed for everyone, from the state funds.” The cited constitutional provision is generally good, but it is not satisfactorily complete and needs to be clarified. The considered constitutional provision first of all should be modified from the point of view that, issuing from the legal status of local self-administration, the full compensation of damage illegally caused by local self-administration agencies and officials should be judicially guaranteed from the funds of self-administration itself, and not from state funds. Besides, we cannot consider lawful the fact that the Georgian Constitution ignores the responsibility of a functionary who violates the law and that attention is paid to the compensation of the damage caused only from state and self-administration funds. For preventive consideration, it is appropriate to add the following provision to Clause 9 of Article 42 of the Constitution: “In cases determined by law and in accordance with the established procedure, compensation of the mentioned damage will also be incurred on the respective official.” This provision is reasonable, and besides it will contain an implication of warning which will have a beneficial effect on the reduction of cases featuring a violation of human rights. In this regard, it is interesting to note that the Constitution of Greece states that if before the term of detention is expired and no prescribed action has been implemented, any prison supervisor or any civil or military servant responsible for supervision of a detained person must immediately release this person. Any infringer will be punished for illegal imprisionment, and compensation for all damages caused to the affected person will be incurred by the infringer in accordance with the procedure prescribed by law, including pecuniary compensation for moral damage (the Constitution of Greece, Article 6.3). Finally, let us formulate the results of the subject discussion, underline individual modifications and amendments to be presumably included in the Georgian Constitution in the fields of (I) judicial power and (II) fundamental rights: I. 1. Instead of separate organic laws adopted through the violation of Articles 83.2 and 90.3 of the Constitution regarding law courts and the Supreme Court of Georgia, only one organic law “On law courts” should be adopted, which will define the legal status of all levels of law court (including the Supreme Court of Georgia). I. 2. The status of the Supreme Court of Georgia should be clarified, meaning that it is “the supreme appellate court” (Article 90.1): in the absence of inferior appellate courts thereof, the word “supreme” should be withdrawn from the text of the Constitution. I. 3. Judicial selection for law courts, appointments, temporary suspension, pre-term dismissal and pre-term termination of powers or other procedures concerning change of office should be defined by organic law and not by current public law. I. 4. The procedure of the appointment of judges in law courts should be modified (Clause 1 of Article 861 of the Constitution): judicial candidates 61 Iakob Putkaradze for regional (municipal) appellate courts should be selected by the Supreme Council of Justice; the selected candidates should be presented by the President of Georgia to the Parliament for ratification; and the Parliament, for its part, should ratify or reject the presented candidates by a pre-determined number of votes (say, by majority of party list). I. 5. The procedure for the dismissal of judges from regional (municipal) appellate courts should be modified: with proper involvement of the Supreme Council of Justice of Georgia, they should be dismissed by the Parliament through impeachment or through an ordinary poll. I. 5. The rule of the non-replacement of law court judges should be directly established according to Articles 86.2 and 90.2 of the Constitution, that is, their appointment without term. I. 7. The minimum age limit necessary to take the office of judge should be increased: 30 years instead of 28 years for law court judges; and 35 years instead of 30 years for members of the Constitutional Court. I. 8. The authority of the Constitutional Court of Georgia should be expanded: the Constitutional Court should consider and decide upon the issue of constitutionality of the final act on a particular case, rendered by a law court, when all the intrastate means of judicial defense are used up. I. 9. It is necessary that the State Constitutional Committee discuss problems related to establishing an institute of jurors and expresses its attitude towards this important issue. II. 1. The Constitution should indicate the fundamental social human rights in a relatively completed and guaranteed manner. II. 2. In order to consolidate the constitutional guarantees for property rights protection, proposals should be prepared for revision of Article 21 of the Constitution and for making respective modifications and amendments to it. II. 3. The possibility legalized in accordance with Clauses 2 and 3 of Article 22, regarding limitation of the right of free entrance to Georgia for Georgian citizens, should be eliminated. II. 4. The provision of Clause 6 of Article 18, according to which the term of pre-trial detention must not exceed 9 months: the text should be formulated in such a way that the term of pretrial detention for a defendant and a person on trial must not exceed 9 months. 62 II. 5. Clause 9 of Article 42 of the Constitution of Georgia should by modified in such a way that through judicial procedures full compensation of damage illegally caused by state and local selfadministration agencies and officials should be guaranteed for everyone, from the funds of selfadministration and not from the state funds, as it is defined by the text currently in effect. II. 6. The provision: “In cases determined by law and in accordance with the established procedure, compensation of the mentioned damage will be incurred on respective official, too” — will be added to the new version of Clause 9 of Article 42 — through judicial procedures full compensation of damage illegally caused by state and local self-administration agencies and officials should be guaranteed for everyone, from the state and self-administration funds. Such are the individual presumable constitutional amendments in the field of judicial power and fundamental rights. If the proposed modifications and amendments are adopted and if it is necessary, in “transitional provisions” there will be indicated that any of amendments in the field of judicial power and fundamental rights will come into effect in accordance with stipulation thereof (for example, the new minimum age limit necessary to take an office will not extend to judges who have already been appointed); or they will come into effect with a deferral — after a certain period of time (for example, consummation of the procedure of the consideration and deciding upon the constitutionality of final acts by a law court will be deferred for the necessary term). For the future, obviously there will be more considerations and proposals to be worked out. We hope that the final results of the activities of the Working Group on Judicial Powers and Basic Rights of the Georgian State Constitutional Commission on the whole will be satisfactory. András Sajó FROM MILITANT DEMOCRACY TO THE PREVENTIVE STATE? András Sajó Judge at the European Court of Human Rights; Professor of Law, Central European University, Budapest. In what follows I will discuss constitutional paradigms that emerge form clusters of counter-terror techniques that are used in liberal and illiberal democracies that face the challenge of international Islamist1 terrorism. The security measures seem to cluster around intellectually distinguishable models with very different consequences as to separation of powers, scope of rights and procedures and levels of fundamental rights restrictions. The models are introduced in Part I where I speculate that in case the terrorist threat becomes pervasive the instruments of militant democracy and prevention will merge in a new constitutional arrangement that is called here the Counter-terror state. Part II considers at more detail the experience of constitutional regimes that have experienced threats to the survival of the political regime. Elements of militant democracy2 and of the preventive state, and also emergency3 might be relevant in the analysis of the state’s reactions to terror. The experience of militant democracy, as a constitutionally legitimised departure from ‘ordinary’ constitutionalism is relevant, given the intimate relation between terror and fundamentalist political movements. I will also consider the contemporary drift towards the ‘preventive state’. The ‘preventive state’ is a specific form of welfare state paternalism that operates against non-political security threats. The ‘preThe term ‘Islamist’ refers to a distorted, or perverted minority version of Islam, like Salafism. 2 The summary of militant democracy follows an earlier paper, Militant Democracy and Transition Towards Democracy in A. Sajo (ed.) Militant Democracy. Eleven International Publishing. 2004. 3 The article does not discuss the constitutional experience of what is technically called ‘state of emergency’, though this is one of the standard legal regimes that was used to handle domestic terrorism from Northern Ireland to India. For some of the experiences see International Commission of Jurists. States of Emergency. Their Impact on Human Rights. 1983. But state of emergency is applied to a great number of different problems and is quite often the state’s reaction to all forms of insurgency. Indeed, it is the opposite of exceptionality, if one considers how often it is used. D O’Donnell, States of Exception. 21 ICJ Review, December 1978. p. 52. reports that at that time there were at least 30 of the then existing states having some kind of emergency. 1 ventive state’ is the result of piecemeal constitutional change that is endorsed by judicial reinterpretation of constitutional principles. In Part III I discuss the potential range of rights restrictions emerging in the logic of the Counter-terror state. Such restrictions depend on social choices, and I show in Part IV that in light of the distortions of decision-making under conditions of uncertainty and panic that emerges in regard to disasters, it is not clear who should make the societal determination on the proper level of risk-taking. The risk-related decisions do not follow from principles that apply in the determination of rights for ordinary circumstances. In case of serious terrorist threat with the possibility of mass disaster or daily damage rights related mistakes do have disastrous consequences. This precondition is fundamentally different from the one that exists at the times of ‘normalcy’, which serves for the ordinary constitutional calculus of liberty. Constitutionalism as an order of liberty is about risk taking; however the preconditions for such position may not be present in case of actual threat of disaster. The Concluding remarks emphasise that there are substantive, principled and pragmatic reasons for a formal, constitutionally foreseen Counter-terror state. These reasons may or may not be compelling, as the matter is somewhat contingent on the nature of the very democracy. The precondition for the legitimacy of such state is that it should be one that results from public deliberation and that the citizens are deprived of the conditions for such deliberation in the name of security. Although in light of liberal legal theory catastrophes may require the rethinking of the place of rights in a democracy, and mass international terrorism is such a catastrophe, a switch to a Counter-terror state is not obvious, given lack of certainty about terrorism and because of prudential considerations. As a matter of practical development a likely alternative to a full scale Counter-terror state is a move away from the judicial state towards a preventive state with a detention regime4. We are toying with the possibility of turning Big Article 22 of the Indian Constitution provides for such detention regime. In normal times preventive detention under the Constitution applies for a period of three months from the date of detention. Right to counsel does not apply. The maximum period beyond three months may be provided for 4 63 András Sajó Brother’s surveillance and potential arbitrariness into a condition of everyday life that we don’t even notice anymore. However, currently the judicial state has not abandoned its position in most liberal democracies and it continues to remind us that restrictions are not normal, though might be legitimate. 1.Constitutional Alternatives in Face of Permanent Threat of Disaster In many regards international Islamist terrorism as a form of fundamentalist violence represents (in a less calculable, rationality defying way) a fundamental challenge to democracy or any other existing stable state order that offers basic security. Of course, the suicidal element and the desire of total destruction of the enemy without any distinction between targets, be it civilian or governmental is a specificity that turns Islamist international terrorism into a category of its own, a development that if materializes will force the rethinking of the currently available constitutional solutions. But for the time being one finds that the attempts are to accommodate the problem handling into the existing schemes though allowing for amendments. A number of clustered constitutional responses have emerged or are on the horizon of the constitutionally permissible in response to the international terrorist threats. I refer to clusters, as instead of well identifiable sets of constitutional norms following identifiable principles we have at the moment sets and trends of legal techniques that effect constitutional rights and arrangements, remaining so far mostly within the boundaries of the existing constitutional text.5 With or without textual change it might be that the emerging structures will solidify into new models of constitutional arrangements in democracies. One may find these models troubling from a liberal constitutionalist perspective and may come up with proposals how to make the emerging system more human rights responsive, but these normative and statutorily by Parliament for certain class of cases. Under Article 22(4) the detainee might be held for a period beyond three months three months if: a)an Advisory Board consisting of a sitting , retired high court judge or a person qualified to be a High Court judge holds before the expiry of three months that there is sufficient cause to continue to hold the detainee in preventive detention or b) If Parliament prescribes the circumstances under which or the class of cases in which a detainee’s detention may be continued beyond three months without the opinion of the Advisory Board. While in the post-independence Gopalan case the Supreme Court considered Article 22 a complete court by 1973 elements of judicial supervisions were required, moving the detention regime within the judicial state, see Sambhu Nath Sarkar vs State of West Bengal 1974(1) SCR 1, although not without further uncertainties. 5 The European arrest warrant that was developed in a different context seems very important in the international cooperation against terrorism but it may require changes to the German and Polish Constitutions. 64 pragmatic efforts, although part of the very formation of the new structures should not deter us from intellectually mapping the potential constitutional scenery emerging in the “battlefield”. A constitutional state’s self-defence will remain within a constitutional paradigm only if it is capable of excluding conceptually and institutionally the abuse of opportunities for restricting rights, or, to be realistic, at least of keeping them within rational bounds.6 There are a number of attempts both at the normative and the practical level to satisfy requirements of self-defence. Many constitutional texts are inclined to disregard the possibility of disorder (see the Constitution of the United States). But behind the denial (including denial by admissibility), the constitution has an unarticulated, under-theorized, uncertain but fundamental relation to the possibility of its own destruction that comes to light when the government and the forces of order face politics that is based on emotionalism or permanent threat. In such circumstances the state cannot avoid to bring out its own foundational violence. The law is reluctant to address and confront such violence, partly because it does not want to admit that by limiting its own violence, it would undermine its chances of survival. The important intellectual development seems to be that constitutional thought turned towards the problem of system self-defence7. Considering these developments and other institutional reactions of democracies facing political action, which have a high probability of irreversible disastrous damage to democracy, or the very foundation, the carrier of that democracy, the political order that provides security to citizens, the following paradigms emerged: - accommodation of the handling of the threat into the existing system, with shifts in the proThe Schmittian version of emergency and war are outside this model. This is not to say that there are no differences (at least in principle) between the law of war of liberal states and that of the illiberal state. However these principled assumptions that presuppose a liberal culture and people that have embedded the humanism of that culture easily, though not necessarily succumb to the existential necessities of war. 7 Not the first time, as militant democracy indicates. However, mainstream constitutional thought remained to a great extent unshaken by it, and emergency and related matters never managed to occupy the place of central and decisive problem that structures constitutional thinking. The present trend points in that direction, though it is not clear that the breakthrough will occur, and not only because there is still hope that the terrorists war against the infidel will not last for decades, and there will not be a ‘second attack’. Constitutional theory is particularly good in compartmentalization, and security related constitutional issues might be marginalized again, partly because the bulk of public law continues to do with mundane matters like segregating zoning, or school curriculum. Constitutional problems of school curriculum are a great litmus test: if secularism, neutrality, freedom of religion related matters are discussed in the shadow of terrorism, for example when you have to factor into the argument how a curriculum choice fosters terrorism or creates sentiments of exclusion that might generate terrorists etc, than security concerns have really changed constitutional concerns. 6 From Militant Democracy to the Preventive State? - - - portionality analysis that is used in the judicial and administrative choices (‘business as usual’8, or ‘Please don’t panic, the police is controlling the situation’9); “Twilight zone”10 or “times of stress”11 model: here the counter-terror arsenal is still within the parameters of the judicial state. The model centers on the proper standards to be applied by the judiciary in the constitutional handling of the terrorism problem. Militant democracy (applied to terrorism) Preventive state (including its strong version of a detention state, where as a result of the preventive considerations mass detention (and wherever applicable its functional equivalents, e.g. expulsion, extradition, relocation, deprivation of citizenship) is used as a preferred choice of action; Counter-terror state; State of emergency: I. A number of constitutions consider disorder to be an unusual but possible contingency. This is discussed under the heading of emergency. In this understanding of emergency the exceptional state is foreseen and is made acceptable, but only as a transitory departure from ordinary tranquillity. The constitutionally authorized, procedurally predetermined departure from ordinary decision-making and human rights (or a special temporary version of it12). II. The term is used in Oren Gross, Chaos And Rules: Should Responses To Violent Crises Always Be Constitutional? 112 Yale L.J. 1011, 1021 who describes this ‘framework’ in the following terms: “The Business as Usual model is based on notions of constitutional absolutism and perfection. According to this model, ordinary legal rules and norms continue to be followed strictly with no substantive change even in times of emergency and crisis. The law in times of war remains the same as in times of peace.” He also consider Other models of emergency powers that he groups together under the general category of “models of accommodation”: these are close to what I refer to using Michel Rosenfeld’s ‘times of stress’ expression. In Oren Gross’ view the ‘models of accommodation’ attempt to accommodate, within the existing normative structure, security considerations and needs. Though the ordinary system is kept intact as much as possible, some exceptional adjustments are introduced to accommodate exigency. This compromise, it is argued, allows for the continued faithful adherence to the principle of the rule of law and to fundamental democratic values, while at the same time providing the state with adequate measures to withstand the storm wrought by the crisis.” The additional models I discuss depart (partly, and not always deliberately) from the existing patterns claiming that the departure is needed to save the very values it has to disregard in certain regards. 9 This is a reference to a Hungarian novel by Jeno Rejto (Quarantine in the Grand Hotel). At the moment the chief of police utters the above sentence, panic burst out. 10 Peter Margulies, Judging Terror in the “Zone of Twilight”: Exigency, Institutional Equity, and Procedure After September 11th. 84 B.U.L. Rev. 383 (2004). 11 Michel Rosenfeld, JUDICIAL BALANCING IN TIMES OF STRESS: COMPARING DIVERSE APPROACHES TO THE WAR ON TERROR, in this issue??? 12 Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, (2004). The crisis is understood to be acute, the polity is singularly focused on survival and all other political concerns and objectives recede into the background, at 1040. 8 The alternative meaning of emergency refers to the use of unconstrained executive (military and security) power where the constitutional element is that there will be a return to constitutional values after the crisis and the decisionmakers might be subject to ex post accountability13. We also have to consider the denial of constitutionalism in the Schmittian version of emergency, where the declaration of the state of emergency is the privilege of the sovereign and it is, therefore above or outside the constitutional scheme: here the only constraint is lack of success. - War (using all the war powers, however undetermined these are under the constitution but claiming that this is all constitutional because that’s the way the constitution is designed).14 These various responses are not final and isolated from each other15. Quite the opposite the clusters are unstable and fluid, partly because the very nature and importance of international Islamist terrorism, or at least its political understanding changes, it is unstable and mixed, and partly because the alternative constitutional responses are non simply reactions. Further, it is not clear that the world has changed in a fundamental way and all our life and constitutionalism have to be restructured in a definitive way. Democracies and other states as well as their relations have, however, looking at certain techniques and certain institutional arrangements and cooperations in a changing way, in a counter-terrorist perspective. The elements of the emerging structures are not new but the probabilistic or panic driven perspective on the use of these measures points to the possibility of a constitutional paradigm shift, away from a good times liberty regimes16 to a bad times security regime. 13 “However, bright-line demarcations between normalcy and emergency are all too frequently untenable, and distinctions between the two made difficult, if not impossible. In fact, the exception is hardly an exception at all.” “there may be circumstances where the appropriate method of tackling grave dangers and threats entails going outside the constitutional order, at times even violating otherwise accepted constitutional principles, rules, and norms. Such a response, if pursued in appropriate circumstances and properly applied, may strengthen rather than weaken, and result in more rather than less, long-term constitutional fidelity and commitment to the rule of law.” Gross, op. cit. 1022-23. In a way this is an honest and well reasoned attempt to save Carl Schmitt from Carl Schmitt. 14 “The traditional unwillingness of courts to decide constitutional questions unnecessarily also illustrates in a rough way the … maxim… In time of war the laws are silent.” William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime 202 (1998). 15 Noah Feldman, Choices of Law, Choices of War, 25 Harv. J. L. & Pub. Pol’y 457 (2002) argues that international terrorism fits both into the ‘war’ and the ‘crime’ models. Perhaps none is adequate. 16 L. A. Powe, Jr., Situating Schauer, 72 Notre Dame L. Rev. 1519, 1531-32 (1997): speech is a “good times civil liberty”. 65 András Sajó The above approaches differ to a great extent in regard to their assumptions of risk (how likely the disaster is) and also about risk-taking. With the exception of the ‘business as usual’ approach these models expressly enable preventive measures based on more or less realistic probabilistic assumptions.17 As legal-political strategies they face the following questions: how one determines, on what grounds, in which procedure the probability of future stochastic occurrences? Even where there is no clear cut textual recognition of the demands of these models they capture in an interesting way the cluster of legal reactions that emerge in the context of international terrorism, facilitated but not necessarily always related to terrorism. At the intersection of the different policies a cluster of specifically international terrorism driven measures appears. I call this conglomerate a Counterterror state. Many combinations of these measures emerged and are in the waiting in contemporary democracies, all justified in terms of counter-terror scenarios. Many of the constituent techniques originate from militant democracy of from the preventive state, and share to some extent the legitimisation used in these models. My assumption is that, ceteris paribus, that the democracies will not recognise in the text of the constitution a full-fledged Counter-terror state as a set of extraordinary authorisations, except if a qualitative change in the perception of the terrorist threat forces society to re-evaluate its fundamental risk assumptions. The present trends point towards the normalisation of additional preventive measures and the extension of the preventive state to new areas of ordinary life, in combination with elements of militant democracy. 2. Handling of Political Threats in Militant Democracy and the Preventive State In this article I discuss only the militant democracy and the preventive state paradigms that are likely to get some kind of constitutional ratification in the constitutional system of many democracies. Picking mostly 17 “The court of appeal in Düsseldorf held that, in search of so-called “sleepers” of Islamic terror organizations, the circle of persons that has to submit to a grid search has to be definable and restricted. Only personal data of citizens of suspicious countries or of a specific religious group (e.g. Muslim persons) are allowed to be passed on, not data of German citizens, that are neither Muslim nor born in a suspicious country.” Lepsius Liberty, Security, and Terrorism: The Legal Position in Germany, 5 German Law Journal No. 5 (1 May 2004) Part Two, referring to decisions of OLG Düsseldorf, Neue Zeitschrift für Verwaltungsrecht 629 (2002), with different reasoning OLG Frankfurt, op. cit., 626-627. http://www.germanlawjournal. com/article.php?id=423#_edn11 66 from these two arsenals a distinct counter-terror state is conceivable. The distinctness of the counter-terror state refers to the fact that its preventive solutions are narrowly tailored to be applicable to terrorism only. However, and in a very problematic way, it is more and more likely that the legal policies of counter-terrorism will have inevitable spillover effects. The result is that the counter-terror state will be one that incorporates and legitimizes an extended preventive state that also incorporates with or without clear constitutionalisation elements of militant democracy. 2. 1. What is militant democracy? Majority rule creates the opportunity for deformation of democracy and the imposition of a concept of good life that does not allow for alternative forms and autonomous definition of the good life. Within the framework of the democratic process, using the mechanisms of democracy (free speech, assembly, elections), a regime may be established that dissolves democracy. “It will always remain one of the best jokes of democracy that it provides its own deadly enemies with the means with which it can be destroyed.”18 Tolerance might become suicidal in certain political circumstances. As Lord Acton put it: “At one period toleration would destroy society; at another, persecution is fatal to liberty.”19 Today, militant democracy is most commonly understood as the fight against radical movements, especially parties, and their activities. The approach was incorporated into a fully democratic constitution in Germany after World War II.20 Article 17 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) reflects that concern in a way that might justify many counter-terrorist measures: 18 “Das wird immer einer der besten Witze der Demokratie bleiben, dass sie ihren Todfeinden die Mittel selber stellte, durch die sie vernichtet wurde,” Joseph Goebbels, quoted in K.D. Bracher et al. (Eds.), Nationalsozialistiche Diktatur, 1933-1945: Ein Bilanz, 16 (1983). The term ‘militant democracy’ became known in the English-language political science literature in an essay of Karl Loewenstein in 1937. Loewenstein, Militant Democracy and Fundamental Rights, 31 American Political Science Review 417 (1937). Prior to World War II, a number of constitutional regimes used various techniques that belong to the arsenal of militant democracy (outlawing parties, prohibition of uniforms, and so on) before the phrase was even born. However, very often these measures were intended to protect semi-democratic and autocratic political systems against popular fascist movements that made impressive gains at the elections. 19 Lord Acton, Smith’s Irish History, in History of Freedom, edited by Figgis and Lawrence. London. 1907. 252 20 Several components of Germany’s Basic Law serve the purpose of preventing the abuse of democracy. These basic constitutional choices relate primarily to institutions that are closely connected to political democracy (most typically, political parties). Some post-communist constitutions enacted during the transition to democracy follow the German example to certain extent by expressly prohibiting the exclusive control over the state by any organization (see e.g., Hungary’s Constitution, Art. 2(3); Poland’s Constitution, Art. 13). From Militant Democracy to the Preventive State? “(n)othing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” But the threat of totalitarian movements is not simply that Fascist will win at the elections. Lowenstein argued that authoritarian regimes are held together not by violence but by emotionalism. This is what replaces the rule of law. Authoritarian regimes and fascist movements possess an arsenal of techniques for emotional mobilization. Nationalist fervour and intimidation, with the implied threat of physical coercion, are the most common elements of political emotionalism. The only genuine goal of such politics and movements is to seize and retain power at all costs. This description applies to Al-Quaida. They can succeed in this goal only if they operate within the democratic institutional infrastructure. Democracies are rather defenceless against emotionally manipulative politics and challenges that exploit constitutional opportunities. In this regard the emotionalism of totalitarian religious fundamentalism is not very far from that of the emotionalism of extreme right and left totalitarian movements. Moreover, the intimidation and scare resulting from terror is also generating a kind of politics of emotion or other form of irrationality. Although today, at least in secular societies, the likelihood that the democratic regime will be destroyed through the abuse of democratic political institutions and processes is slight, it is clear that the defensive mechanisms of democracy are rather weak. We don’t have a clear picture about the capacity of the state to resist terrorism (partly because it is said that a clear understanding of these capacities would help the ‘enemy’) and we have even less knowledge about the fate of liberal constitutional structures, once the state and the political forces in power become unconstrained in the name of efficient counter-terrorism. The current institutional arrangements offer little control over the legitimacy (and appropriateness) of restrictive measures that increase the power of state agencies over the citizens. There are obvious differences between contemporary international terrorism21 and the abuse of 21 “By and large there is agreement that a terrorist act, group, or organization is characterized, first and foremost, by the choice of a particular strategy, i.e. to inflict visibly massive harm on non-combatants in order to destabilize the enemy system or regime. The strategy of terrorism sets it off from other forms of militant action such as partisan and guerilla warfare that target the persons and infrastructure of a political regime or occupying power. The second defining feature is the proclaimed goal of ter- democratic institutions that resulted in the militant democracy answer. International terrorists operate clandestinely and aim at public intimidation. The prevailing legal definition emphasizes that the violence against the public intends to intimidate the public in order to force changes in public policies. These changes are assumed to occur because of the specific responsiveness of a democratic political community. The other fundamental goal of a terrorist act is the disruption of a governmental function or other service crucial to the public with the aim of compelling public authorities to specific behavior. The emotional politics behind the totalitarian movement relies on open legal techniques of democracy in order to establish an irreversibly anti-democratic system of power.22 This irreversible shift might be the goal of Islamist fundamentalists in Muslim countries where militant democracy would be applicable, were these states democracies. One could object that the differences between terrorism and political fundamentalism are increasingly blurred. In Algeria an extreme measure of militant democracy was applied when elections were suspended in view of the emerging victory of (primarily local) Islamist fundamentalists, who were engaged in large scale terrorism.23 Certain national terrorist organisations did have a ‘civilian’ political wing and national radical Islamist movements and local religious organirorism: Terrorists oppose, and want to change radically, the socio-political status quo, whether on the national, the regional, or the “global” level. This sets terrorism off from the different forms of organized crime (and the war economy of warlords) that seek profit.” Renate Mayntz, Organizational Forms of Terrorism Hierarchy, Network, or a Type sui generis? MPIfG Discussion Paper 04/4. International terrorism has a religious rather than secular basis, it is international in scope, and is characterized by its network structure that makes the fight against it difficult and the existing arsenal of the law difficult to apply. See e.g. Hirschmann, Kai, 2000: The Changing Face of Terrorism. In: International Politics and Society 7(3), 299–310. 22 The historical experience suggests that most of the emotional politics based totalitarian movements rely on violence and terrorist techniques are part of their arsenal of intimidation. 23 One of the problems with the Counter-terror state is that the robust and long-lasting restrictions often occur in countries that are hardly mature democracies: in fact the anti-terror measures and permanent emergency create a semblance of oppression and remain an obstacle to democracy. Given the scale of terrorism in countries like Algeria that is bordering permanent civil war it is of course hard to advocate full blown democracy. There is a paradox here that reminds me of the paradox of militant democracy: anti-terror measures that defy human rights and democracy are allegedly legitimate. There is a ‘counter-paradox’ exemplified in recent Greek legislation. Law 3251/2004 exempts from terrorist crime those acts which are committed with the aim to establish or defend (!!) a democratic regime or in the exercise of fundamental rights. This approach seems to go against the understanding of militant democracy (the prohibition on abuse of rights) of the European Convention of Human Rights (Articles 17 and 18). The attitude of the Greek legislation is shared by many countries where the government, like that of South Africa came out of a struggle where the resistance movement (and the government) were involved in acts of terror. Of course, with the benefit of hindsight ANC turned to be different from fundamentalist Islamist terror as it, indeed, established a democracy. The position represented in the Greek law is a clearly abusive and the pro-democracy terrorism argument makes it impossible at the moment to come up with an international treaty on terrorism. 67 András Sajó sations may have strong relations to international terrorist networks.24 A further potential difference is that hand militant democracy was designed to fight against secular totalitarian movements. But totalitarian political movements often relied on terrorist methods and were in control of illegal, subvert networks. Moreover, anti-secularist groups that concentrate on terror in countries with Muslim majorities are interested in the creation of radically Islamist states. This is an effort to create an irreversibly anti-democratic regime where the fundamental self-regarding choices of the individual are not tolerated. From the perspective on ‘traditional’ political terrorism this kind of religiously motivated international terrorism is fundamentally different, as many movements relying on terrorism where not against democracy as a principle, but wanted a democratic regime for their kin. Intellectually, however, there is a striking community: both forms of political action are part of distinct worldviews of political fanaticism, the archenemy of liberalism. It is not surprising that the legal techniques, which were developed against totalitarian political movements are increasingly used in democracies against religious fundamentalist movements, which are considered to provide support networks to terrorist networks. These religious movements intend to combine the advantages the democratic process and rule of law offers with terrorism, and also against terrorist movements that are primarily interested in destabilising Westernised Islamist or ‘infidel’ regimes. Some religious fundamentalist movements rely on terrorist intimidation, just like non-totalitarian political movements, e.g. see Basque political extremism and ETA. Historically too, totalitarian movements, which used democratic means relied at the same time on terrorist intimidation (see the SA in Weimar Germany). 2.2. The Preventive State One can only speculate how far reaching the counter-terror reactions will be. But it is easy to foresee that these reactions have the potential to move towards a new separation of powers arrangement and to a restructuring of fundamental rights. The emerging paradigm is one of a preventive state, a term introduced by Professor Carol Steiker25. Professor Steiker emphasized that criminal law and criminal law related law enforcement activities are not the 24 See, e.g., Victor Ferreres Comella, The New Regulation of Political Parties in Spain, and the Decision to Outlaw Batasuna, in Militant Democracy, supra note 2, at 133. 25 Carol S. Steiker, op. cit. 68 most important among the techniques intended to neutralize dangerous individuals. In the aftermath of 9/11 this preventive paradigm became increasingly applicable to the measures and practices that are taken against terrorism but which affect the whole society.26 Counter-terror measures, and particularly those that were taken in response to international terrorist threats aim at prevention. Such measures rely on the techniques that were developed to handle dangerous people (drug traffickers, money launderers, child molesters, etc.,) and aggravate a certain crisis of legality. The measures are, to a great extent not new. The new development is that the crossing of thresholds is becoming routine. By crossing of threshold I mean that the results of increased, and legally easy to obtain surveillance are not only used in the prevention context but these are increasingly admissible in criminal procedures. For example, the USA Patriot Act eased the restrictions under which wiretap results can be presented in a criminal context. Equally important for the emergence of the preventive state is that the boarder-crossing measures, which are being made permissible in the terrorism context may become acceptable outside the global terrorism context, and not simply for anti-crime purposes but for general administrative purposes of the welfare state. The emerging concept of preventive state is increasingly used beyond the original criminal law paradigm to describe a structure where a new technique of disaster prevention (that is replacing crime prevention) plays a decisive role in structuring the whole constitutional order. The prevention that originates from the handling of dangerous people neatly coincides with certain concerns of the modern welfare state, at least its more paternalistic versions, that undertakes to prevent all sorts of misfortune, using techniques of surveillance.27 The surveillance policies that are emerging outside the counter-terror world, e.g., a national DNA bank for health or crime 26 For the application of the term in the anti-terrorist context see Eric S. Janus, The Preventive State, Terrorists and Sexual Predators: Countering the Threat of a New Outsider Jurisprudence Criminal Law Bulletin, Vol. 40, No 6. p. 576, 2004; Robert M. Chesney, THE SLEEPER SCENARIO: TERRORISMSUPPORT LAWS AND THE DEMANDS OF PREVENTION, 42 HARV. J. LEGIS. 1 (2005). The term emerged in Germany too (Praeventionsstaat) Erhard Denninger, Freiheit durch Sicherheit. Wie viel Schutz der inneren Sicherheit verlangt und verträgt das deutsche Grundgesetz?, Kritische Justiz 467 (2002). 27 This is again remarkably captured in Steiker, op. cit. at 779: “The growth of the regulatory state in the post-New Deal Twentieth Century further established the pervasive presence and knowledge of the state in many guises, creating new opportunities for prophylactic state action.” Ibid at 778-79.. For a similar trend and that the anti-terrorism techniques are relying on a continuous development that predates 9/11 see, in the German context Lepsius, op. cit. From Militant Democracy to the Preventive State? identification purposes will become possible once such data bank is established under the dictates of terror-prevention. But the preventive state may move beyond the reinforcement of current trends aimed at the restructuring of fundamental rights. The detention regime represents a particularly problematic version of prevention, and not only because the grounds of dangerousness are elusive and in the terrorist context will easily remain within the privilege of the executive. Mass detention is structurally conducive to mass abuse of human rights given the level of dependency of the detainees and the interests of the jailers. In case a prevention state is constitutionalised, it is of primary importance to have all possible safeguards for humane treatment and control over detention conditions. The practical difficulty is that this is again cost intensive and it is difficult to allocate resources to protect a group that is considered as being composed of dehumanised people. Such dehumanisation is facilitated by the self-presentation of the suicide bomber. To grant ‘prisoner of war’ status to the detainees is perhaps conducive to a minimal humanitarian protection. However, contrary to prisoners of war, the typical detainee is suspect of dangerous tendencies; he is a person who either participated with a certain probability, or is supposed to be willing to participate in heinous crimes28, and therefore should be subject to punishment. A typical prisoner of war shall be released after the cessation of hostilities, while this does not apply here, as the detainee shall be brought to justice.29 On the other hand the basis of detention will be the potential to become a terror supporter: the model of this logic is again the US Japanese internment. Korematsu may not be good law anymore, but “the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest. For example, in times of war and insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.”30 From a constitutionalist perspective the issue is to what extent the preventive state model can fit into the present constitutional arrangements, and, more broadly, is there a need for a separate constitutional model that incorporates the prevention state concerns. Of course, the preventive state as it stands today, before being turned into a full scale constitutional program, is an individualized, piecemeal set of developments that point in the same direction.31 In the process of forming a proper answer to this question it seems reasonable to consider the experiences with militant democracy that represents an attempt to incorporate into the constitution and into the concept of constitutionalism a certain level of departure from the ‘normal’ structures and principles that animate liberal constitutional democracies. 28 The way inchoate crimes are interpreted and given how serious terrorist crimes are, it is possible that the law will criminalize the intent (willingness) to participate in terror acts – a development that certainly challenges all the assumptions of enlightenment based criminal law. 29 The alternative status model for the potential terror supporter is the one of the mentally disabled suicidal person who is committed to psychiatric placement until contrary medical finding. Here due process or (in Europe) patient’s rights require regular revision of the status of the person, while in a terrorist detention situation the personal conditions do not matter, and release is dependent on the ending of the ‘hostilities’. 30 United States v. Salerno, 481 U.S. 739 (1987). One should ask: if this is true what is the relevance of the Congressional Habeas Corpus suspension provision of the American Constitution? In case of an alleged crime one needs suspension of the Constitution but in the lesser case of alleged dangerousness there is no need for that? 31 Specific elements of the preventive state non-program are presented as explicit programs, for example when it comes to handling of sex-offenders in the community. But there is no all encompassing program relating the general nature of the state behind the preventive state. It is more a matter of muddling through independent but structurally similar decisions. 32 This distinction follows in a way R. Cooter, Constitutional Consequentialism: Bargain Democracy versus Median Democracy, 3 Theoretical Inquiries in Law 1, at 3 (January 2002). Cooter argues that in case of a shared value, the debate regarding a related policy is generally not about the value itself but about the meaning and interpretation of that value. The ultimate dilemma that comes up in accepting militant democracy is this: at what point is the community (co-existence within the community) endangered without exclusion of certain participants. 33 This is very different from personal liberty deprivation, where different standards shall apply. 2.3. The Counter-terror State as a Mixed Regime Both militant democracy and the preventive state as components of an counter-terror state are in principle disregarding certain fundamental values of the very system they stood up to defend. This charge of self-contradiction is erroneous, and the paradox is only illusory, or, in fact, hypocritical. There is a clear difference between those who disagree regarding permissible democratic policies and those who simply deny the reliance on democracy as a primary process of decision-making and the legitimacy of democratic life forms in civil society.32 Among the latter we find the enemies of democracy, including terrorists. Fundamentalist terrorists attack the people in democracies not only because of the imperialism of the ‘infidel’, but also because of the challenge that democracy represents to the community of true believers, who are to be kept in the flock. The religious movements that lend public support to the religiously motivated ideas of terrorists are the legitimate targets of the counter-terror state as militant democracy. The threat of religious subversion may justify restrictions and prohibitions regarding the political participation of such movements33. Already Locke, 69 András Sajó in his letter on religious tolerance, has indicated that the state’s tolerance toward religions does not extend to those who, in the name of religion, demand civil powers, that is, privileges, or who are not willing to be tolerant toward others: “those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration.”34 It is a fundamental assumption of liberal democracy that it operates only where some kind of rational discourse is possible and such discourse is understood to be the normative basis of the decision-making in the community. However, the denial of participatory rights is intended to maintain the conditions of that discourse. This justification of the anti-democratic, rightsrestricting measures, special regimes against fundamental enemies of democracies does not rule out the possibility that the measures taken under the dictates of exigency that fundamentally depart from the principles of democracy will actually undermine democracy itself. While the militant democracy elements in the counter-terror state are questionable as far as democracy is protected here by restricting democracy (at the expense of specific groups) the prevalent element of the preventive state, viz. penetration undermines the traditional concept of liberal constitutionalism. The fight against terrorism, like against other forms of subversion of democracy needs penetration (among other into terrorist networks but also into all areas of social life in order to detect terrorist potentials) with all the related rule of law problems. By penetration I refer to a kind of gathering of information that enables reasonable and informed preventive action. The counter-terror state, following the logic of militant democracy intends to protect certain fundamental rights and values by denying those rights to some people who are believed to abuse the system. The logic runs the risk of singling out certain groups of people as potential abusers of the opportunities that democracy and human rights have to offer. There is a fundamental difference between the actual strategies, even beyond the difference in the handling of probabilities. For example, even if one finds legitimate the rights restrictions that are dictated by militant democracy considerations, the extension of the restriction of freedoms in the name of counterterrorism is potentially broader than what is dictated 34 J. Locke, A Letter Concerning Toleration: Latin and English Texts, ( J. Horton & S. Mendus, (eds.)) 47 (1991). 70 in a militant democracy. In the case of militant democracy situations the restrictive measures are rather well targeted at the “enemy’ to be contained. The ‘enemy’ is relatively well identifiable and the impact of the restriction on the rest of the society is not direct (at least in principle) so that the right to associate, travel, speak should not be affected for people unrelated to the suspect groups, movements, ideas that are considered dangerous to democracy. Many of these considerations apply to the political wing of the Islamists operating primarily among Muslims. But the logic of the counter-terror measures that applies to clandestine terror networks is different. In this context, exactly because these measures are intended to eliminate the knowledge disparity that helps the clandestine terrorist and those who work on recruitment, are based on massive data collection and other related restrictions of movement, assembly, etc. Such measures affect all, and additional restrictions of freedom are likewise spilling over the whole society, in order to restrict the possibilities of the terrorist. For that reason, in the counter-terror policy perspective all citizens are to some extent treated as being, at least to a small extent, potential terrorists. The right to travel, privacy, property of all citizens (see the ease to freeze assets) etc., are affected. Further, these measures are costly, and sometimes prohibitively so. It follows, in line with the above considerations of probabilistic calculus that the preventive efforts will concentrate on certain select groups. Because of the intricate relation between Islam (a perverted minority version of it) and the terrorist networks in the probabilistic calculus it seems to be reasonable to concentrate the above mentioned rights restricting efforts on the ‘suspect groups’, even if the suspect group cannot be well defined among the much larger group of Muslims. Moreover, in some countries; at least at the level of public opinion there seems to be some sympathy among larger groups of Muslims who are therefore a logical extended target of prevention suspicion. This runs a fundamental risk of institutionalised discrimination. The singling out is not justified by sufficient reasons, and it remains, at best, at the level of justification offered in Korematsu: if the military commander believes that people of Japanese ancestry will collaborate with the Japanese, assuming the Japanese troops reach the West Coast, than people of Japanese ancestry are dangerous. The concerns about the repressive abuse of detention “are especially heightened when the state moves, as it often From Militant Democracy to the Preventive State? does in the criminal context, against a discrete and targeted enemy.”35 One cannot deny a priori that in face of a threat of disaster that cannot be well calculated but has the potential to entail fundamental damage to the existence of the society, a different fundamental assumption may prevail about the possibilities and conditions of public order that serves as a precondition for the constitutional regime. The constitutionalisation of militant democracy is one such option, and the procedural safeguards built into the use of the arsenal of militant democracy, the effort to rely on judicial control, though using different substantive criteria than in ‘normal’ law indicate the genuine commitment to the rule of law and democracy. In a militant democracy institutional design allows for a certain switch from the default model of democracy that serves for most of the assumptions of the constitutional regime. A second switch mechanism that emerged in constitutional design is that of a state of emergency. For our purposes here it is sufficient to refer to a Weberian ideal type of constitutionalized emergency36 where judicial control is less important, and where the emphasis is on a shift on decisionmaking from the legislative to the executive. Here the constitutional control exists primarily in the form of strong procedural rules that are required for the authorization and continuation of emergency.37 Further, restrictions of most fundamental rights are foreseen ex ante for the emergency situation, though additional restrictions may be introduced during the emergency. Such possibility is foreseen in international human rights documents. The theoretical issue is whether the still uncertain repertoire of the counter-terror state fits into the state of emergency. It is intellectually attractive to handle the counter-terror exception as a separate category that combines elements of militant democracy, and, perhaps, state of war, though a very exceptional one (without an identifiable enemy state). Of course, there are serious arguments to keep the repertoire within the paradigm of the existing mechanisms of the democratic state, applying standard proportionality analysis combined with new administra35 Carol S. Steiker, Foreword: The Limits of the Preventive State. 88 The Journal of Criminal Law and Criminology 3. 771. 806 (1998). 36 Emergency as state of exception, as envisioned in Carl Schmitt’s nightmere is outside the legal sphere. It will be the success, not the legality of this exceptionalist, unbound political regime that will provide legitimacy to it, ex post. The problem is that in case the state of exception is efficient, it might result in a tyranny where legitimacy questions matter the least. 37 See, for example the supermajority requirements in the South African Constitution, or the complicated process of the promulgation in Hungary and in Poland. tive priorities, where the weight of national security or public order will be increased. Given the current assumptions regarding the continued presence of international religious terrorism a counter-terror state presupposes a long term enabling. 3. Issues of Rights Restriction in the Counter-terror state There are compelling reasons for treating fundamental rights as having overriding nature, or in the famous wording of Dworkin: to treat fundamental rights (and only fundamental rights) as trumps. “Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.”38. This is not unconditional rights absolutism. From a utilitarian perspective rights are protected because in a legally structured world this is the most efficient form to enhance individual autonomy. Rights have strategic advantages. Alternatively, fundamental rights are part of individual autonomy. Autonomy means that the individual is in exclusive charge of (responsible for) his fate, or choices determining this identity. Rights embody the “‘moral fact that a person belongs to himself and not others nor to society as a whole.’” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S., at 777, n. 5.39 Fundamental rights (and only fundamental rights i.e. those that satisfy specific moral functions) are trumps, but this is not absoluteness in the sense that their use cannot go ‘wrong’. But what is ‘wrong’? Dworkin admits that even speech rights can be restricted to “protect the rights of others, or to prevent a catastrophe, or even to obtain a clear and major public benefit.”40 Upon reflection on the nature of lib38 Dworkin, op. cit. xii. In a very different Continental tradition, Jean Dabin took a very strong position arguing that rights are given (pertain) to individuals to serve these individuals and not to be the tools of specific social goals, which remain extremely vague Jean Dabin, Le droit subjectif, pp289 et seq. 39 This was stated in regard to the right to privacy when Stevens, J., (concurring) quoted Charles Fried’s formulation, Correspondence, 6 Phil. & Pub. Affairs 288-289 (1977). 40 Ibid. at 191. Notwithstanding this apparently easy going position, Dworkin is well known for not accepting standard claims of major public benefits. Like other Kant inspired rights theorists (Nozick, Charles Fried) the real end to the rights based regime is a catastrophe. Some leading contemporary rights theorists seem to be even more permissive when it comes to rights restriction: Instead of rights absolutism Alexy talks about “a general prima facie priority in favour of individual rights”; “there [must] be stronger grounds in favour of... [a] resolution required by collective goods than exist for that required by individual rights”. The “[p]rima facie priority [of rights] does not exclude the setting aside of individual rights” in favor of other interests with stronger grounds.” Robert Alexy, Individual Rights and Collective Goods, in (Carlos Niño ed., 1992) Rights at 163, 178-79. 71 András Sajó erties, one finds the justification for preventive action against the abuse of such rights. Dworkin seems to accept a definitional restriction of fundamental rights, where the specific use is outside the ‘proper’ definition of the fundamental right. It might be that the initial recognition of a right is not to be applied in the specific case. This happens if it is shown that the values protected by the original right are not really at stake in the marginal case or “if the right were so defined, then the cost to society would not be simply incremental, but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity or equality might be involved.”41 Arguably this might be the case with the ticking suicide bomber or where there is a high probability of repeated mass terrorism: the disregard of procedural rights in the temporary incapacitation of suspects and even of ‘suspect categories’, e.g. of all passengers of a flight is occurring where the consequences of the terror act do not impose only an incremental increase of the costs of right to society. It should be noted that rule of law and rights based considerations as they exist are presented in an absolutist way (indeed this is the source of the success of human rights: it precludes any discussion that would question its absolute validity). Such absolutism served well in many circumstances. However, it remains a form of thinking that precludes adaptation to new circumstances. Rights absolutism is certainly causing problems (which are overcome within militant democracy, which admits relativism of rights, but it operates only if specific preconditions are met: without it the exceptionalism does not apply. The German techniques on the defensive/preventive control of the abuse of freedom of assembly offer a good illustration. A law that was modelled on the language of the German restrictions was introduced in Poland. The Polish Constitutional Tribunal ruled that the Assemblies and Road Traffic Amendment Act of 2004 is unconstitutional because it violates the rule of law.42 Only the dissent recognized that the new conditions of social communication demand a new look at the right of assembly. The inhibitions that surround fundamental rights inhibit the genuine re-evaluation of the functions and values served by these rights, and the liberal panic43 that Dworkin, op. cit. at 200. See Judgment of 10th November, 2004, Kp 1/04. Like in Germany two decades ago, there were violent assemblies in Poland, especially peasant demonstrations regarding agricultural policies. See Judgment of 10th November, 2004, Kp 1/04. 43 Adrian Vermeuleargues that security panics, which results in assumptions of mistakenly high risk is countered by panic among liberals who 41 42 72 is generated by the security panic does not help to overcome inhibitions, especially inhibitions which have a pedigree and reputation of being historically correct. The call for such re-evaluation should not be understood as a call to disregard the inherent dangers that emerge once one allows the court or the legislator to evaluate of the use of the right remains within its “original function”. A functionalist analysis or conditionality may destroy the force of rights by opening up right to judicial or legislative discretion. Given the above considerations there are no principled objections about radical rights restrictions in favour of public security among conditions of a catastrophe. This is not, however, a carte blanche for a Counter-terror state, where catastrophe is only a matter of speculation. First, the presence, the proximity of a catastrophe remains highly contested, and given that the finding of a catastrophe is a self-fulfilling prophecy law should prevent the occurrence of self-fulfilling prophecies that are based on panic. Secondly, as the following table indicates, the scope of rights restrictions differs in different rights restriction regimes (see table 1). It should be noted that there are obvious differences in terms of rights restrictions between the two regimes. Further, the Counter-terror state moves towards a regime where the rule of law is barely applicable to non-citizens. This element is not characteristic in the prevention state. Given these differences, the considerations that enabled the incorporation of militant democracy and of the preventive state as we know into the prevailing paradigm of constitutionalism are not fully present once militant democracy and preventive state measures are combined in the Counter-terror state. The Counter-terror state will be operative under perhaps qualitatively different assumptions, once international terrorism becomes a mass phenomena and a matter of daily life. Under such circumstances restrictive measures that seem rational for the maintenance of public safety will result in massive regulatory restriction of liberties. These rational measures may include relocation, ownership restrictions, disregard of privacy, expedited expulsion, restrictions on citizenship, and the institutionalization of expedited administrative measures without judicial control that is considered to cumbersome. Prohibitions on all sorts of assembly, because all mass gatherings claim that there is an excessive risk to fundamental rights resulting from panic dictated restrictive measures on civil liberties. See Adrian Vermeule, Libertarian Panics, U of Chicago, Public Law Working Paper No. 83. 2005. From Militant Democracy to the Preventive State? Table 1 Rights restrictions in the regime of Fundamental right or institution Militant Democracy Counter-terror state Freedom of movement No For some Extraditing No yes* Free speech Yes yes** Free exercise of religion No*** Yes Freedom of association Yes yes**** Freedom of assembly Yes No Surveillance (secret) Yes, but limited Far reaching, Administrative***** Denial of due process No Yes****** Detention without judicial control Yes, in some systems Yes******* Burden of proof, hearsay, special trust in government evidence No Reversed Immigration No Yes Torture No At least facilitation through rendition of non-citizens******** Access to information No Yes Who declares? Parliament, or Political branches jointly; Judicial control; Limited in time General legislative authorization, triggered by events, case by case handling by the executive * See also the European arrest warrant that was not specifically designed for the fight against terrorism. See further the possibility of extraditing foreign citizens to non-safe countries (where torture or punishment for political views is to be expected). ** Even within the existing paradigm of free speech (clear and present danger) one can envision a return to the interpretation of the test that was offered in Dennis that is mere advocacy or apology of terrorism will be criminalized. *** In countries like Turkey where anti-secular forces represent not only a danger to democracy but also to security, restrictions apply. **** For example the German Act on Associations (Vereinsgesetz) enables the government to ban organizations that promote illegality of undermine the Constitution (this is different for the procedure regarding totalitarian parties foreseen in the German Basic Law). After 9/11 the Act was amended and the ‘religious privilege’ was repealed. In consequence at least half a dozen religious organizations were banned. Membership in the group is not criminalized so far. ***** Of course, in many countries the reflex of the judicial state continues to have effect. In Norway, for example, extended covert police surveillance requires judicial approval, but at a closed hearing with a security clear lawyer present. The law entered into force on 5 August 2005. The extension of surveillance may serve security concerns and therefore it is becoming accepted in democracies, and these might be sufficient for incapacitation (at enormous administrative costs) but the concerns of the judicial state do not offer mechanisms to take legal action against the alleged terrorists because surveillance based evidence is hardly admissible or the authorities are reluctant to disclose their sources or allow cross examination. Mullah Krekar’s case serves as a good illustration. Mullah Krekar, the admitted former head of Ansar Al-Islam, a UN listed terror group was granted asylum in Norway in 1991. In 2002 he returned to Iraq allegedly to continue his terrorist activities. Once got back to Norway his refugee status was revoked and was arrested several times with charges of terrorism but because there was no admissible evidence the charges were repeatedly dropped and extradition to Jordan was rejected because of concerns of possible torture in Jordan. The valid deportation order could not be executed because of rule of law concerns. On the other hand Sweden denied the asylum application of Ahmed Agiza who was returned to Egypt to serve his in absentia conviction for terrorism. The Swedish government got assurances that Swedish diplomats can visit regularly the terrorist to see that Egypt provides to its commitments. Nevertheless, UN Committee against Torture found Sweden to be in violation of the Convention against Torture. Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005). See further Chahal v. United Kingdom, Judgment of 15 November 1996, where the Court found a guarantee provided by the Indian government to be, of its own, insufficient protection against human rights violations. On extradition related problems see generally Human Rights Watch “Empty Promises:” Diplomatic Assurances No Safeguard against Torture.April 2004 Vol.16 No.4 (D) ****** In Hamdi v. Rumsfeld 124 S. Ct. 2633 (2004) it is noticeable that the Supreme court is ready to accept a lower standard of due process that applies in administrative procedure. ******* This seems to be the dividing line at the moment between the judicial state and the detention state. India had a number of systems with administrative detention (see above). ******** Even the Canadian Supreme Court agreed that in principle, depending of the outcome of balancing non-citizens might be extradited to countries where there is a serious risk of torture. Suresh v. Canada (Minister of Citizenship and Immigration) 2002. 73 András Sajó offer potential targets are also likely. Both efficiency considerations and the limited availability of judicial and other supervision serving resources indicate that under increased threat of terror there will be a movement away from the judicial state, perhaps towards a preventive regime.44 Even if judicial review survives in the Counter-terror state, at least pro forma, it will be a fully deferential rubberstamp operation as it happened at times of war, using risk assumptions exemplified in Dennis. A preventive regime with a (administrative) detention regime does not turn the Counter-terror state into a regime that satisfies principles of liberal constitutionalism, even if a country’s constitution envisions and legalizes such practices. Some forms of detention that were created in the past in democracies seem unacceptable by contemporary human rights standards.45 But ‘contemporary standards’ are subject to social-cultural change and the risk assumptions are certainly crucial in the shaping of that change. Detention regimes exist already in mature democracies, like India and Israel. It is debated how the existence of such regime undermined the democratic, and even more the liberal nature of these states, which seem to maintain democracy by allowing pockets of exceptionalism that are isolated from the rest of society. From time to time the judiciary attempted to bring under its control some elements of these enclaves of exceptionalism, but it is not clear how sustainable the effort is. Ironically the move towards a detention regime means the acceptance of the inheritance of colonialism: both in Israel and originally in India the British emergency ordinances were used for administrative detention, and France relies on measures inherited from the Algerian war. In the United States the executive relies on a World War II precedent regarding the use of in camera military courts. In Israel and in India there was a move towards applying the norms of the judicial state, in the sense of allowing stricter supervision of detention conditions by the judiciary46, 44 I am in no way advocating such measures, but assume that this is the most likely trend. 45 See the contemporary condemnation of the Japanese internment and its approval in Korematsu or the rejection of the position of the House of Lords’ position in Liversidge. 46 The judiciary in Germany is particularly adamant in regard of not giving up its supervisory role and so far there was little willingness to change its proportionality analysis in favor of the preponderance of security concerns. A Hamburg court overturned the conviction of Mounir Motassedeq of over 3,000 counts of accessory to murder. Applying the ordinary standards of a rule of law state the Hamburg court stated: “a conflict between the security interests of the executive and the rights to defense of the accused cannot be resolved to the disadvantage of the accused. .. [W]e cannot abandon the rule of law. That would be the beginning of a fatal development and ultimately a victory for the terrorists... The fight against 74 and in the US the Supreme Court did not rule out a similar role for the judiciary. Ironically, to the extent stable democracies (most of them former colonizers) reinvent detention regimes, they re-import the par excellence tool of oppression of the former colonial power. Unfortunately, in this regard the terrorists and those who sympathize with their success score a point, as they claimed that they fight against the infidels as colonizers, and now the colonizer is colonized because the means of oppression used by the colonizers is self-imposed upon the neo-colonialist successors. When the courts of mature democracies refuse to accept information obtained by the police in former colonies who continue to use police practices of the former colonizers, in an unconscious way they fight the dirty past of the former colonial power. It is a position triggers the standard reaction from lawenforcement officials, claiming that the high judicial standards are out of touch with reality; and at least the American, British, Italian and French executives push for a more rights intrusive legislative authorization of law enforcement and co-operation with the ‘less respectable’ foreign authorities.47 At the same terrorism cannot be a wild, unjust war.” Desmond Butler German Judges order a Retrial for 9/11 Figure N.Y. Times, March 5, 2004, at A1. However, the issue is not how just the ‘war’ is – it is just as self-defence can be: the issue is how effective it is with traditional rule of law means. “The German Constitutional Court handed down a judgment on July 18th 2005 declaring the German European Arrest Warrant Act unconstitutional… The Constitutional Court held that the Act … infringes the constitutionally protected freedom against extradition of Germans in a disproportionate manner and contrary to Article 19.4 of the Basic Law because it provided for no possibility of challenging the judicial decision granting extradition… The consequence of the judgment is that the extradition to Spain of suspected member of the Al Quaeda terror network of both German and Syrian nationalities was freed.” http://eulaw.typepad.com/eulawblog/2005/09/european_arrest.html (See, however, the Schleier abduction decision, where the Court was more ready to disregard fundamental rights and deferred to government policies in an actual terrorist threat situation). See further, for the UK A v. Secretary of State for the Home Department, [2004] UKHL 56, 2 W.L.R. 87. e.g. Lord Hoffmann’s position. However, the Polish Tribunal ruled that the European arrest warrant is constitutional for the time being, although the Polish Constitution unconditionally prohibits the extraditing of Polish citizens, and immediately after the decision Polish citizens were extradited. 47 At this point, once again the paradox of international counter-terrorism – and the only chance of success for a policy against international Islamist terrorism comes from international co-operation that incorporates co-operation with illiberal states that have a strong reputation of condoning terrorism. Notwithstanding some very strong judicial statements that would like to protect the borders of the national rule of law based legal system from the impurities of the ‘torture states’, the national governments have to integrate their counter-terror policies into an international program that seems to condone serious abuses of human rights at the level of actual practices. This inevitable acceptance of illiberal, hardly democratic regimes is troubling for a number of reasons. The position of countries like Algeria or Egypt is that without harsh measures and rights restrictions (which in the official version are way not that drastic as Western human rights NGOs claim) they could not prevent a fundamentalist take-over. This is clearly a militant democracy argument and as such quite acceptable, though crucial elements of Western militant democracy, like strong judicial oversight are hardly present. But the problem is more a chicken and egg problem. It is argued that the religious fundamentalists are a genuine threat exactly because the governments are oppressive, authoritarian and non-responsive (corrupt). Whatever the sequence is, and irrespective of the strength of the arguments made by the illiberal allies of the Western states, it is From Militant Democracy to the Preventive State? time such human rights based snobbery at their allies in counter-terrorism undermines the possibilities of a united front. Or, perhaps, the problem underlines the importance of having universal human rights, because without such fundamental agreement there can be no co-operation.48 Of course, detention (limited in time or unlimited until the general threat is deemed to persist) is just one component of the Counter-terror state. Gray is a color of a surprising number of shadows. Even in rule of law conscious judicial states like Germany “the police law doctrine of individual liability has slowly been abrogated in favor of new security laws which empower the police to control people without prior suspicion”.49 The current administrative and law enforcement attempts to move from criminal justice to preventive justice were countered in many democracies by judicial review, although the extension of the preventive state through legislation is going ahead without strong judicial resistance and even where judicial opposition exists this is based on doctrines of proportionality50. The standard of comparison for proportionality easily varies, especially in face of non-quantifiable threats. Further, as mentioned above, because preventive measures are not classified as ‘punishments’, in the preventive state the judiciary either will diminish its standards of control or simply will not be involved. It is hard to strike a balance at the moment, and in a number of Western democracies the judicial positions shifted to some extent back to the pre-existing stance of the judicial state (that is primacy of the juclear that perhaps in the majority of Islamist states there is considerable support for fundamentalist political Islam and that support may provide logistic support to international terrorism. However, the mistrust of Western judiciaries and other institutions in the institutions of non-democratic states might be justified in pragmatic terms as the use of torture, the duplicity of paid agents, and the possibly high level of penetration into the Islamic state by fundamentalists, or even the actual complicity of state agencies and fundamentalists in some countries makes the information coming from the allies unreliable at best. Moreover, it is in the interest of these non-democratic regimes to call all the political movements that are critical of the oppressive regime as terrorists of as fundamentalists. It is often contentious in rendition, asylum denial and extradition cases to what extent the person is only pictured as terrorist by the national authorities of Third World countries, though he is only a dissident or just someone who got into personal conflict with local police that is systematically abusing its powers. This reluctance of the judiciary and some other public institutions to rely on information coming from ‘torture states’ is further increased by the institutional (organizational) interests of Western executive bodies and law enforcement in particular, to accept the information provided by their partner organizations operating in ‘torture states’. 48 Andras Sajo, Human Rights knowledge systems??? in Chris Eisgruber and Andras Sajo (eds.) 49 Oliver Lepsius,. #38. 50 In the context of preventive justice proportionality is the preferred approach even in the United States. See Austin v. United States, 509 U.S. 602, 622 (1993) (civil forfeiture has to proportionate). See Steiker, op. cit. 776. The only area where at least some judges use a categorical approach is torture. diciary). The highest echelon of the judiciary seems ready to assert control over the alleged dictates of counter-terror policies. It seems that the judiciary did not gave up its desire to steer the judicial state among the conditions of proliferating ever more far-reaching counter-terror measures. This means that they apply some form of balancing or proportionality, and at least in matters of alleged torture they refuse compromises. This attitude, however, brings up the conflict between constitutionalism and democracy, and the related normative question of who shall take the fundamental decisions on matters of societal risk-taking. In order to structure this problem that is crucial for the legitimacy of one or another constitutional arrangement that deals with international terrorism, one has to take into consideration the problem of social risk-taking (See Part IV., infra). Whatever role the judiciary assumes under the present circumstances, in case of mass terrorism the judicial state will not be able to sustain itself, and the judiciary will become deferential or simply it will not exercise any supervision, due to legislative changes. There will be an automatic shift first to emergency and then to the Counter-terror state. It is foreseeable that in a Counter-terror state there will be new policies on the possession and use of firearms, or interrogation, without any attempt of the law and the courts to curtail the policy choices. The creation of ‘special’ constitutional regimes has its inherent problems. The experience with militant democracy is not convincing as to its efficiency: and it was efficiency that dictated the introduction of such regime into liberal constitutions. The measures seem to be efficient but in the countries where militant democracy was institutionalized there were no serious threats to democracy originating from the emotional politics of totalitarian mass movements. It is also clear that where counter-terror state is applied, and where democracy is not robust, as in Russia or Pakistan, the counter-terror measures contributed to the erosion of democracy. It is perhaps accidental that in countries where the threat of terrorism is at the moment more serious (in terms of probability of occurrence) the need for stronger protection of constitutionalism through formalized, or constitutionalized solutions of a predetermined and limited counter-terror state is more needed. Most Western democracies, which were so far less exposed are in the enviable position of safety that enables them to maintain most of their high standards without specific efforts. Paradoxically 75 András Sajó it is in these countries that the likelihood of abusing emergency for the sake of departure from democracy and human rights is lesser. It is more likely at the moment that in ‘mature’ democracies the abuse is not about perpetuating authoritarian regimes but reliance on emergency by incumbents to win elections in fair elections. It seems to me that the ‘business as usual’ attitude of certain Western European courts and other agencies sends the wrong message to other, less fortunate states fighting terrorism. The theoretical conclusion, namely that there are a variety of possible constitutional models to handle the probable threat of a terrorist disaster, has a strong pragmatic implication. The frontline countries51, which are ridden by daily terror, need special constitutional regimes to prevent the deterioration of the regime into permanent illiberalism. The message that the same inflexible human rights standards are to be applied that were so valiantly defended by certain European high courts may not send the right message. But one should not hasten to impose the judicially or democratically agreed upon limited restriction of fundamental rights. The judiciary, human rights activists, and principled politicians (even if motivated by hidden anti-Americanism is simply being in opposition) stand up for seasoned ideals that proved central to liberal constitutionalism. Even if these ideals seem to pose problems in a changed environment, even if ideals, as Lord Acton would put it, are neither entirely true, nor entirely feasible, it takes “one excess to correct another, an ideal to correct an evil.”52 It is certainly more attractive to share the principles of great liberal thinkers than the fears of secret services analysts. But one feels the presence of some Western hypocrisy and double standard here. Consider the countries where the threat seems to be contained, i.e. it is limited to a couple of smaller attacks with little likelihood that there will be much domestic reserve for additional terrorist attacks. The judiciary of most of this countries often condemns authorities in Third World countries where torture is practiced in the fight against (alleged) terrorism. These condemned countries are not genuine democracies but the fundamental difference is that the presence of, and popular support to, terrorism is sizeable. It is not clear that the democratic reaction of the great democracies would be fundamentally different from what is practiced in 51 Note that only a minority of terror attacks is committed against the ‘infidel’, and the real ‘battlefield’ is outside Europe. 52 Gertrude Himmelfarb, Lord Action. Routledge, London. 1952. 84. 76 certain Islamic states, at least it might be quite similar without proper constitutional and civic preparation in good times. At the same time the ‘torturer countries’ are expected to provide for the defense of the less affected Western democracies.53 In the interconnected world (that is already interconnected through mass migration and networks of interconnection) democracies and counter-terror quasi authoritarian regimes are interconnected too, and without the benefits of co-operation one cannot expect risk reduction. But this brings up the issue, to what extent this unseemly international coalition of different states can work together with different sets of norms, how one can have a system where ‘torture’ states and judicial states have to fight terror together. Is the judicial state that snobs the ‘information’ coming from ‘torture’ states is living in hypocrisy or self-denial? 4. Constitutional risk aversion in the Counter-terror state The religious fanaticism of fundamentalist terrorism challenges fundamental assumptions of enlightenment that serve as the foundation of liberal constitutional order, namely that human beings act in self-respect. Further, it challenges the state monopoly over terror, a foundational characteristics of modernity. Constitutional democracy limits (and disguises) state monopoly over constraint and violence, which is the ultimate underlying foundational element of political organization. A monopoly of violence is still violence. The constitutional arrangement that limits and legitimises the monopoly over violence is successful because it offers basic social security. But the security of society that results from the monopolization of violence is ambivalent. The constitutional regime’s precondition is security that is needed for the political community. In this regard a constitutional regime is not different from despotism, hence there remains a certain affinity in the most constitutional democracy to its despotic antinomy when it comes to the safeguards of the existence of the political regime. Montesquieu, describing despotism, has some prophetic words on the ambiguity of the security preconditions of all state power. All forms of political government need tranquillity but where there is tranquillity there will be the silence “of those towns which the enemy is ready to invade”.54 A window of 53 See the problem of admissibility of evidence provided by police and secret services operating in ‘torturer’ states, including states that have nasty standards of police interrogation that differ from what is found civilized in the West. 54 La conservation de l’État n’est que la conservation du prince, ou plutôt du palais où il est enfermé. Tout ce qui ne menace pas directement ce pal- From Militant Democracy to the Preventive State? a radically militant democracy opens exactly on such towns and the same might be the result of a protracted war on terror. Whichever form the counter-terror state will take partly depends upon the dictates of the terrorists. Nevertheless the form of this new constitutional conglomerate still remains a matter of more or less democratic self-definition, although the anxiety of the public regarding public safety may play an increasing role in such self-definition. The most natural characteristics of a political community is self-defence. Self-defence incorporates the maintenance of public order. The protection of public order entails the risk that those in power will use public order protection as a pretext for the preservation of their personal power. This is clearly an abuse of self-preservation. A constitutional state’s selfdefence raises peculiar problems even beyond the above-mentioned abusive self-preservation. One of these problems is that in certain genuine emergency situations the danger to the public order and public good requires departures from established rules and requires the use of discretionary power. Already Montesquieu identified such situations (“if the legislative power believed itself endangered by some secret conspiracy against the state”55), allowing here a temporary disregard of separation of powers. ais ou la ville capitale ne fait point d’impression sur des esprits ignorants, orgueilleux et prévenus; et, quant à l’enchaînement des événements, ils ne peuvent le suivre, le prévoir, y penser même. La politique, ses ressorts et ses lois y doivent être très bornées; et le gouvernement politique y est aussi simple que le gouvernement civil. Tout se réduit à concilier le gouvernement politique et civil avec le gouvernement domestique, les officiers de l’État avec ceux du sérail. Un pareil État sera dans la meilleure situation, lorsqu’il pourra se regarder comme seul dans le monde; qu’il sera environné de déserts, et séparé des peuples qu’il appel­lera barbares. Ne pouvant compter sur la milice, il sera bon qu’il détruise une partie de lui-même. Comme le principe du gouvernement despotique est la crainte, le but en est la tranquillité; mais ce n’est point une paix, c’est le silence de ces villes que l’ennemi est près d’occuper. » C.-L. de S. Montesquieu De L’ Esprit des Lois. Livre V. Ch. XIV Here is my ‘democratic’ version of Montesquieu’s vision (changes are in italics: The preservation of the state is only the preservation of the citizen, or rather of the palace where he is confined. Whatever does not directly menace this palace or the capital makes no impression on ignorant, proud, and prejudiced minds; and as for the concatenation of events, they are unable to trace, to foresee, or even to conceive it. … Such a state is happiest when it can look upon itself as the only one in the world, when it is environed with deserts, and separated from those people whom the state will call Barbarians. Since it cannot depend on the militia, it is proper it should destroy a part of itself, namely those who are suspect of being different and therefore emissaries of the Barbarians… As security is the principle of democracy, its end is tranquillity; but this tranquillity cannot be called a peace: no, it is only the silence of those towns, which the enemy is ready to invade. Since strength does not lie in the people, but in the secret services that animate it, in order to defend the state secrecy and surveillance must be preserved... 55 C.-L. de S. Montesquieu, The Spirit of the Laws, (A. Cohler, B. Miller, & H. Stone, (eds. & trans.)), Book 11, 159 (1989). The conspiracy would entitle the executive to make arrests. Democracy in its less self-confident, and therefore potentially more militant and prevention oriented versions (i.e., when it is concerned with its own preservation) is risk averse, at least selectively. (This paper only deals with democracies concerned with self-preservation and hereinafter ‘democracy’ stands as a shorthand for this type of democracy only.) Risk aversion is troubling in a constitutional democracy that stands for liberty. Risk-taking is required for liberty, at least according to Justice Brandeis, who gave the following justification for not limiting freedom of speech: Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail against the arbitrary. [.…]They believed […] courage to be the secret of liberty […and] that the greatest menace to freedom is an inert people.56 Further, he referred to the negative consequences of preventive oppression: “fear breeds repression […], repression breeds hate.”57 The remark points to an inherent problem of militant democracy resulting from risk aversion: where hatred is already widespread in society, the government has less to lose in the application of repression. Therefore there will be a greater likelihood that restrictive means will be abused and that such abuse will meet lesser resistance from otherwise freedom- loving citizens. Along these lines of risk-taking for liberty, Brandeis (referring to speech) suggested that the seriousness of the evil, the probability of occurrence, and the reasonableness of the assumption regarding the probability are to be taken into account. Following Justice Holmes, he insisted that in the speech context immediacy (of harm, evil) is the applicable test. Immediacy cannot be translated directly into probability, though immediacy increases probability. Immediacy refers to the temporal and spatial vicinity of acting in an evil way. As mentioned above, if a society operates under the assumption of risk aversion in matters of political action, it follows that the above reasoning is not attractive. The inclination to social risk aversion increases where specific historical experiences and reasons dictate precaution. Here even low probabilities of occurrence of an anti-democratic u-turn are impermis- 56 Whitney v. California, 274 US 357 at 375 (1927). For a similar attitude in the war on terror context see Justice Stevens, dissenting: „For this Nation is to remain true to the ideals symbolised by its flag, it must not wield to the tools of tyrants even to resist an assault by the forces of tyranny.” . Rumsfeld v. Padilla No. 03-1027. Argued April 28, 2004--Decided June 28, 2004. 57 Id. 77 András Sajó sible, or at least a matter of precautionary restriction. This assumption resulted in the advocacy for militant democracy, and it if such dictates prevail in a world of terrorist induced disaster scenarios. The risk evaluations of a disaster-aware regime system differ from that in a ‘normal’ or ‘pre-terror’ liberal state. The risk assumptions are illustrated in Dennis that was decided at the height of the Cold War were the Justices of the Supreme Court, like many ordinary Americans where of the opinion that in regard to Communist advocacy of revolution “we cannot bind the Government to wait” until an attempt to act is imminent.58 Concepts of imminence vary, and in the atmosphere of the ‘war on terror’ it might change back with more reason than it was found acceptable during the days of KGB inspired communist conspiracies.59 Certain constitutional systems are based on the assumption that risk-taking is impermissibly careless; if liberty is risk taking, than this is irrational and unacceptable, in light of historical experiences or realities. (Of course, the whole debate about terrorism is major attempt to construe a narrative with normative force regarding the ‘reality’ that exists).60 In light of the prevailing liberal understanding of freedom of expression, the dissemination of (even offensive) views does not threaten democracy per se or the constitutional state to a degree to which it would be proportionally justified to criminalize such views. A political system is simply not a democracy if there are views 58 “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected…. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. … The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger.” 341 U.S. 494, at 509-511. 59 The Australian Supreme Court had even stronger assumptions of risk in the decision banning the Communist Party. 60 The German Constitutional Court, for example, found constitutional the decision of the Bavarian authorities to prohibit the well-known Holocaustrevisionist historian David Irving from speaking in a demonstration, as it seemed likely his remarks would amount to a crime. The demonstration itself was not prohibited.Decision of 13 April 1994, 90 BVerfGE, 241-255 (‘Auschwitz hoax’). 78 that cannot be represented for political reasons. But what about the systematic preparation of mindsets that seems to bread (in a very small percentage of the audience) readiness to commit terrorist acts, one that makes banal the value of human life, including one’s own? Under the present circumstances, I would consider legislation that curtails free speech in order to prevent brainwashing impermissible for in a liberal system, and unnecessary for a counter-terror state. It is quite another issue if organizations, especially parties and religious entities, are used as a framework for expressions that in and of themselves are not criminal. The destabilizing effect of a demonstration and the mobilizing effect of (irrational and gravely violent) public speech may threaten democracy, or at least public order. The appearance of the above-described ‘prohibited’ topics in propaganda might call for restriction (although not necessarily criminal restriction). According to the principle of proportionality, these forms of extremist speech may indeed entail restriction. Outlawing of events, the restriction of the operation of parties and churches, and, if necessary, their dissolution (with the burden of proof on the authorities, in each specific instances) including the prohibition of religious propaganda might also satisfy a proportionality test under a heightened terrorist threat. At the moment, however, these considerations are not much present in the public discussion. Are the assumptions of social risk aversion that would justify rights restrictions envisioned in the Counter-terror state themselves justified?61 Under which circumstances could one claim that such assumptions are reasonable? Risk can be evaluated in terms of reasonableness in a number of cases. A reasonable ground for such assumption of risk can be established in cases where the future event pertains to a class of events that have had a high observed (past) occurrence. Such events can be discussed in terms of statistical probabilities. Some events that need to be evaluated in the militant democracy or free speech context do not show these characteristics (even if one does not accept that historical events are unique). In other words, in some instances there are no, or only few, cases where hate speech resulted in racial atrocities or cases where participation of anti-democratic 61 Contrary to the militant democracy scenario, where historical experience serves as a strong factor in the probability calculus and where the development of the disaster takes a long time with a number of opportunities to interfere, in the terror scenario history plays a different and minor role, while the disastrous events are developing with extreme speed after the operational action (the suicide mission) has been started, and it is nearly impossible to intervene at that stage. From Militant Democracy to the Preventive State? forces at free elections resulted in an irreversibly anti-democratic regime. In circumstances where events do not constitute a mass phenomenon, public attitudes to risk and risk-taking might replace risk analysis based on the use of data. (However, single events are very often treated as fate in everyday thinking.) In situations where there is no basis to evaluate probabilities, risk-taking is of a special nature: it absorbs assumptions about risk (probability). In these cases risk-taking or risk aversion implies that the decisionmaker accepts/rejects all probabilities of occurrence. This might seem unreasonable, as it is not based on occurrence-related analysis. However, this approach to risk as an attitude is functional in the decision-making process, as it helps to come up with solutions in situations where information is scarce or too costly. Even where there are data (which presupposes a significant number of events as well as costly data collection), there is still a matter left for risk-taking as an attitude, as there is no benchmark regarding proper behaviour under conditions of known (identifiable) risks. To complicate matters, when it comes to disasters that undermine the state or its democratic structure the probability calculation and the related-consequences calculation become particularly difficult, not only because the events are too scarce for statistical (probabilistic) analysis, but because events are not insular. The simple model of probability is based on the assumption that occurrences are isolated. The related assumption of insularity works this way: repeated abuse of speech results in a deterioration of the communicative sphere, but it remains unrelated to electoral results and vice versa. The specific problem of the constitutionality of the counter-terror state emerges in a context where relations are causal and interrelated. One event increases the likelihood of a different second one that disproportionately increases the likelihood of an evil consequence. Hence the often-noticed cascade phenomenon in the collapse of law and order and democracy.62 Most liberal democracies are ready to take risks when it comes to speech. When it comes to terrorism supporting movements, or clandestine networks, the assumption might be different. Contrary to the relatively isolated speech situation, in the case of religious movements one can easily assume that action/speech within the movement context has a multiplying effect: that it will result in an organized way in additional action/speech, causing multiplied risk. Speech and action that by definition are likely to result in mass action significantly increase the likelihood of evil. The implications for rights restrictions and discrimination of the different risk-assumptions were mentioned above. Currently there is some judicial resistance to the shift to more risk aversion that is going on through the channels of ordinary politics, executive and law-enforcement practices and legislation. The political process is not yet fully at the level of constitutionalisation of a counter-terror regime, in the sense of pushing for fundamental formal changes in the text of the constitution, which might change the role of the judiciary in the definition of permissible rights restrictions. At the moment many courts continue to claim that they protect fundamental rights. In a society that faces the threat of large scale terrorist attacks judicial mistakes in favor of the rule of law and liberty will result in considerable increase in the likelihood of terror acts.63 It may sound somewhat demagogic, but the judges are quite probably better sheltered than the general public or the public of another country that will be the target of the next terror act in case of a mistaken grant of asylum. The directly concerned public has limited opportunities to express its concerns and desires regarding public safety, and even if they do so through their politicians, the judiciary is there to veto these decisions in the name of constitutional imperatives. Cass Sunstein has argued that in case of high risk situation, in regard to the mistakes the public makes in panic or under conditions of uncertainty one should rely on expert decisions.64 This points towards executive decision-making though it does not rule out some judicial control, as long as this is increasing the reliability of expert riskhandling. Sunstein claims that ordinary citizens as humans are irrational risk evaluators, partly because of affect that determines risk perception. Scientifically trained experts are less vulnerable to cognitive defects originating in emotional distortions. It thus makes sense to transfer decision-making in these areas to experts insulated from political processes. The opposite view was recently presented by Dan Kahan and co-authors. They point to the enormous discrep- 62 The rule of law might collapse as a result of a cascade process where one democracy-protective restriction triggers a second one and their combined effect puts the rule of law in jeopardy. Suspension of habeas corpus becomes particularly problematic when conditions of detention are placed beyond the control of law. 63 The reality is somewhat more complicated. People who are acquitted for reasons of non-admissibility of evidence quite often continue to remain in preliminary detention on other grounds, or certainly remain under close surveillance. 64 Cass Sunstein, Laws of Fear. Cambridge University Press. 2005. 79 András Sajó ancies among experts in matters of risk perception. Increased government regulation that bypasses the democratic process shows shortcomings that are not that different from public democratic judgment. In particular, Dan Kahan and colleagues argue that the disagreements between lay and expert perceptions of risk are grounded on different value choices. These value choices are emotionally grounded, but emotions and values cluster in society, as they are culturally shaped. The Dan Kahan approach is based on the assumption that “culture is cognitively prior to facts in the sense that cultural values shape what individuals believe the consequences of such policies to be.”65 Constitutionalism is a device to fight the tendency of men to link the probability of a particular event taking place with their ability to imagine similar events taking place (availability heuristics) that seems to become pervasive in the context of terrorist threat. While in ordinary circumstances judicial policymaking can be justified on grounds that the rights protection provided by the courts serves all citizens, the case is different where alleged terrorists are acquitted on grounds of ordinary due process standards (like the wiretap evidence was collected before such data were statutorily made admissible), and in case the judiciary vetoes the laws that are enacted to protect security. These decisions, which were taken on principled grounds impose a risk to the community that is greater than the risk in ‘ordinary cases’ where on similar procedural grounds a murderer is acquitted. However, constitutionalism is an institution that is deliberately created to disregard utilitarian calculations, at least to some extent. The recurrent question is, is the threat of international terrorism one that goes beyond the conditions that serve as prerequisites to constitutionalism. The answer is that we don’t know, and we don’t know partly because, contrary to the assumptions of constitutional democracy, we are not provided with sufficient information under the pretext that this will endanger security and leads to unnecessary panic. 5. Concluding Remarks The constitutional state’s self-defence builds its regime of legal protection on the presumption of being endangered. It views some phenomena, behaviour, and the operation of certain groups with scepticism and suspicion. In this regard, democracy’s stance, if 65 Kahan, D. et. al.: Fear and Democracy or Fear of Democracy? A Cultural Evaluation of Sunstein on Risk, Yale Law School Public Law Working Paper No. 100. (2005), 17-18 80 not dictated by fear, should at least be precautionary. As a legal and technical result of precaution, the presuppositions about the liberty to act might be reversed. The intellectual limit of this is the presumption of innocence in criminal procedures. Unfortunately, as the preventive state model indicates, the boundaries of crime are easily shifted. Another boundary is that, although the presumption of the ‘abuse of liberty’ does not have to be questioned all the time, the impact of this presumption upon those who do not abuse liberty must be subject to scrutiny at all times. In principle there exist techniques for the protection of the state’s constitutional (democratic, liberal) order that, again in principle, do not eliminate the values to be protected. The applicability of these techniques depends partly on the historical circumstances, and it is likely that a certain level of stress, the presence of likely disasters makes the application of these more benign measures counterproductive. I conclude that liberty is about higher risk-taking. In a way, constitutions constitutionalize risk-taking against a prevalent human risk aversion. Such constitutional choice might be laudable for liberals (as it meets their preferences), but it does not solve the problem of reasonableness. Traditional constitutional structures represent a certain implicit risk assumption and the social (legislative) risk analysis takes place within that parameter. Constitutions implicitly dictate specific assumptions about risks, which influence the risk analysis itself. But constitutional-political risk analysis and its constitutionally mandated (and changing) evaluation are not conclusive: the solutions that are dictated by considerations of risk handling are fundamentally influenced by assumptions about social costs, and the result of cost analysis and acceptance of costs. Security is expensive in the simplest terms of money (see the increased spending on security services and the costs imposed on travellers, in the form of loosing time and paying higher airport taxes). From the constitutional perspective, and from a democratic legitimacy perspective too, rights restrictions and rights violations represent social costs, which may rule out certain options of rights restrictions. To take drastic measures against Muslim religious communities is extremely costly both in terms of enforcement and in regard of the counter-productive nature of such measures resulting form the resistance and alienation generated in the Muslim community. The legal boundaries of the democratic political regime must be set in such a way as to reckon correctly From Militant Democracy to the Preventive State? with abuses of liberties. The proportionality analysis that was developed in the judicial state for the needs of the normalcy, requires that the selected technique is the least restrictive of rights. All this is easier said than done. The principle might apply even in the Counter-terror state but who determines what is the level of necessary restriction? The theoretical justification of a Counter-terror State has to face the problems of the practical application of the powers granted to specific government agencies, with all the related slippery slope and abuse problems. (The nature and sources of such abuse are to be studied in order to have efficient prevention. The abuse is often simply the result of lack of sufficient knowledge or self-deception that emerges in hast, where uncertainty cannot be admitted by decision-makers.) I am well aware that the measures of the constitutional state’s preventive self-protection that are introduced in response of the possibility of disaster differ from the solutions that are generally used and accepted in a constitutional state, under ordinary circumstances. As such, restrictions may be capable of undermining the constitutional state itself, the very value to be protected. There has been a certain erosion of the constitutional state in the name of effectively protecting order and, more recently, fighting terrorism. However, it is better to prepare oneself to hardship when there is time for reason-guided reflection and not to wait until the pressures of hardship dictate hasty decisions. All these indicate that it is a) hard to avoid a departure from ‘constitutionalism as usual’ in the fight against international terrorism; b) that it is better to constitutionally authorize such departure with setting levels of departure, where the greater the departure the stronger the judicial or other control by external bodies shall be; however, such control might be exercised ex post under the constitution. At least the example of militant democracy indicates that a clearly constitutionalized regime of exceptions makes the constitutional system sustainable. However, the magnitude of restrictions in a Counter-terror state differs from that in a militant democracy while the uncertainty regarding the probability of occurrence is greater and, at least in the operative stage of counter-terror action it is less prone to public discussion. To the extent the Counter-terror state moves into a constitutionally recognised preventive state this is not without problems. It should be added that a move towards the preventive state is problematic also because of its impacts outside terrorism: it reinforces the trends of the last decades to move away the techniques that animated the departure from classic constitutionalized criminal law that was based on the assumption that social condemnation that reaches the level of liberty deprivation66 requires special judicial guarantees. It is also problematic, at least from a traditional perspective of constitutional law, that crime prevention, or, better said, risk prevention (through all encompassing or suspiciously selective surveillance and penetration) centered, instead of being liberty centered. Already before 9/11 in Germany, a paradigmatic judicial state, security became a constitutional value, an ‘objective interest’ even in the absence of armed attack.67 Once security becomes the factual basis of a judicial decision, the judicial control becomes quite formal and the judicial state survives in form only. “Security purposes are no longer subject of normative justifications based on the constitution, rather they enter into the weighing process as self evident fact; this no longer allows for the common constitutional “balancing-principles” to function. Facts cannot be balanced. Constitutional control in a legal sense has to transform itself into a political control, since the relevant criteria are no longer based on the supremacy of law but on factual conditions.”68 The Counter-terror state operates as a preventive state. This means that assumptions of high risk presence will prevail in most spheres of life: the feeling of threat becomes pervasive (in accordance with the plan of the terrorists). Once the assumption of danger will become the standard one has to prove that there is no danger in case she has a liberty claim.69 This is clearly the opposite of the assumptions of ordered liberty. Of course, the protection of democracy is primarily a social and political question.70 Legal measures are unsuccessful without governmental policies protecting democracy. As mentioned above, international terrorism may result in a situation where one has to rethink the applicability of fundamental rights. Most 66 A certain ambiguity was part of liberal law when it came to preliminary detention that was seen as measure, a regulation that is subject to less demanding standards and not punishment, though it is very often much worse than punishment and has much less factual basis. 67 100 BVerfGE 313 (1999), at 382. (covert electronic surveillance system in regard to international organized crime is upheld). 68 Lepsius, op. cit. #56. 69 Denninger, op. cit. 471. 70 A constitutional state capable of self-defence must be determined enough to provide the material resources that guarantee the independence of the judiciary. But even the most independent and powerful administration of justice will not be able to defend democracy and preserve it as a constitutional state if it is devoid of the constitutional spirit, that is, if those employed in the courts are not determined and active supporters of the constitutional state. 81 András Sajó forms of principled reasoning about rights do not exclude such reconsideration. Fundamental rights are only temporary and partial absolutes that preclude the discussion regarding the consequences of a rights based regime. One should not rule out that continued, mass scale terrorist threat will impose on us a regime where rights play a much more limited role than today, and yet this will be a form of liberal democracy – the best under the circumstances. But this will be the best liberal regime under those dreadful circumstances only if people have actually understood the reasonability of such restrictions, and where people’s reasonable assumptions dictate their reasonably restrictive choices. Public understanding is based on demonstrable need and shall not be replaced by panic stirred by election hungry politicians and accountability avoiding government. Such demonstration is particularly relevant because there are serious prudential considerations against the rights restrictions that seem to be dear to the proponents of an counter-terror regime. These are the same prudential considerations that animated the movement towards fundamental (natural, human) rights: without due process, or under torture false confessions mushroom; governmental agencies will become victims of organizational bias; restrictions on speech prevail over truth and innovation; restrictions on freedom of religion and ethnic or other indices in preventive operations create resentment and create new enemies to the state. There is no clear trade-off between rights restriction and security. Sometimes an increased amount of public spending might increase security in a way that does not require a considerable diminution of liberty. For example, with more expensive airport security devices it is likely that intrusive search can be eliminated. If there will be a need for a special constitutional regime of the counter-terror state, the first rule about such state should be that there is a duty to show that the necessity for the restriction actually exists. It is in this regard that the experience of militant democracy remains relevant. At the moment, in the name of expediency, most of the relevant information is not available to the public that is invited to participate in a deliberation that is dictated by fear of the unknown. The task, ceterum censeo, remains to determine narrowly the techniques of precautionary legality. Otherwise we run the risk of the state that is describe by Hegel: “Being suspected, therefore, takes the place, or has the significance and effect, of being guilty; and the ex82 ternal reaction against this reality that lies in bare inward intention, consists in the and barren destruction of this particular existent self, in whose case there is nothing else to take away but its mere existence.”71 The first requirement of a rational discourse that may democratically legitimize the paradigm shift of constitutionalism towards a preventive-detentionist, or even a counter-terror security state is that people have to realize that contrary to the criminal law model of counter-terrorism where the talk is about changes in a special area of criminal law, the counter-terror dictated measures are not neatly directed against the source of terror, but effect the whole community. For example, the Patriot Act authorizes access to private records of “innocent Americans” without having to demonstrate a connection between the records and a suspected foreign terrorist or terrorist organization. In the strong version of the Counter-terror state prevention requires to consider all citizens and non-citizens as risk factors, though not equally so. A distinction in the application of restrictive measures among social groups in relation to religion or ethnic origin raises fundamental issues of discrimination. Is a relatively mild religion based discrimination, e.g. in frisk and search, rational and is it compellingly so? The preventively restrictive measures may encompass all spheres of society, not just criminal law. The topic of public deliberation should be this: are we ready to accept an everyday life that operates as a sphere of crime prevention for all of us? After all, international terrorism is made possible exactly by the ordinary tools of modernity that are quintessential to our globalized life, like internet, unlimited travel and other means of instant interconnectedness. Restrictions to limit terrorists’ access to these forms of interaction mean that access for all users has to be curtailed (see storage of all telephone numbers called, the possibility of restricting the sixty some billion prepaid credit cards business because these cards are ideal for money laundering, etc.) In the public debate fundamental issues of citizenship and bounds of humanity that unite mankind in the shadow of disaster should figure prominently: is society ready to give up its equality based togetherness, or citizenship implies that the whole society 71 Philosophy of Mind # 591. Baillieu translation. Hegel had in mind the French terror. The logic of the Jacobine terror described by Hegel as the consequence of the rule of a faction over other factions through the control of the state is the archetype of the danger a suspicion based regime represents to democracy. As the French example shows, the claims of the presence of conspirators in the society resulting in emergency was the perfect (partly fabricated) opportunity for the Jacobine leadership to get rid of their opponents and to generate public support or enough fear to acquiesce in the regime. From Militant Democracy to the Preventive State? should bear equal increased risk for not allowing racial, religious profiling, extradition etc? After all, this kind of solidarity is the basis of citizenship and nationhood. A nation prefers to go to war (according to this normative theory) in case the condition of piece is to extradite, expel etc., a certain person or group of people (or a piece of territory with people who don’t want to leave). At least this was the norm in ancient Greece. The function of constitutionalism, namely the protection of insular minorities creates very strong presumptions against the permissibility of such discriminatory preventive measures dictated allegedly by efficiency, because it is likely that public sentiment and prejudice, hand in hand with administrative complacency will go against whole groups of overwhelmingly innocent people who cannot protect themselves in the ordinary democratic process.72 Needless to say, once the restrictive measures seem to affect a well identifiable group of others, when the rights restriction can be presented as restrictions on others’ rights, these measures will be defined and accepted with little concern as to their harshness. But in case the terror attacks become a matter of daily routine, and for those countries where this is a daily reality already, if the people have to choose the dictates of fear, one more fundamental choice remains, and that will be the really hard moral choice. The terrorist denies the recognition of the victim as human being: and in a society that has to face mass terror (with daily suicide bombs and with the potential of mass disasters) all citizens are potentially denied minimal respect by the terrorists and their supporters. Under these circumstances it will be extremely difficult to consider the terrorist as a human being, a being with dignity like us. Of course, Kantian concerns (and pragmatic concerns related to the possibility of mistaking the identity of the terrorist73) dictate that one should never treat a human being as non-human. But Kant had in mind a very abstract moral being. Had he ever to consider the extreme difficulty no to degrade the person who by his own act has degraded humanity? 72 This opinion is voiced by many authors, quoted in Gross, op. cit. 1035 note 105. 73 It seems to be the case that terror prevention training is not particularly sensitive to problems of mistaken identity, hence mentally disordered citizens are likely targets of fatal preventive intervention. 83 Rory O’Connell MILITANT DEMOCRACY AND HUMAN RIGHTS PRINCIPLES Rory O’Connell Senior Lecturer, Human Rights Centre, School of Law, Queen’s University of Belfast. INTRODUCTION1 The European Court of Human Rights has occasionally made use of the language familiar from discussions of a “militant democracy” or a “democracy capable of defending itself” and scholars have used the term when discussing the Strasbourg jurisprudence.2 This paper suggests that it is more appropriate to concentrate on the requirements of a deliberative and participatory democratic society, rather than the theme of militant democracy. This paper examines the Strasbourg jurisprudence that may fall under this heading, and finishes by highlighting considerations the ECtHR should keep to the forefront when dealing with these cases. MILITANT DEMOCRACY The term “militant democracy” is undoubtedly a jarring one. The term was coined in English by a German philosopher, Karl Loewenstein, who was exiled from Germany during the 1930s and worked at Yale. As with other European academics, he turned his mind to the trauma of the 1930s, and the threats of fascism and Nazism. 3 In 1937, he discussed the possibility of “Militant” democracies to arm themselves against the rise of fascists, and specifically against the possibility that fascists I am grateful to colleagues in the Queens Human Rights Centre, students on the LLM module Human Rights and Governance, and the participants at the Utrecht Network Summer School held at Antwerp in July 2009 during academic year 2008-2009 for the opportunity to discuss these cases and issues. Responsibility for any faults is mine alone. 2 The key piece here is P. Harvey, “Militant democracy and the European Convention on Human Rights” (2004) 29 (3) European Law Review 407420. The Court itself has never used the term “militant democracy”, except when referring to the submissions of the Turkish Government during the Chamber decision in the Welfare Party case: Refah Paritisi v Turkey (2002) 35 EHRR 56 at paragraph 62. All ECHR case law is available at www.echr. coe.int 3 The contribution of the Frankfurt School to the struggle against Fascism has attracted considerable attention: William E. Scheuerman, Between the norm and the exception: the Frankfurt school and the rule of law (Cambridge, Mass.: MIT Press, 1994) and William E. Scheuerman, The rule of law under siege : selected essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996). 1 84 would use democratic rights of free association, free assembly, free expression and political rights in order to destroy democracy.4 Loewenstein’s militant democracies were an answer to Carl Schmitt’s critique of representative democracy: a militant democracy is not an interminable talking shop, 5 and it is capable of identifying the political enemy that it has to combat.6 That the enemies of democracy should not be allowed to use the rights and freedoms of democracy to undermine it might be seen as the lesson of the collapse of Weimar. The term Militant Democracy might cover a host of activities; this article considers the types of limitations on specifically political rights (voting, running for office, expression, association, etc) imposed on political parties and movements, or presumed adherent of such parties or movements, where it is alleged those parties, movements or individuals are using political rights to undermine democracy. After the Second World War, national and international legal orders paid attention to the Weimar lesson. The 1949 German Basic Law most clearly demonstrates this.7 The Federal Constitutional Court can order the forfeiture of rights if these are abused in order to undermine the “free democratic order” (Article 18). The German people have the right to resist anyone who seeks to destroy the constitutional order (Article 20(4)). The Federal Constitutional Court may order the dissolution of an unconstitutional party (Article 21(2)). The Basic Law declares certain fundamental principles Loewenstein, K. “Militant Democracy and Fundamental Rights,” (1937) 31 (3) American Political Science Review 417; Loewenstein, K. “Militant Democracy and Fundamental Rights, II” (1937) 31 (4) American Political Science Review 638-658; “Legislative Control of Political Extremism in European Democracies I” (1938) 38 Columbia Law Review 591. Other early advocates of militant democracy include another refugee from Nazism. Karl Mannheim warned that “the meaning of democratic tolerance is not to tolerate the intolerant”: Mannheim, Karl Diagnosis of our time (London,: K. Paul, Trench, Trubner & co., 1943), 49. See also Lerner, Max It is later than you think : the need for a militant democracy (New Brunswick, N.J.: Transaction Publishers, 1989, [1943]). Judge Zupančič credits Karl Popper with the basic insight of militant democracy in the Zdanoka case: Zdanoka v. Latvia App. (2006) 45 EHRR 17. 5 Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge: MIT Press, 1988, 1923). 6 Carl Schmitt, The Concept of the Political (New Jersey: Rutgers UP, 1976). 7 An official translation is available at <http://www.bundestag.de/interakt/ infomat/fremdsprachiges_material/downloads/ggEn_download.pdf> last accessed on 21 March 2009. 4 Militant Democracy and Human Rights Principles — federalism, and basic rights — to be unamendable (Article 79).8 In addition, to avoid a paralysis of political leadership, the Basic Law provides that the Bundestag can only vote no confidence in the German Chancellor if the Bundestag has elected a successor (Article 67). Finally, the Basic Law provides several provisions dealing with emergencies (Articles 80A, 91, 115A-L), including a logjam in the legislative process (Article 81). Though the German Basic Law is the most elaborate on this point, there are also relevant provisions in the Italian Constitution of 1947, which prohibits the reorganisation of the fascist party and provides for limiting the political rights of fascist leaders.9 These concerns were not absent from the drafters of the Universal Declaration of Human Rights. Article 29 (2) provides that rights may not be used to undermine the purposes of the United Nations, and even more forcefully Article 30 prohibits the abuse of rights: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. The Soviet delegates involved in the drafting of the Declaration wanted to go even further and make it clear that the rights of fascists could be limited.10 The European Convention on Human Rights, 1950, Article 17 provides for a similar abuse of rights doctrine: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The European Convention of course also allows for proportionate restrictions on rights when necessary in a democratic society (e.g. Articles 8(2), 10(2), 11(2)), and permits special derogations during a time of emergency when the life of the nation is in peril (Article 15). During the Cold War, several states took steps to limit the political rights of movements which chal8 G.J. Jacobsohn, “An unconstitutional constitution? A comparative perspective” (2006) 4 (3) International Journal of Constitutional Law 460; Rory O’Connell, “Guardians of the Constitution: Unconstitutional Constitutional Norms” (1999) 4 Journal of Civil Liberties 48-75. 9 Article 12 of the Transitional Provisions, available in Italian at <http:// www.quirinale.it/costituzione/costituzione.htm> last accessed on 22 March 2009. 10 Johannes Morsink, The Universal Declaration of Human Rights: origins, drafting and intent (Philadelphia: University of Pennsylvania Press, 2000) 23, 68-69. lenged the state’s constitutional order. The Federal Republic of Germany’s Constitutional Court banned the successor to the Nazi Party and the Communist Party,11 while Germany adopted laws regulating loyalty of public servants. During the Cold War, the European Court of Human Rights rejected challenges to these loyalty laws.12 The Australian Parliament sought to ban the Communist Party, a ban invalidated by the High Court of Australia on federalism grounds.13 The United States notoriously limited the freedom of communists.14 In one corner of the United Kingdom, special powers were used to ban “republican clubs”.15 The 1990s saw a resurgent interest in the theory of militant democracy, with the military coup in Algeria in 1992 prompting serious academic discussion of “intolerant democracies”.16 The Council of Europe’s Commission for Democracy through Law (Venice Commission) has seen fit to publish guidance on the sanction of party dissolution.17 EXAMPLES OF MILITANCY IN MODERN EUROPE The European Court of Human Rights has long had to deal with issues of militant democracy, whether it be in relation to the persistence of racist and fascist parties, Germany’s loyalty laws, or political violence in the UK and Ireland.18 The theme has become more urgent though in the last fifteen years. The collapse of the Iron Curtain, and the expansion of the Council of Europe to the East has given rise to many issues 11 Socialist Reich Party case [1952] BVerfGE 2, 1, found in Kommers, Constitutional Jurisprudence of the FRG; Communist Party case [1956] BverfGE 5, 85, found in Kommers, Constitutional Jurisprudence of the Federal Republic of Germany. 12 Compare Kosiek v. Germany (1986) 9 EHRR 328 with Vogt v. Germany (1996) 21 EHRR 205. See Harvey, “Militant democracy and the European Convention on Human Rights” (2004) 29 (3) European Law Review 407, 413-414. Conor Gearty notes that the change in the Strasbourg Court’s attitude coincided with the end of the Cold War: Conor Gearty, “Airy-Fairy: Human Rights and the End of Empire: Britain and the Genesis of the European Convention by A.W.B. Simpson.” (2001) 23 London Review of Books, available at <http://www.lrb.co.uk/v23/n23/gear01_.html> last accessed on 22 March 2009. 13 Australian Communist Party v. Commonwealth [1951] 83 Commonwealth Law Reports 1. David Dyzenhaus discusses this case as an example of a court relying on “common law constitutionalism”: David Dyzenhaus, “Constituting the Enemy: A response to Carl Schmitt” in A. Sajó (ed.) Militant Democracy (Utrecht: Eleven International Publishing, 2004). 14 Dennis v. U.S. 341 U.S. 494 (1951). 15 A ban upheld by the House of Lords in McEldowney v. Ford [1971] Appeal Cases 632, 16 Gregory Fox and Georg Nolte, “Intolerant Democracies” (1995) 36 Harvard International Law Journal 1, reprinted in Gregory Fox and Brad Roth, Democratic Governance and International Law (Cambridge: CUP, 2000). 17 European Commission for Democracy through Law, Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures (Strasbourg: Council of Europe Pub., 2000). 18 P. Harvey, “Militant democracy and the European Convention on Human Rights” (2004) 29 (3) European Law Review 407-420. 85 Rory O’Connell of transitional justice. The September 11th attacks underscored the threats posed by religious fundamentalism. The decision of Turkey to accept the possibility of individual petition to the Strasbourg Court was significant, given that country’s relatively frequent use of the power to dissolve political parties. A variety of different techniques of militant democracy have appeared in Strasbourg cases. Perhaps the most extreme have been the instances where a State has sought to remove from Parliament elected politicians once their party has been deemed unconstitutional.19 Political parties have also been dissolved,20 or have had their application to be registered refused.21 In lustration cases, individuals may be prohibited from running for public office, or holding a varying range of offices in the public sector, or even in parts of the private sector.22 Less drastic measures include restricting the free expression23 or free association rights24 of individuals, prohibiting the use of certain symbols,25 or denying public financing to parties.26 States may take steps to ensure the political neutrality and integrity of their public service. A number of different reasons are generally given for the use of militant democracy type measures;27 typically these include combating political violence; controlling racist and far-right parties; defending fundamental constitutional or human rights principles; securing the transition to democratic rule; or protecting the territorial integrity of the state. Other reasons may easily be imagined: some states may proscribe parties with an ethnic or religious focus,28 while one scholar has proposed the use of militant democracy in relation to parties whose internal structure is undemocratic.29 19 Sadak and others v. Turkey Applications Nos. 26149/95 to 26154/95, 25144/94, 27100/95 and 27101/95, 11 June 2002 (ECtHR). 20 Refah Paritisi (Welfare Party) v. Turkey (2003) 37 EHRR 1. 21 Partidul Comunistilor (Nepeceristi) v. Romania Application no. 46626/99, 5 February 2005 (ECtHR); Linkov v. Czech Republic Application no. 10504/03, 7 December 2006 (ECtHR). 22 Sidabras v. Lithuania (2006) 42 EHRR 6. 23 Brind v. United Kingdom (1994) 77 D&R 262. Issaacharoff gives the example of speech codes during elections in India: S. Issacharoff, “Fragile Democracies” (2007) 120 Harvard Law Review 1405, 1423. 24 Christian Democratic People’s Party v. Moldova (2006) 45 EHRR 13. 25 The Hungarian law prohibiting the wearing of “totalitarian” symbols was considered in Vajnaj v Hungary application no. 33629/06, 8 July 2008 (ECtHR). 26 Parti Nationaliste Basque v France Application no 71251/01, 7 June 2007 (ECtHR). Funding was denied to the French branch of the Basque Nationalist Party due to the fact it illegally received funds from abroad, i.e. the Spanish Basque party. 27 Issaacharoff discusses the threats posed by insurrectionary, separatist and anti-dmeocratic parties: S. Issacharoff, “Fragile Democracies” (2007) 120 Harvard Law Review 1405, 1433-1447. 28 M. Basedau, M. Bogaards, C. Hartmann and P. Niesen, “Ethnic Party Bans In Africa: A Research Agenda” (2007) 8 (6) German Law Journal 617-634. 29 Yigal Mersel, “The dissolution of political parties: The problem of internal democracy” (2006) 4 International Journal of Constitutional Law 84. See 86 The European Court of Human Rights has, on the whole, been exacting in its scrutiny of these measures. It has insisted that restrictions on rights satisfy the three part justification test of being for a legitimate purpose, prescribed by law and necessary in a democratic society. Nevertheless there have been occasions where the Court has upheld militant democracy type measures, sometimes with less than exacting scrutiny. POLITICAL VIOLENCE Political movements which engage in, advocate or are linked with political violence, are subject to restrictions in several European states. Both the UK and Ireland have imposed limitations on parties linked to paramilitary groups in Northern Ireland, limitations upheld both in domestic courts and in Strasbourg. In 2003, the Spanish Parliament passed a law on political parties in order to allow for the prohibition of Batasuna, a party associated with ETA violence. The Spanish Constitutional Tribunal upheld the validity of the law,30 while Batasuna was dissolved in 2003.31 Allegations that a political party advocated violence have figured frequently in the party dissolution cases from Turkey.32 The former Commission was generally accepting of state restrictions imposed on political parties due to their alleged involvement with political violence. The Commission rejected as inadmissible complaints relating to the laws in the UK and Ireland limiting the access of certain Northern Irish parties to the airwaves.33 It is not clear that the modern Court would follow the Commission on this today. The Court has recently stressed that there must be actual evidence of a commitment to violence before an organisation’s Convenalso E. Brems, “Freedom of Political Association and the Question of Party Closures” in Wojciech Sadurski (ed.) Political rights under stress in 21st century Europe (Oxford ; New York: Oxford University Press, 2006), 161. 30 Basque Regional Government challenge to the Law on Political Parties STC 48/2003, 12 March 2003; the decision is available in Spanish at <http://www.tribunalconstitucional.es/jurisprudencia/Stc2003/STC2003048.html> last accessed on 22 March 2009. 31 The Batasuna case is discussed in Ian Cram, “Constitutional responses to extremist political associations -ETA, Batasuna and democratic norms” (2008) 28 (1) Legal Studies- Society of Public Teachers of Law 68-95; Victor Ferreres Comella, “The New Regulation of Political Parties in Spain and the Decision to Outlaw Batasuna” in A. Sajó (ed.) Militant Democracy (Utrecht: Eleven International Publishing, 2004); L. Turano, “Spain: Banning political parties as a response to Basque terrorism” (2003) 1 (4) International Journal of Constitutional Law 730-740; K. A. Sawyer, “Rejection of Weimarian Politics or Betrayal of Democracy?: Spain’s Proscription of Batasuna Under the European Convention on Human Rights” (2003) 52 (6) American University Law Review 1531-1581. 32 This was one of the reasons offered in the Welfare Party case: Refah Paritisi (Welfare Party) v. Turkey (2003) 37 EHRR 1. 33 Purcell v. Ireland Application no. 15404/89, 16 April 1991 (ECmHR); Brind v. United Kingdom (1994) 77 D&R 262. Militant Democracy and Human Rights Principles tion rights might be limited; it is not enough that an organisation adopt a name likely to promote hostility,34 nor that it describe itself as “revolutionary”.35 The Court has criticised Turkey for punishing a journalist who published interviews with a member of an illegal organisation: this by itself, without evidence of incitement to violence or hatred was insufficient to justify restricting free expression.36 This rigour in examining state restrictions allegedly based on the need to protect national security and public order is welcome. However the Strasbourg court will accept limitations on political rights of parties associated with political violence. This is made clear in Herri Batasuna and Batasuna v Spain.37 By a 2002 law on political parties the Spanish Supreme Court ordered the dissolution of the two applicant parties because of their connections with the Basque separatist group ETA. The Spanish law only permitted dissolution if the party engaged in activities that were incompatible with democracy.38 The Constitutional Tribunal, in separate proceedings, emphasised this element of the Law, noting that this was not a “militant democracy” type law which proscribed certain aims.39 The political parties ultimately complained to the European Court of Human Rights. The Court found that there was an interference with Article 11.1 and proceeded to see if the measure could be justified under Article 11.2. The Court quickly concluded that the interference was prescribed by law and for a legitimate aim; the crucial question was whether the measure was necessary in a democratic society. The Court stressed the importance of pluralism, which requires protection of ideas that offend, shock or disturb.40 Interferences with Article 11 required strict justification and only in most serious circumstances should a party be dissolved.41 The Court reiterated the position that parties were free to pursue any aim, as long as the aim was compatible with de34 Association of Citizens Radko and Paunkovski v Former Yugoslav Republic of Macedonia Application no. 74651/01, 20 January 2009 (ECtHR). “Radko” was the pseudonym of Ivan Mihajlov, who, according to the Macedonian Constitutional Court, denied the existence of Macedonian ethnicity. 35 Tsonev v. Bulgaria (2008) 46 EHRR 8. However the Court has rejected challenge to a French law punishing persons for “condoning terrorism”: Leroy v France application no. 36109/03, 2 October 2008 (ECtHR). The applicant had published a cartoon based on the September 11th attacks on the Twin Towers with the caption “We have all dreamed of it … Hamas has done it”. The Court rejected the applicant’s view that he was merely engaging in satire to critique American imperialism (paragraphs 43-46). 36 Kanat and Bozan v Turkey no. 13799/04, 21 October 2008 (ECtHR) at paragraph 19. 37 Herri Batasuna v Spain application nos. 25803/04 and 25817/04, 30 June 2009. 38 Ibid at paragraph 12. 39 Paragraph 20. 40 Paragraph 76. 41 Paragraph 78. mocracy and the means used were legal and democratic.42 However the State must be able to act, and act before it is too late; such is compatible with the positive obligations inherent in the Convention.43 Having outlined these principles, the Court considered the specific case. It noted there were a large number of facts which indicated that the parties were encouraging a “climate of social confrontation” and were offering implicit support to ETA.44 The Court also alluded to the idea that the silence of politicians could be invoked to gauge some idea of the party’s intentions.45 The Court placed the Spanish decision in the context of Council of Europe and European Union measures which condemn making apologies for terrorism.46 FAR RIGHT AND RACIST MOVEMENTS European states have also limited the rights of racist and far-right parties. The Flemish party Vlaams Blok, was forced to reorganise itself following a judicial determination it was guilty of racism.47 The Strasbourg institutions have generally been accepting of limitations imposed on self-avowed racists.48 The former Commission invoked Article 17 to declare complaints from a racist party49 and from a former member of the SS,50 inadmissible, while the modern Court has also ruled inadmissible a complaint by a Holocaust denier, again relying partly on Article 17.51 The Court has also invoked Article 17 when a member of a far right political party was convicted of causing alarm with the aggravating factor that it was done for a racial purpose: the applicant had displayed Paragraph 79. Paragraph 82. 44 Paragraph 85. 45 Paragraph 88. 46 Paragraph 90. For more on glorification of terrorism, see Leroy v France application no. 36109/03, 2 October 2008. 47 The decision of the Court of Appeal of Ghent was upheld by the Cour de Cassation: Vlaams Concentratie v Centre for Equal Opportunity and the fight Against Racism Decision of 9 November 2008, available in French at <http://jure.juridat.just.fgov.be/pdfapp/download_ blob?idpdf=F-20041109-13> last accessed on 22 March 2009. 48 For a critical analysis of the ECtHR jurisprudence see Eric Heinze, “Viewpoint Absolutism and Hate Speech” (2006) 69 (4) Modern Law Review 543582. 49 The Commission invoked Article 17 against a racist party seeking to rely on the right to free expression and the right to run for election: Glimmerveen v. Netherlands 8348/78 & 8406/78, 11 Oct 1979 (ECmHR). This does not mean that extremist politicians, even those convicted of incitement to racial hatred, are not protected by defamation laws: Lindon and others v France application nos. 21279/02 and 36448/02, 22 October 2007 (ECtHR GC). 50 Van Wambeke v. Belgium Application no. 16692/90, 12 April 1991. 51 Garaudy v. France Application no. 65831/01, 24 June 2003 (ECtHR). That this is an area of the law where the Court is called upon to make very delicate decisions is clear from another French case where the Grand Chamber, over six dissents, found a prosecution for “public defence of war crimes” violated Article 10: Lehideux v. France (1998) 30 EHRR 665. 42 43 87 Rory O’Connell a poster which implied all Muslims were to blame for the 9/11 attacks on the US. The Court rejected his complaint as inadmissible.52 Even where expression is not so extreme as to come under the umbrella of Article 17, the Court has permitted the State to restrict expression under Article 10(2) in order to deal with incitement to hatred.53 Further, the Court has recognised the right of a trade union to expel members of the union who also belonged to a far right political party.54 Most recently in Feret v Belgium,55 the Court considered the penalties imposed by a Belgian court on a sitting member of parliament. The parliamentarian had distributed material inciting to racial hatred; the court sentenced him to perform community service, pay symbolic compensation and declared him ineligible to be elected for a period of ten years. The Court of Human Rights , by a 4-3 majority, found there to be no violation of the Convention. These cases demonstrate a court tolerant of restrictions on the political rights of the far right and racist movements. However the Court of Human Rights has also striven to ensure that restrictions on free expression due to incitement to hatred laws do not infringe on legitimate journalist investigations56 or contributions to political57 or religious debate.58 FUNDAMENTAL CONSTITUTIONAL OR HUMAN RIGHTS PRINCIPLES That a political movement is opposed to fundamental constitutional or human rights principles is a motivation sometimes invoked to justify limiting political rights.59 This was so in the Turkish Welfare Party case: the Welfare Party’s supposed advocacy of Sharia and the introduction of personal laws, conflicting with the principle of secularism, was held to justify its dissolution.60 What constitutes a fundamental 52 Norwood v United Kingdom [2005] 40 European Human Rights Reports SE 11. 53 Soulas v France Application no. 15948/03, October 7 2008 (ECtHR). 54 Associated Society of Locomotive engineers and Firemen (Aslef) v. United Kingdom Application no. 11002/05, 27 February 2007 (ECtHR). 55 Feret v Belgium application no. 15615/07, 16 July 2009. 56 Jersild v. Denmark (1994) 19 EHRR 1. 57 Ergin v. Turkey 49566/99 applications nos. 48944/99, 50691/99, 63733/00 and 63925/00, 16 June 2005 (ECtHR); Falakaoglu v. Turkey no. 11840/02, October 10 2006 (ECtHR). 58 Giniewski v. France Application no. 64016/00, 31 January 2006 (ECtHR). 59 The aim of protecting the principle of territorial integrity is one such constitutional principle. This aim has been invoked for instance in cases from Turkey (United Communist Party of Turkey v. Turkey (1998) 26 EHRR 121.), Russia (Vatan v. Russia Application no. 47978/99, 7 October 2004 (ECtHR).) and Bulgaria (United Macedonian Organisation Ilinden — Pirin and others v. Bulgaria Application no. 59489/00, 20 October 2005 (ECtHR)). 60 Refah Paritisi (Welfare Party) v. Turkey (2003) 37 EHRR 1 88 constitutional principle is open to disagreement: one Bulgarian case concerned an effort to ban a pro-monarchy association,61 while the Czech Republic sought to refuse registration of one political party because it seemed to challenge the principle of non-retrospectivity of criminal laws (in the context of advocating bringing to justice human rights violators from the previous regime).62 The most dramatic and controversial of all the ECtHR decisions on the theme of militant democracy was the decision in the Turkish Welfare Party case.63 The Turkish Constitutional Court had ordered the dissolution of the Welfare Party on the primary ground that it was opposed to secularism. Most strikingly, the Welfare Party was actually in a coalition government at the time and was indeed the largest party represented in the Turkish Parliament. The Grand Chamber of the ECtHR held that there was no violation of the Convention in this case, finding that the dissolution could be justified for three reasons. The party had failed to distance itself sufficiently from advocacy of violence; the party desired to introduce a system of personal law for Turkish citizens (i.e. different legal systems depending on religion); and finally the party was in favour of introducing Sharia law. This was the only party dissolution case from Turkey where the Court of Human Rights upheld the Constitutional Court’s decision. Despite this, the decision, and especially the reasoning and language of the Court have given rise to considerable controversy. The Grand Chamber relied on a surprisingly stereotypical view of both personal laws and Sharia in coming to its conclusions.64 The strength of feeling that was provoked can be seen in the decision of Welfare’s successor party, Virtue, to withdraw an application from the Strasbourg Court: the Virtue Party had also been dissolved by the Turkish Constitutional Court.65 Citing the Welfare Party case, as well as decisions regarding the wearing of veils in educational settings,66 Virtue issued a statement making clear its opinion that the Zhechev v. Bulgaria Application no. 57045/00, 21 June 2007 (ECtHR). Linkov v. Czech Republic Application no. 10504/03, 7 December 2006 (ECtHR). 63 Refah Paritisi (Welfare Party) v. Turkey (2003) 37 EHRR 1. 64 C. Moe “Refah Revisited: Strasbourg’s Construction of Islam” Conference paper for Emerging Legal Issues for Islam in Europe; Central European University, Budapest, Hungary; 3-4 June 2005. Available at <http://www.strasbourgconference.org/papers/Refah%20Revisited-%20 Strasbourg%27s%20Construction%20of%20Islam.pdf> Last Accessed on 22 March 2009. 65 Fazilet Partisi et Kutan v. Turkey Application no. 1444/02, 27 April 2006. I am grateful to Eva Brems for this citation: Eva Brems “Human Rights as a Framework for Negotiating/Protecting Cultural Differences? An Exploration in the Case-Law of the European Court of Human Rights” Seminar on 24 January 2008 at QUB Law School. 66 Notably, Leyla Sahin v. Turkey Application no. 44774/98. 61 62 Militant Democracy and Human Rights Principles ECtHR was prejudiced against Muslims and was incapable of offering impartial justice.67 SECURING THE TRANSITION TO DEMOCRATIC RULE The process of democratisation in Eastern Europe has given rise to a specific reason for limiting political rights: the perceived need to restrict the political rights of those associated with the previous undemocratic regime. Lustration laws impose restrictions on the political rights and or employment rights of persons who were involved with or collaborated with the Communist era security services.68 The European Court of Human Rights has also been accepting of militant democracy type arguments in several cases emanating from Eastern Europe. In the early case of Rekvenyi the Court of Human Rights stressed that the historical context that Eastern European states were emerging from more than four decades of one party rule was an important consideration to be born in mind.69 In that case, the Court of Human Rights upheld a constitutional ban on police officers participating in politics. Despite the reference to the historical context, such regulations are not unique to Eastern Europe: the ECtHR had earlier upheld a UK restriction on selected public servants from canvassing at elections or running for election.70 The most striking ECtHR decision from Eastern Europe is perhaps the Grand Chamber decision of Zdanoka v Latvia.71 In January 1991, the Communist Party of Latvia launched a coup attempt against the nascent Latvian democracy, allegedly with the intent of inviting the Soviet army in to the country. The attempt quickly petered out; five lives were lost. The CPL later supported the anti-Gorbachev coup in Moscow. In 1991 the CPL was declared unconstitutional. By a 1995 law, persons actively involved with the CPL after January 13 1991 were ineligible for election to Parliament. The Grand Chamber held that a state has the right to take steps to protect itself and the democratic order.72 The Grand Chamber noted that the right to stand for election could be subject to limitaFazilet Partisi et Kutan v Turkey Application no. 1444/02, 27 April 2006. See the Polish law in Matyjek v. Poland Application no. 38184/03, 29 June 2006, (ECtHR); Luboch v. Poland Application no. 37469/05, 15 January 2008 (ECtHR); Jałowiecki v Poland Application no. 34030/07, 17 February 2009 (ECtHR); Zickus v Lithuania application no. 26652/02, 7 April 2009; Adamsons v Latvia Application no. 3669/03, 24 June 2008 (ECtHR). 69 Rekvenyi v. Hungary (1999) 30 EHRR 519 at paragraphs 48-49. 70 Ahmed v. United Kingdom (1998) 29 EHRR 1. 71 Zdanoka v. Latvia (2006) 45 EHRR 17, reversing the earlier decision of a Chamber in Zdanoka v. Latvia (2005) 41 EHRR 659. 72 Zdanoka v. Latvia (2006) 45 EHRR 17 at paragraph 100. 67 68 tions, and that such limitations did not necessarily have to be based on an individualised consideration of an individual’s conduct; as long as general rules were not arbitrary, then that is sufficient to justify the limitation.73 Latvian law allowed an individual to challenge in court the determination that she belonged to the prohibited category, which provided important safeguards.74 While finding that there was no violation, the ECtHR drew attention to the Latvian Constitutional Court’s ruling that there should be a time limit on the restriction; thus laying down a marker that the ECtHR might revisit its conclusion at a later date.75 CONCLUSIONS For the most part, the European Court of Human Rights has admirably struck the balance in favour of human rights in a democratic society when considering the problems posed by supposedly anti-democratic political movements. Despite the controversial reasoning in the Welfare Party case, and some other “militant democracy” type language in other cases, the recent case law of the Court indicates a generally conscientious effort to apply human rights principles. The Court examines restrictions to ensure that they are prescribed by law, or a legitimate aim and necessary in a democratic society (proportionate). This last point is the most crucial, especially the “least restrictive means” element of the proportionality test.76 There are many types of restrictions that can be imposed on political rights, and states should have to justify the use of the particular measure selected. One of the most disturbing aspects of the Welfare Party case was the selection of the very drastic measure of party dissolution. It is clear from other cases and national examples that less drastic measures are available: exclusion from Executive office is one possibility available in Northern Ireland for instance, while Israel offers the compromise measure of disqualifying a party from running for election, without actually Zdanoka v. Latvia (2006) 45 EHRR 17 at paragraph 115. Zdanoka v. Latvia (2006) 45 EHRR 17 at paragraph 127. 75 Zdanoka v. Latvia (2006) 45 EHRR 17 at paragraph 135. 76 This point is emphasised by both Eva Brems and Samual Isaacharoff: E. Brems, “Freedom of Political Association and the Question of Party Closures” in Wojciech Sadurski (ed.) Political rights under stress in 21st century Europe (Oxford ; New York: Oxford University Press, 2006) 141-151; S. Issacharoff, “Fragile Democracies” (2007) 120 Harvard Law Review 1405, 1457. Cram also stresses proportionality, arguing that the Spanish ban on Batasuna was not necessary, as less restrictive measures could have sufficed: Ian Cram, “Constitutional responses to extremist political associations -ETA, Batasuna and democratic norms” (2008) 28 (1) Legal StudiesSociety of Public Teachers of Law 68, 94. 73 74 89 Rory O’Connell dissolving it.77 The possibility of denying certain forms of public funding also suggests itself. The importance of the proportionality test was asserted by the Strasbourg court itself in later cases from Turkey dealing with the decision to remove certain parliamentarians from Parliament because the Constitutional Court had dissolved the relevant party. The Court of Human Rights concluded that this was too drastic a step; such a step tended to abolish the very substance of the right to run for election and to represent the sovereign people once elected.78 The Strasbourg Court was influenced by the fact that Turkey had itself since introduced a more proportionate system (removal from Parliament only of those Parliamentarians whose words or conduct were the reason for the dissolution of a political party).79 Even more clearly, in cases dealing with the removal from Parliament of members of the Virtue Party (following that party’s dissolution by the Constitutional Court), the Court of Human Rights referred, with a hint of approval, to reforms to the Turkish Constitution. These reforms allowed tightened up the requirements for dissolution of a political party and allowed the Constitutional Court to impose a less severe sanction (denial of public financing).80 Any restrictions on political rights must be necessary in a democratic society. The theory of militant democracy is that a democratic state is entitled to take preventive steps against a political movement which uses undemocratic means (violence) or pursues antidemocratic goals. The legitimacy of such measures is questionable if the state is not itself committed to democratic means and goals. As Harvey notes it is not necessarily the case that Council of Europe states are ideal liberal democracies81 and sometimes even established democracies fall short of the ideal. For this reason it is imperative that courts apply the human rights principles rigorously. 77 Discussed in S. Issacharoff, “Fragile Democracies” (2007) 120 Harvard Law Review 1405, 1447; Mordechai Kremnitzer, “Disqualification of Lists and Parties: The Israeli Case” in A. Sajó (ed.) Militant Democracy (Utrecht: Eleven International Publishing, 2004). 78 Sadak and others v. Turkey Applications nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95), 11 June 2002 (ECtHR) at paragraph 40. 79 Ibid at paragraph 37. 80 Silay v. Turkey Application no. 8691/02, 5 April 2007, (ECtHR) at paragraph 35. 81 P. Harvey, “Militant democracy and the European Convention on Human Rights” (2004) 29 (3) European Law Review 407, 419. 90 Alexander Orakhelashvili STATEHOOD, RECOGNITION AND THE UNITED NATIONS SYSTEM: A UNILATERAL DECLARATION OF INDEPENDENCE IN KOSOVO1 Alexander Orakhelashvili LLM (Leiden), PhD (Cambridge), Lecturer, School of Law, University of Birmingham I. INTRODUCTION1 The Unilateral Declaration of Independence (UDI) in Kosovo in February 2008 has raised several fundamental questions of international law in terms of the legal status of secessionist entities, but also of the legality of certain acts and conduct in the context which is being managed by the UN Security Council in the exercise of its Chapter VII powers to maintain and restore the international peace and security. States that have sponsored and recognised the independence of Kosovo have neither declared that this matter is outside the realm of international law because of its political nature, nor do they have, as will be shown below, developed any consistent explanation of the international legal position that would envisage or tolerate the independent state of Kosovo. The question of whether Kosovo is a state is material for a number of issues arising in international practice, before international and national courts, in terms of the aspects of recognition of the acts and transactions of this entity. These issues will no doubt be raised in due course before courts and beyond, and it may be premature to examine them at this stage. Instead, the present contribution will cover the basic issues that pervaded the process in which independence was declared in Kosovo and debated in various international fora, and a number of recognitions were granted to this entity. The arguments raised in this process are most material and current for this contribution, as well as determinative of more specific claims and incidences of statehood that may be raised in national and international organs over the coming years. The contribution will also engage with different views regarding the statehood claims and recognition of Kosovo, especially with the argument that the existence of Kosovo is now a fact and 1 This article reflects developments as of 1 August 2008. part of reality. In accordance with the above, the following Part II. will examine the facts and history of the Kosovo situation; Part III. will cover then the statehood and secession requirements and their application under international law in the case of Kosovo; Part IV. will examine the argument that the independence of Kosovo is unique and cannot establish any precedent; Part V. shall examine the legality of recognition of the independence of Kosovo; and Part VI. will cover the compatibility of the UDI and the deployment of the EU Mission EULEX in Kosovo with the relevant UN Security Council resolutions; the future prospects of resolving the Kosovo situation will be dealt with in Part VII.; and finally Part VIII. will offer some conclusions, among others on policy issues. II. FACTS AND HISTORY OF THE KOSOVO SITUATION Historically, Kosovo has been an autonomous province of Serbia within the Socialist Federal Republic of Yugoslavia (SFRY), until the abolition of its autonomous status in 1989. After the dissolution of the SFRY in 1991-1992, Kosovo continued as part of Serbia within the Federal Republic of Yugoslavia (FRY). In 2003, the FRY was transformed into the Federation of Serbia and Montenegro. After Montenegro declared its independence in 2006 on the basis of a referendum and with the consent of the central government, Serbia continued as the successor of the FRY. Already from the 80s onwards, the separatist and pro-independence movement among the Albanian majority population in Kosovo has been receiving international attention. From 1998 on, the UN Security Council has been involved in dealing with this situation as a threat to international peace and security under Chapter VII of the United Nations Charter. S/ RES/1160 (1998) of 31 March 1998 has been adopted condemning the activities of the Federal Forces of Yugoslavia against the Kosovo population, as well as the 91 Alexander Orakhelashvili terrorist attacks by the “Kosovo Liberation Army.” By S/RES/1203 (1998) of 24 October 1998 the Security Council oversaw the agreement between the OSCE and the FRY to desist from further human rights violations and permit the OSCE mission to monitor the humanitarian situation on the ground. The treatment of Albanians in Kosovo by the FRY security forces has caused great human suffering with international implications, culminating with the 1999 attack and the air campaign by NATO against the FRY which ended with the withdrawal of Yugoslavian forces from Kosovo and the establishment of the UN Mission in Kosovo (UNMIK) by S/RES/1244 (1999) of 10 June 1999, to administer the territory, and the Kosovo Force (KFOR) to provide for order and security. By the end of the NATO intervention, the number and extent of human casualties and suffering among the Kosovo Albanians has been much higher than before the NATO intervention, In 2007 the issue of the final status of Kosovo has been brought before the UN Security Council, on the basis of the plan submitted by the UN Rapporteur Martti Ahtisaari.2 The plan envisaged the internationally supervised independence of Kosovo. This was rejected by Serbia, and accepted by the authorities in Kosovo. The presentation of the Ahtisaari Plan generated a heavy debate on the status of Kosovo, both in its legal and political aspects. As it would have been expected, the idea of the independence of Kosovo was endorsed by the United States and a number of EU Member States, and opposed by Russia, China, India,3 but also by several EU Member States. A motivation behind this objection was the need for further negotiations between Belgrade and Pristina to find a mutually acceptable agreed solution of the Kosovo status.4 At the end of the day, the Security Council refused to endorse the supervised independence for Kosovo based on the Ahtisaari plan, which was supported in the Council only by a substantial minority. Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, Doc. S/2007/168. 3 P. Reynolds, “Kosovo: To Recognise or Not To Recognise”, BBC Information, 18 February 2008, available at: <www.news.bbc.co.uk> (this and all other press and website information on file with the author); see also the information “Russia, India, China Step up Solidarity”, The Hindu, 16 May 2008 available at: <www.hindu.com>, India for the first time joined Russia and China in stating categorically in the RIC (Russia, India, China) communiqué that “the unilateral declaration of independence of Kosovo is contrary to the U.N. Security Council Resolution 1244,” and calling for settling the issue “in accordance with norms of international law” and on the basis of “an agreement” and “through negotiations” between Belgrade and Pristina. The text of the RIC joint communiqué of 15 May 2008 is available on the website of the Indian Ministry of External Affairs, available at: <www. meaindia.nic.in>. 4 See e.g. Statement by the Russian Representative Mr. Churkin to the United Nations 14 December 2007. 2 92 The negotiations were continued within the framework of the United States, EU, Russia Troika, but during a number of meetings the Serbian and Kosovo Albanian sides failed to reach agreement, the former objecting to independence and the latter insisting on internationally supervised independence as envisaged in the Ahtisaari Plan.5 Against this background, the authorities in Kosovo declared the independence of the province from Serbia, and appealed to the international community for recognition on 17 February 2008. Serbia considered this UDI illegal and stated the intention to achieve having it overturned.6 Recognitions followed mostly from Western states, and the opposition was voiced from the rest of the world. Currently the states having recognised Kosovo as an independent state consider the process of the determination of the status of Kosovo as a finalised affair, while Serbia and a number of other states support the idea of further negotiations to achieve the agreed settlement between the Kosovo authorities and the government of Serbia. In the post UDI period, as well as before that, the Serbian government has come under pressure from the EU and elsewhere to accept the independence of Kosovo, possibly in exchange for the accelerated process of the integration into the EU.7 As can be seen from the statement of the Prime-Minister of Serbia the EU, “urged the signing of a stabilisation and association agreement between the European Union and Serbia and that Serbia’s commitment was to establish good neighbourly relations with Kosovo.” The response of the Prime-Minister was that, “Since the EU commissioner conveyed the EU stand openly, we will have to say in an equally open way that we most decisively reject [EU Commissioner] Rehn’s request that Serbia establish good neighbourly relations with itself, i.e. part of its territory.”8 According to the statement of the Serbian Foreign Minister, “The signing of this agreement does not imply in any way whatsoever Serbia’s position on Kosovo and Metohija, and we will never accept the unilaterally proclaimed independence of the southern Serbian province.”9 Troika Press Communiqué: the Baden Conference, Baden, Austria, 28 November 2007; Troika Press Statement: the Brussels Conference, Brussels, 20 November 2007. 6 “Kosovo Tool Kit for Separatists”, BBC Information, 20 February 2008, available at: <news.bbc.co.uk>. 7 “EU Offers Serbia Deal on Kosovo”, BBC Information, 14 December 2007, available at: <news.bbc.co.uk>. 8 Information of the Serbian Foreign Ministry, 25 April 2008, available at: <www.mfa.gov.yu/Pressframe14.htm>. 9 Information of the Serbian Foreign Ministry, 24 April 2008, available at: <www.mfa.gov.yu/Pressframe1.htm>. 5 Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo In April 2008, the Serb population of Kosovo was entered into the list of voters in the Serbian municipal and parliamentary elections of May 2008. Elections in Serbia, including the Serb-populated regions of Kosovo, were held on 11 May, organised by the Serbian Electoral Commission.10 These regions, mostly in the northern part of Kosovo, are not under the effective control of the authorities in Pristina. III. LEGAL MERITS OF KOSOVO’S DECLARATION OF INDEPENDENCE: THE ASPECTS OF STATEHOOD AND SECESSION It is clear that the UDI in Kosovo has been based on the claim that Kosovo has seceded from Serbia. The validity of this claim depends on the way international law regulates secession. Whether the UN Security Council could approve the independence of Kosovo will not be examined in detail because of the abstract character of this question.11 But the practice of states in relation to the attempts of secession deserves more attention. The international legal system has witnessed several attempts of secession, successful or unsuccessful. Bangladesh (formerly West Pakistan) has seceded from Pakistan after the latter’s massive human rights abuses, sometimes even characterised as genocide, the military intervention by India, widespread recognition by third states and the eventual admission to the United Nations in 1974.12 Biafra seceded from Nigeria in the 1960s and gained few recognitions. As a consequence of civil war, it was reintegrated into Nigeria in 1970.13 It is doubtful whether secession played any major and original role in the settlement in the Balkans in the 1990s, after the disintegration of the SFRY. The Badinter Commission emphasised in its Opinions 1 and 8 that the recognition of the successor states of the SFRY occurred in the context of the latter’s disin10 Information available from <www.balkaninsight.com>; <www.msnbc. com>; <news.bbc.co.uk> of 11 May 2008. 11 But for an accurate analysis see K. Wirth, “Kosovo am Vorabend der Statusentscheidung: Überlegungen zur rechtlichen Begründung und Durchsetzung der Unabhängigkeit”, ZaöRV 67 (2007), 1065 et seq.; on the limits of the powers of the Security Council see A. Orakhelashvili, “The Acts of the Security Council: Meaning and Standards of Review”, Max Planck UNYB 11 (2007), 143 et seq.; id., “The Impact of Peremptory Norms on Interpretation and Application of UN Security Council Resolutions”, EJIL 16 (2005), 59 et seq.; id., Peremptory Norms in International Law, 2006, Chapters 12-14. 12 J. Crawford, The Creation of States in International Law, 2006, 142 et seq.; J. Dugard/ D. Raic, “The Role of Recognition in the Law and Practice of Secession”, in: M. Cohen (ed.), Secession: International Law Perspectives, 2006, 94 et seq. (122 et seq.); T. Musgrave, Self-Determination and National Minorities, 1997, 189 et seq. 13 For the developments and claims of and around Biafra see Musgrave, see note 11, 196 et seq. tegration as opposed to the right of secession of individual Yugoslav republics.14 At the example of Croatia it has been emphasised that the attempt to secede from the SFRY was undertaken after the Croatian representation was blocked in the highest federal organs of the government of the SFRY. In particular, the representatives of other republics declared they would take decisions without the Croatian participation.15 These events, if giving rise to secession, would be explainable in terms of denying Croatia the representation in the federal government and possibly activating the exception to the territorial integrity safeguard clause under the 1970 Friendly Relations Declaration.16 In any case, the Arbitration Commission on Former Yugoslavia strictly followed the Friendly Relations Declaration and affirmed the inviolability of all former Yugoslav republics in accordance with the principle of uti possidetis juris.17 In accordance with the process of the independence of successor states after the disintegration of the SFRY as opposed to secession of individual republics, 14 In Opinion No. 1 of 29 November 1991, the Commission emphasised that “the Socialist Federal Republic of Yugoslavia is in the process of dissolution.” In Opinion No. 8 of 4 July 1992, para. 4, the Commission observed that “the process of dissolution of the SFRY referred to in Opinion No. 1 of 29 November 1991 is now complete and that the SFRY no longer exists.” 15 Dugard/ Raic, see note 11, 125 et seq. 16 See below note 35 and the accompanying text. 17 In its Opinion No. 3 of 20 November 1991, “The Committee therefore [took] the view that once the process in the SFRY leads to the creation of one or more independent states, the issue of frontiers, in particular those of the Republics referred to in the question before it, must be resolved in accordance with the following principles: First – All external frontiers must be respected in line with the principles stated in the United Nations Charter, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV)) and in the Helsinki Final Act, a principle which also underlies Article 11 of the Vienna Convention of 23 August 1978 on the Succession of States in Respect of Treaties. Second – The boundaries between Croatia and Serbia, between Bosnia-Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by agreement freely arrived at. Third – Except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in settling decolonisation issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, (1986) Law Reports 554 at 565): ‘Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles...’ The principle applies all the more readily to the Republic since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics’ territories and boundaries could not be altered without their consent. Fourth – According to a well-established principle of international law the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect. This principle is to be found, for instance, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV)) and in the Helsinki Final Act; it was cited by the Hague Conference on 7 September 1991 and is enshrined in the draft Convention of 4 November 1991 drawn up by the Conference on Yugoslavia.” 93 Alexander Orakhelashvili none of the former Yugoslav republics were admitted to the United Nations until the FRY (Serbia-Montenegro) adopted in 1992 its new constitution whereby it reconstituted itself implying the renunciation of all territorial rights over those republics, and its preparedness to recognise them.18 Neither the United Nations nor the EC have proclaimed their support for the independence on the basis of secession of the entity without the consent of the parent state.19 Thus far Bangladesh has been the only entity that has seceded with out the consent of the parent state and its acceptance to the United Nations has been the key to its statehood, which factor has never been present in the case of other secessionist entities that attempted seceding without the consent of their parent states. Furthermore, as Crawford emphasises, even after 1989 when twenty-one new states have emerged, the principle that no territory can secede from the state without its consent has retained its continued validity.20 Thus, the principle of territorial integrity has survived the post-1989 parade of declarations of independence, and international law does not authorise the unilateral secession of the territory from the state. Against this background, the legality of Kosovo’s independence should be measured not only by reference to the factual effectiveness of its existence but also to the legal criteria of statehood. Factual criteria of statehood embodied in the Montevideo Convention – territory, population, government and capacity to enter into relations with other states – are generally accepted as part of international legal reasoning.21 As part of the factual criteria of statehood, effectivité refers to the effective exercise of state authority over the relevant territory. Under this argument, to constitute a case of effective statehood, Kosovo is supposed to have the government that effectively controls its territory and exercises effective authority over it. The study of factual effectiveness has occupied a significant place in the doctrine of international law. 18 Fourth – According to a well-established principle of international law the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect. This principle is to be found, for instance, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV)) and in the Helsinki Final Act; it was cited by the Hague Conference on 7 September 1991 and is enshrined in the draft Convention of 4 November 1991 drawn up by the Conference on Yugoslavia.” 19 Crawford, see note 11, 416; for a similar approach on the former Soviet republics see T. Franck, Fairness in International Law and Institutions, 1995, 157 et seq. 20 Crawford, see note 11, 415. 21 For the analysis of these criteria see Crawford, see note 11, 37 et seq. 94 But it has never been the only or even the dominant way of explaining the international legal process. It will suffice to recall that the reaction of Sir Hersch Lauterpacht to the monograph of Charles de Visscher on Theory and Reality of Public International Law was to denote it as a subversive work.22 The normative force of the factual (die normative Kraft des Faktischen) is an oxymoron as far as international law is concerned. There is hardly any area of international law where fact as such produces legal regulation or status. The substance of the principle of effectiveness is difficult to measure. The jurisprudence of the ICJ has examined the concept of factual effectiveness on multiple occasions, mostly in terms of territorial disputes, and not on a single occasion has it held that the mere factual situation influenced, by itself and without further legal requirements, the rights and duties of the relevant actors. Factual effectiveness never creates legal positions on its own, but only if coupled with agreement and consent between states. At the same time, the doctrinal works based on the premise of factual effectiveness do not accurately explain how the factual element works in the process of allocation of rights and duties in international law.23 The opinion is expressed in doctrine that “the crucial yardstick to appraise the statehood of an entity is (the internal as well as international) effectivité of its governmental apparatus.”24 It is suggested that the presumption should be adopted against the effectiveness of the secession and in favour of the territorial integrity of the parent state.25 It is also claimed that effectiveness can be the sole basis for secession in the inter-state legal order.26 This far-reaching statement effectively denies the role of law in assessing the claim of the relevant entity to statehood and reduces the whole problem to that of factual effectiveness. This approach cannot be seen as reflecting the international legal position. In fact the Turkish Republic of Northern Cyprus (TRNC) arguably possesses effectivité; Taiwan does too; so did Manchukuo, Biafra and North Vietnam; but none of those were states under international law, because they did not meet the legal criteria of statehood. To hold that Kosovo’s independ22 R.Y. Jennings, “Hersch Lauterpacht, A Personal Recollection”, EJIL 8 (1997), 301 et seq. 23 See for detail A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law, 2008, Chapter 5. 24 J. D’Aspermont, “Regulating Statehood: The Kosovo Status Settlement”, LJIL 20 (2007), 649 et seq. (654 et seq.). 25 T. Christakis, “L’état en tant que ‘fait primaire’: réflexions sur la portée du principe d’effectivité”, in: M. Cohen (ed.), Secession: International Law Perspectives, 2006, 138 et seq. (149). 26 Christakis, see above, 153, also acknowledging that effectiveness contradicts the principle of uti possidetis. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo ence is lawful because of the effectiveness of its factual existence is to misunderstand the criteria of the creation of states in international law. The argument of according crucial importance to effectivité in the case of Kosovo suffers from a more important conceptual failure deriving from the fact that the independence of Kosovo is envisaged as a controlled and supervised independence and much of the burden of which is intended to be shouldered by the EU. There has never been an objectively verifiable indication if and how long Kosovo could survive on its own and without the EU/NATO supervision as an independent state. In other words, effectivité has never been tried or verified. In the case of Kosovo, effectivité belongs to the field of abstract speculation as opposed to the factual reality. In addition, it is unclear whether effectiveness is required only at the particular time or forever. What is effective now could be destabilised into collapse, or even militarily overtaken, in a year or two. As effectiveness is inherently immeasurable, the theory and practice has not worked out its precise parameters. There is no judicial pronouncement on its role in the matter of statehood. This uncertainty is further in line with the fact that if there is a legal basis for statehood, for instance the principle of self-determination, the lack of effectiveness cannot impede the creation of the state, as was the case with the Democratic Republic of the Congo in the 1960s. If we apply this to the problem of statehood in general and to Kosovo, this entity would hardly qualify as a state under the criteria of effectiveness, which is profoundly missing in the case of Kosovo. What the notion of factual effectiveness could at most suggest at the example of Kosovo is that, having met the factual requirements of statehood, it could potentially be a state if it were to fulfil the legal requirements of statehood. The presence of legal factors of statehood would then transform the non-state into a state. In practice there has never been an instance where the statehood of an entity has been accepted by the international community on the basis of mere factual independence. The approach that ultimate success of secession can justify the statehood of the relevant seceding entity is contradictory. Sir Hersch Lauterpacht considered the factual success insufficient, and saw instead as a requirement that the parent state must in fact have ceased to make efforts, promising success, to reassert its authority.27 In other words, unless the parent state stops objecting, the factor of 27 H. Lauterpacht, Recognition in International Law, 1948, 8. effectiveness can produce no independent effect. Although it has since long been argued that the emergence of states is a factual process and stands outside the law, currently there is wide doctrinal recognition that statehood is not merely a factual phenomenon but also governed by legal criteria.28 In other words, statehood is a legal question as much as it is a factual one. Taking this as the starting-point, the ascertainment of the legal requirements that apply to the potential creation of the particular state depends on the legal context in which the statehood is claimed. In some cases the matter can be resolved consensually; in other cases, the matter may involve the issues of overriding public policy. The legal requirements applicable to the emergence of the particular state can vary from those belonging to ordinary international law to those deriving from peremptory norms (jus cogens). The particular legal requirements will also vary in terms of how the relevant entity is claiming statehood: through consensual separation, dissolution of the parent state, or unilateral secession; by peaceful means or violently; with the popular assent or without it; in the colonial context or outside it. The legal criteria applicable to the statehood in terms of entities like Kosovo relate to the entity that claims statehood outside the colonial context and without the consent of the parent state. This context confirms that Kosovo is not an entity entitled to self-determination.29 There are various doctrinal attempts to explain the process of secession in legal terms. The so-called “internal theory” envisages secession as an act solely of domestic concern and not governed by international law. Hence, under this view, secession is neither legal nor illegal under international law. Musgrave argues that secession can be permitted by virtue of this “internal theory”, and adds that secession is simply a political act, although the emergence of the new state through it will necessarily produce consequences in the international legal system. But secession remains a domestic matter and a legally neutral act under international law.30 There is a doctrinal argument that secession is not governed by international law, as articulated by Theodore Christakis by reference to Prosper Weil.31 According to Franck, secession is neither endorsed Cf. Crawford, see note 11, 96 et seq. See further below the position under the relevant UN General Assembly resolutions. 30 Musgrave, see note 11, 192 et seq., 209 et seq. 31 Christakis, see note 24, 155 et seq. 28 29 95 Alexander Orakhelashvili nor prohibited in international law. Franck states in one place that international law does not recognise a general right to secession and in another place that it does not prohibit secession. Although Franck creates the impression to avoid the across-the-board acceptance of the right to secession, he still admits the possibility of the entity seceding without the consent of the parent state.32 In general, international law recognises that certain activities and prerogatives are primarily matters of domestic law and jurisdiction. In the Nottebohm case the ICJ considered that the conferral of nationality to individuals was a matter of domestic jurisdiction. In the Anglo-Norwegian Fisheries case the Court held the same about the delimitation of territorial waters.33 However, in both cases the Court was dealing with the originally “domestic” activities that could affect the jurisdiction and competence of other states. Hence, in both cases the Court pronounced that the legality of these originally “domestic” activities is measured by reference to international law. This is conceptually correct, because only those actions and processes can be domestic which do not affect the international legal relations of the state. Secession of the territory from the parent state necessarily affects not only the territorial sovereignty of the parent state, but also its legal relations to third states, and thus it cannot be a domestic act not governed by international law. The same considerations apply to the “internal theory” of secession which essentially repeats the thesis which views effectiveness primarily or exclusively as a matter of fact or as a political matter not governed by international law. In conceptual terms, it is all the same if one portrays secession as excluded from the ambit of international law either on the basis of factual analysis, political argument or domestic jurisdiction. After all, these factors are closely intertwined in practice. At the same time, such theoretical or conceptual qualifications of secession cannot prevent it from producing consequences or having its legality assessed within the international legal system. If, thus, the legality and validity of secession can be assessed internationally, all the theoretical aspects lose their coherence and are conceptually undermined. The real answer on the legality of the particular instance of secession can be obtained not through examining various theories but on the basis of the assessment of the international legal position accepted by the international community. The thesis that secession is not governed by international law contradicts the thesis of the effectiveness of legal regulations as articulated in the major work of Sir Hersch Lauterpacht. According to this thesis, if the relevant matter occurs within the international legal system, there is always international law that governs it. Even if there were no specific rules related to that matter particularly, the more general legal regulation on the subject would apply to it in an effective manner.34 If the reasoning of Sir Hersch Lauterpacht is followed, no issue within the ambit of international law is outside the international legal regulation, and there are no gaps in legal regulation. In more specific terms, the regulation of secession by international law is inherently implied in the thesis that the creation of states is not only a matter of fact, but also one of law. As secession is a method of the creation of states, it is definitionally governed by international law. The argument of Franck that secession is not regulated, that it is neither authorised nor prohibited by international law is inaccurate because the legality of secession cannot be judged on whether there is a specific rule of authorising or outlawing it. As soon as the principle of territorial integrity applies, it necessarily outlaws secession without the consent of the parent state. Such understanding avoids systemic inconsistency under which international law would guarantee territorial integrity yet would not prohibit secession. Another basis articulated sometimes in doctrine in favour of the legality of secession is that of the oppression (or remedial) theory. The problem with the oppression theory is that it is not clearly defined what constitutes oppression.35 The oppression theory of secession has no legal value on its own. It can be relevant only to the extent of reflecting the legal position among others as enshrined in A/RES/2625 (XXV) of 24 October 1970, the so called Friendly Relations Declaration and the 1993 Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights. A so-called “remedial secession” can only be envisaged on the conditions specified under the 1970 Friendly Relations Declaration, which qualifies the territorial integrity of states only in the case where that state does not possess the government equally representing its entire pop- Franck, see note 18, 159 et seq. Fisheries case (UK v Norway), ICJ Reports 1951, 116 et seq. (132); Nottebohm case, ICJ Reports 1955, 4 et seq. (22). 34 H. Lauterpacht, The Function of Law in the International Community, 1933, 77. 35 Musgrave, see note 11, 191 et seq. 32 33 96 Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo ulation. The Friendly Relations Declaration does not condition the territorial integrity of the state by any other factor. The Declaration specifies that nothing in it can be interpreted, “as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” The 1993 Vienna Declaration, although reaffirming the right of peoples to self-determination, emphasises that, “In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.”36 Although these declarations are not binding as such, A/RES/2625 certainly embodies customary international law.37 In addition, and independently of the customary law status, it can be safely assumed that if the entire international community proclaims a certain attitude in nonbinding declarations – in this case the attitude against secession – this mere fact, although by itself insufficient for proving the normative status of the relevant approach, it is perfectly sufficient for it to be understood that international law could hardly contain the legal regulation contradicting that attitude. The attitude expressed in a General Assembly resolution having commanded the support of the vast majority of states must be seen as embodying the fundamental policies of the international community, with the consequent presumption that, short of direct evidence to the contrary, international law contains no contrary legal regulation. In other words, even if one rejects the normative force of initially non-binding resolutions, unless one definitively proves that international law positively accepts the right of the entities like Kosovo to secede, the presumption should be that it accepts no such right. Against this background, it is correctly emphasised that unilateral secession is the antithesis of territorial integrity. Ethnic selfdetermination represents a threat to the continued existence of states and has thus been repudiated by the international community.38 If territorial integrity of states means anything, secession can only be allowed with the consent of the parent state. The United States government referred to some “special circumstances” of Kosovo, of “unprecedented” character that warrant treating Kosovo as a “special case”, “(1) The state of Yugoslavia collapsed in a non-consensual, exceptionally violent way, creating threats to international peace and security that have obliged the UNSC to act repeatedly. (2) Between 1993 and 1999, the U.N. Security Council (UNSC) issued seven resolutions addressing Kosovo. (3) Amid massive human-right violations, the Milosevic government repeatedly disregarded UNSC resolutions demanding a halt to hostilities. (4) The Milosevic regime’s actions in Kosovo and throughout the region undermined international stability and led to cross-border refugee upheavals. (5) In 1999, NATO’s 19 allies reached the consensus decision to take collective action to remove Milosevic’s police and military forces from Kosovo. (6) Kosovo is administered by the United Nations under U.N. Security Council Resolution (UNSCR) 1244, unanimously adopted (with China abstaining) June 10, 1999, to address Milosevic’s actions. Elements of UNSCR 1244 include: denying Serbia a role in governing Kosovo; setting up an interim UN administration; providing for local self-government; and envisioning a UN-led political process to determine Kosovo’s future status.”39 Given that the legal arguments in favour of the uniqueness of statehood have been advanced, among others by the US Department of State, the merit of these assertions shall be examined. Even as all six circumstances and factors referred to by the Department of State are factually correct, none of these involve, or were at the pertinent times viewed as dealing with or prejudicing, the territorial status of Kosovo. More specifically: 36 Vienna Declaration and Programme of Action, 12 July 1993, Doc. A/ CONF.157/23, para. 2. 37 See Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (100-101). Musgrave, see note 11, 181 et seq. US Department of State, “Why Kosovo Is Different”, available at: <www. state.gov>. 38 39 97 Alexander Orakhelashvili The collapse of the SFRY into five successor republics, of which the FRY was one, produced the situation in which the boundaries of all these republics were considered as fixed and unaffected, as governed by the principle uti possidetis juris. The Arbitration Commission on the Former Yugoslavia has expressly affirmed the inviolability of the borders of all five republics including the FRY. None of the Security Council resolutions between 1993 and 1999 have raised the matter of the independence of Kosovo, or prejudiced the territorial integrity of Yugoslavia and Serbia. There is no rule or principle of international law requiring or permitting the secession of a region or entity whose population has been subjected to serious human rights violations. The same is the case even if those serious and massive human rights violations lead to crossborder refugee upheavals. The use of force against the FRY by NATO has never been proclaimed as aimed at disrupting the territorial integrity of the FRY, or at achieving any permanent territorial settlement. It will be recalled that in the process of adoption of S/RES/1244 and preceding deliberations, the requirement that the population of Kosovo would decide the status of Kosovo in three years on the referendum basis did not get through and was dropped. Projecting S/RES/1244 as supportive of the independence of Kosovo is inaccurate and counterfactual. This resolution also denies the Serbian presence in Kosovo as a temporary matter, and commits both the states and the United Nations to the territorial integrity of the FRY; moreover, this Resolution envisages the FRY and a fortiori Serbian troops guarding the external border of the province of Kosovo. All this certifies that the proponents of the independence of Kosovo have never, at any stage of the process, offered any consistent and wellsubstantiated position as to why Kosovo is entitled to independence. The problem with the arguments of the Department of State is that they are inspired by common sense rather than being aimed at locating the evidence that would justify them under international law. It has to be considered how the international community has viewed its claim to statehood since the 1999 NATO intervention and the adoption of S/ RES/1244 in which the territorial integrity of the FRY was reaffirmed. After the dissolution of the SFRY and later of the FRY, the entitlement of Kosovo to become an independent state has not been affirmed. In the period between the 1999 NATO attack on the 98 FRY and the Ahtisaari Plan, nothing in the practice of states or the United Nations has ever divulged any attitude aimed at disrupting the territorial integrity of the FRY and subsequently Serbia. The view of UNMIK has likewise been that the territorial integrity of the FRY and Serbia should be preserved.40 Later on, by S/ RES/1785 (2007) of 21 November 2007 the Council “reaffirmed its commitment to the political settlement of the conflicts in the former Yugoslavia, preserving the sovereignty and territorial integrity of all States there within their internationally recognized borders.” Even in the Ahtisaari Plan, which as we shall see below the United States and other proponents of the Kosovo independence, including the parliament in Pristina,41 refer to as the basis thereof, recommended the independence of Kosovo through the revision of S/RES/1244. Thus there has been, until the UDI in Kosovo, no normative development, not even an institutional proposal that would envisage the independence of Kosovo without revising Resolution 1244. In doctrinal terms, it has been emphasised that Kosovo’s independence and secession has not been considered lawful or permissible after the SFRY’s dissolution. Kosovo has been denoted as an unsuccessful attempt of secession.42 After the Ahtisaari Plan was submitted to the Security Council, both before and in the aftermath of the proclamation of independence, the views of states got divided. The United States have considered that the Ahtisaari Plan should serve as the basis for the independence of Kosovo.43 According to the Russian statement, the proclamation of independence in Kosovo violated, “the sovereignty of the Republic of Serbia, the Charter of the United Nations, UNSCR 1244, the principles of the Helsinki Final Act, Kosovo’s Constitutional Framework and the high-level Contact Group accords. Russia fully supports the reaction of the Serbian leadership to the events in Kosovo and its just demands to restore the territorial integrity of the country.” It was expected that the, “UN Mission in 40 The UNMIK-FRY common document, adopted in Belgrade on 5 November 2001 “Promotes the protection of the rights and interests of Kosovo Serbs and other communities in Kosovo, based on the principles stated in UNSCR 1244, including the sovereignty and the territorial integrity of the Federal Republic of Yugoslavia, as well as in the Constitutional Framework for Provisional Self-government.” Furthermore, the document “Reaffirms that the position on Kosovo’s future status remains as stated in UNSCR 1244, and that this cannot be changed by any action taken by the Provisional Institutions of Self-government.” 41 See the text of the UDI of Kosovo under <news.bbc.co.uk>, 19 February 2008. 42 Crawford, see note 11, 400, 407 et seq. 43 Department of State document, “Kosovo’s Final Status: A Key to Stability and Prosperity in the Balkans”, available at: <www.state.gov> of 23 January 2008. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo Kosovo and NATO-led Kosovo Force will take immediate action to fulfil their mandates as authorized by the Security Council, including voiding the decisions of Pristina’s self-governing institutions and adopting severe administrative measures against them.”44 The fact that the Security Council did not take action for annulling the independence of Kosovo does not imply the approval of the independence of Kosovo. In the Namibia Advisory Opinion, the ICJ clearly emphasised that, “The fact that a particular proposal is not adopted by an international organ does not necessarily carry with it the inference that a collective pronouncement is made in a sense opposite to that proposed.”45 There is also a tendency to judge the legality of secession by reference to the arguments of expediency. For instance, it is contended that the international community accepts the legality of secession where there is no viable alternative to it, as was the case with Kosovo.46 However, the criteria of expediency and reasonability are inherently subjective and can never command the legitimacy that would be acceptable for all parties involved. International law could only approve secession if the legal criteria thereof are met, and not just because in the opinion of one side in the matter there are no more reasonable alternatives. In addition, the existence of alternatives can be a matter of appreciation and discussion. Both Serbia and some other states have clearly stated before the UDI that the potential for negotiations was not exhausted and there was still substantial room for finding the agreed solution of the status of Kosovo. The reason why this has not happened before the UDI has nothing to do with the objective situation on the ground or with any objective difficulty with finding the agreed solution, but relates only to the intransigent position of the Kosovo Albanian leadership and the Western governments that supported their aspiration for independence. A number of statements made, both by the Kosovo Albanian leaders and Western political leaders, have from the earlier stages onwards adopted the firm stance as to the inevitability of the independence of Kosovo.47 There can thus 44 Statement by Russia’s Ministry of Foreign Affairs on Kosovo, 17 February 2008, available at: <www.mid.ru> (in English). 45 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq. (36, para. 69). 46 C. Borgen, “Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition”, ASIL Insight, 29 February 2008, available at: <www.asil.org>. 47 E.g. the statement by the President of France Nicolas Sarkozy, 14 December 2007, available at: <www.nytimes.com>. be no surprise that the Kosovo Albanian leadership could not have been encouraged to enter into real negotiations with Serbia to find the agreed and mutually acceptable solution. The prospective projection of the outcome of negotiations has undermined the reality of negotiations. It is consequently unsound to assume that there were no alternatives to the UDI; it is more correct to emphasise that these alternatives were willingly excluded by one side of negotiations through the projection of the desired result. Given that the statehood of Kosovo cannot be seen as established on the basis of any applicable international law criteria, its status and standing should be judged by standards that apply to de facto regimes. A de facto regime can be defined as a state-like organism that satisfies the criteria of factual effectiveness of statehood but does not meet the legal requirements thereof. The study of de facto regimes in international law has not been as intensive as the frequency of this phenomenon in the international legal system entitles it, and certainly not much has been said on the subject since Frowein’s ground-breaking study of this subject. Frowein defined a de facto regime as an entity which attempts separating from the parent state and even succeeds in this on a factual plane, but is not generally recognised. The key to the legal analysis of the de facto regime is the focus on the relations between that regime and the states which do not recognise it as a state.48 Given that the Serbian population in Kosovo is against the independence of the province, the possibility of secession of Serb-populated parts of Kosovo from this entity has been raised. The question whether Serb-populated areas of Kosovo can secede from it is a legally moot question. The assumption that a territory can secede from Kosovo is premised on the assumption that Kosovo is an independent state under international law. Although recently the idea of partition of Kosovo has been advanced in some political circles, this is an idea incompatible with the international legal position on the matter. What matters in reality is the question whether the Serb-populated areas of Kosovo can continue under the administration of Serbia, which has to be answered in the affirmative. This implies no partition of Kosovo, unless Serbia’s agreement to this effect is obtained, but only means that in certain areas of Kosovo Serbia may be able to exercise its governmental functions as a matter of fact, as confirmed, for instance, by holding Serbian elections in those areas. 48 J.A. Frowein, Das de facto-Regime im Völkerrecht, 1968, 6-7. 99 Alexander Orakhelashvili IV. PRECEDENTIAL FORCE OF THE UDI IN KOSOVO Given that the legal basis for the independence of Kosovo cannot be established under international law, the issue of whether it can create a precedent for other secessionist entities is hypothetical. However, due to frequent political statements to the effect of the sui generis character of Kosovo, it is worth examining whether, if Kosovo were validly entitled to statehood, its situation could be unique and without precedential impact for other comparable situations. While depending for its validity on the legality of the independence of Kosovo in the first place, the argument of the uniqueness of the Kosovo situation suffers from a conceptual problem, in that it contradicts the idea of equal application of law, and a practical problem, in that it is not shared far beyond the circles of the proponents of the independence of Kosovo. If international law upholds the special nature of the Kosovo case, then it still recognises a right to secession, albeit in these special circumstances. In the first place, one has to prove with evidence that such right exists, which as seen above is impossible. But even if it were possible to prove such right, proving its specialty would be a further challenge in the sense of demonstrating why the relevant international legal right accrues to one entity but not another one. As Franck suggests, if international law involves the right to secession, it is doubtful if that right can be fairly limited to one part of the world.49 The proponents of the independence of Kosovo have never referred to any previous settlement of the independence of a state to justify the independence of Kosovo. They also argue that Kosovo is an unique case and does not set a precedent for any similar entity in the future. The position of the United States government is that, “The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia’s break-up, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as precedent for any other situation in the world today.”50 Franck, see note 18, 160. Statement of Secretary of State Condoleezza Rice, “The U.S. Recognizes Kosovo as Independent State”, 18 February 2008; see also the Department of State document, “Kosovo’s Final Status: A Key to Stability and Prosperity in the Balkans”, 23 January 2008, available at: <www.state.gov>; the same approach was adopted by the Italian government through the statement of the Foreign Minister Massimo D’Alema, 18 February 2008; for the similar position of the United Kingdom, France, Germany and Italy see Reyn49 50 100 This has not been the only approach, however. Russia has expressly disagreed with the United States viewing Kosovo as a unique situation, and predicted the chain reaction that would follow it.51 The Russian Foreign Ministry doubted that, “the American thesis about Kosovo’s case being unique [is] really moral, as it implies that some are supposed to have the right to statehood while it must be denied to others.”52 In general the statement on anything being sui generis must be taken with great caution. Such argument can only be made after articulating the material evidence supporting the special character of the relevant situation. In practice, the resort by academics, legal advisers or politicians to this Latin phrase is often motivated by the lack of anything else that could justify one’s position. The prevailing considerations of legal security, transparency and predictability require giving due consideration to the meaning of the established legal categories in which states members of the international community are used to place reliance. The argument of Kosovo being specific is more inconsistent and problematic than any other argument advanced in this respect, because the argument of specificity necessarily implies applying international law to Kosovo differently from other entities, that is a discrimination as between the entities that aspire statehood. Thus, the idea of a sui generis character of Kosovo goes against not only the available evidence, but also against the non-discriminatory application of international law. Thus, within the international community there is neither legal nor political agreement that, should the independence of Kosovo be taken as a lawful outcome, it would be a unique case without a precedential effect. Consequently, at the political level each relevant group of states should be expected to handle any future case as they deem fit, and without taking olds, see note 2; for the similar statement of the United Kingdom Foreign Secretary David Milliband see “Split EU Meets to Debate Kosovo”, 18 February 2008, available at: <news.bbc.co.uk>. 51 Statement of the Deputy Press-Secretary of the President of Russia, 20 February 2008; Russian Foreign Minister predicted the inevitable chain reaction, cf. Reynolds, see note 2; earlier on, the Russian Foreign Minister warned that if the United States or the United Kingdom would like to see the Kosovo independence as special and tell other secessionist entities that it does not create precedent for them, this will simply not work, RIAN information, 13 December 2007, available at: <www.rian.ru>; Deputy Prime Minister Ivanov was convinced that Kosovo was a precedent and chain reaction will follow; other secessionist entities will ask why they are worse than Kosovars, 19 February 2008, RIAN information, available at: <www.rian.ru>; see also the “Observations by the official representative of the Russian Foreign Ministry”, 20 February 2008, Foreign Ministry information, available at: <www.mid.ru>. 52 Russian Ministry of Foreign Affairs Information and Press Department, “Commentary Regarding a Media Question Concerning Remarks of US Under Secretary of State Nicholas Burns on Kosovo”, 24 February 2008, available at: <www.mid.ru>. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo into account the views of any other group of states. Those other states – in particular those which now object to viewing the case of Kosovo as precedent – may be prevented from challenging the similar treatment of other entities for the very reason that there is no agreed and commonly shared legal position as to the uniqueness of the case of Kosovo. In terms of international law, the reason why Kosovo cannot create a precedent for other secessionist regions is that its claim to statehood is not based on the internationally valid claim to and declaration of independence. Were it otherwise, and were the legal position on this subject matter such as to allow the recognition of the statehood of the territory seceding from another state without its consent, there would be no possibility for precluding Kosovo’s precedential effect. For, if international law were to allow unilateral secession of the territory from the state, it would have to allow this for all territories and entities aspiring this, in whichever part of the world. However, the coherency of the legal argument is not always perfectly obvious for the elites in secessionist entities. What they may regard as crucial is that as a matter of fact Kosovo is administered as independent from Serbia, supported by a substantial number of states and the EU. Thus, the sui generis strategy behind Kosovo may yet backfire to those who designed it. Independently of whether Kosovo achieves independence on terms compatible with international law, other aspirant secessionist entities may well manage consolidating beyond the point of reversal their de facto independence so vehemently opposed to by those who back the independence of Kosovo. Obviously Kosovo enthusiasts will challenge and disapprove such state of things; it is quite another matter how much they will be able to do to reverse it. The essence of this problem is best expressed by the desperate but accurate statement by the Serbian Foreign Minister in response to the statement of the EU Presidency viewing the Kosovo case as unique, “Do any of you honestly think that just by saying that Kosovo is sui generis, you will make it so? That there will be no consequences to the stability and security of the international system, just because you say it won’t?”53 This question has not received the answer so far. Given that there is no agreement as to why Kosovo should be a unique case, which the relevant Western governments no doubt realise, it has to be asked what factors and considerations motivate them into asserting it is a unique case. In particular, what are the factors that make the governments supporting the independence of Kosovo that, given the fierce opposition to this independence by an important number of states and the consequent lack of any agreement on this point, their own view on the legality of this independence still represents international law? One of the motivations behind such stance can be related to the Euro-centrist understanding of international law. European international law has been an idea in the 18th and 19th century presupposing the European superiority in relation to the rest of the world. It has always been an attitude, and never a reality. Its fundamental assumption has been that the European/Western attitudes are inherently better in defining and expressing international law than the attitudes of the rest of the world, and consequently the European/Western nations could impose international legal regulation on the rest of the world, or even exclude non-European nations from the ambit of international law.54 Even over the past several decades, the idea of European international law has been an idea held and cherished by many, but hardly ever expressed in public. Now, in relation to Kosovo, if there is no consensus across the world that the territory can be taken away from the sovereign state and declared independent, but if certain states still insist that their position that it can is in accordance with international law, their attitude must presuppose their attempt and ambition to restructure or reinterpret the foundations of international law despite the lack of agreement within the international community on this point. This suggests that the ideology of European international law may well be the one that reinforces the attitude of Kosovo enthusiasts to consolidate the legal position around Kosovo whether or not other parts of the world agree with this. Not that there is any straightforward evidence that the Western governments try to revive the ideology of European international law at the example of Kosovo (especially given the absence of the recognition of Kosovo by the EU). But it is difficult to think of any other motivation or ideology driving them. The potential of Kosovo to entail chain reaction could be realised in several contexts. The secession of the Republika Srpska from Bosnia and Herzegovina, which is governed, along with the Bosnian government, by the High Representative on the basis of the 1995 Dayton Peace Accord, is currently not at the 53 L. Kubosova, “Serbian FM says he is ashamed by EU’s actions on Kosovo”, 21 February 2008, available at: <www.euobserver.com>. 54 See the analysis in A. Orakhelashvili, “The Idea of European International Law”, EJIL 17 (2006), 315 et seq. 101 Alexander Orakhelashvili centre of the political agenda. However, if over the next few years there will be a relative change in political circumstances, the Republika Sprska could invoke the precedent of Kosovo and declare its independence from the government in Sarajevo. The factual success on the ground of such secession will depend on whether EUFOR will be ready to fight for keeping Bosnia and Herzegovina together and will prevail in that fight, and how much support the potential secessionist unit of the Republika Srpska would get from the outside. That the UDI in Kosovo will certainly provoke further attempts at secession and potentially more international support for these attempts can be seen from the opinion surveys which show that the majority of Europeans consider that Tibet should not be under the Chinese rule.55 Obviously the popular attitude does not directly translate into the governmental policy, which is perhaps even less likely given the status and power of China in international relations. While prediction may not be a profitable exercise, the fact that a majority of the population in the relevant countries tend to favour secessionism makes it more likely that in this or another case the relevant governments may be prepared to back other instances of secession. V. THE RECOGNITION OF KOSOVO AND ITS EFFECT The recognition of Kosovo by a number of states promptly followed the UDI in Pristina. On 18 February 2008, the United States formally recognised Kosovo as a “sovereign and independent State.”56 Several EU Member States, including the United Kingdom, France, Germany and Italy either preceded this or followed the suit. Overall, around thirty states have given their recognition to Kosovo. Serbia recalled ambassadors from several states that recognised Kosovo.57 Recognition was expressly withheld by a number of states, including EU Member States such as Spain, Cyprus, Portugal, Romania, Slovakia and Greece. The EU as a whole was unable to express the attitude of recognising the independence of Kosovo.58 Some other states, such as Israel, decided not to join 55 In Britain 53 percent favour this view, and so do two-thirds of Germans and Italians, see Financial Times, 17 May/18 May 2008. 56 “US Recognizes Kosovo as Independent State”, 18 February 2008, available at: <www.pristina.usmission.gov>. 57 “Serbia recalls ambassador from US”, BBC Information, 19 February 2008, available at: <news.bbc.co.uk>. 58 E. Vucheva, “EU Fudges Kosovo Independence Recognition”, 18 February 2008, available at: <www.euobserver.com>. 102 those recognising Kosovo.59 The principal question is if recognition by third states can influence the legality of the UDI by the seceding entity. It has been contended that Kosovo’s declaration of independence is “coordinated with, and supported by, a significant segment of the international community. It thus stands in contrast to other claims of a “right” to secede.”60 This argument assumes that recognition could command a decisive relevance in determining the validity of the claims of the relevant entity to statehood. The conceptual problem with this view is that it disregards the requirements of statehood if the entity that fails to meet them is nevertheless recognised by third states. At the same time, assuming that the independence of the entity that is recognised by a number of states can be unique and produce no precedential impact is conceptually unsound. Other secessionist entities can be recognised at a later date by third states and under the above thesis they would be unique too, thus producing a chain of “unique” events. The fact that a number of states have recognised the independence of Kosovo is no doubt one of the main arguments in the arsenal of the proponents of that independence. Whatever the relevance of recognition, it is a plain matter of fact that Kosovo has not commanded the prevailing recognition by the international community. While the Security Council refused endorsing its independence, the international community is sharply divided on this point. The concept and relevance of recognition in international law is controversial. Recognition applies to the variety of subjects of status, rights and privileges of legal persons in the international legal system. On the one hand, the significance of recognition is prompted by the absence of a centralised government in the international legal system that would pronounce on the status and rights of the relevant entities. On the other hand, some third-party judgment on those issues could be regarded as indicative of the relevant status and position. For the very reason of the lack of international government, the relevance of recognition should be seen as limited in terms of defining what the status and rights of the relevant entity are. This is even more so, as the factual and legal criteria of statehood are in place for judging whether the relevant entity has achieved statehood. It is questionable whether recognition as such can be viewed as a magic tool for creating a state or for 59 60 RIAN Information, 19 February 2008. Borgen, see note 45. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo consolidating the statehood of the entity which has no entitlement to it. Recognition merely follows the lawful establishment of statehood. It is not a criterion of statehood and does not impact whether or not the relevant entity is actually entitled to it. Crawford’s reasoning clarifies the non-conclusive nature of recognition, “if State recognition is definitive then it is difficult to conceive of an illegal recognition and impossible to conceive of one which is invalid or void. Yet the nullity of certain acts of recognition has been accepted in practice, and rightly so; otherwise recognition would constitute an alternative form of intervention, potentially always available and apparently unchallengeable.” This also entails that, “the test for statehood must be extrinsic to the act of recognition.” As Crawford suggests, individual state pronouncements on statehood are not constitutive of the legality of that statehood.61 The presence of recognition cannot preserve the status of the relevant entity either. To illustrate, South Vietnam had gathered several dozens of recognitions, was a member of specialised agencies of the United Nations, and over two decades endorsed by the UN General Assembly as a state eligible for the membership of the UN.62 But, having lasted for nearly two decades, South Vietnam disappeared subsequently without those recognitions having mattered. In a different but related context, the ICJ proclaimed East Timor as a unit of selfdetermination against the background of its annexation by Indonesia having been recognised by a number of states.63 The argument that the recognition of Kosovo by third states counts as a material factor in the legal basis of its independence is premised on the thesis that recognition is constitutive. A declaratory approach to recognition would imply that secession has to be lawful and valid in the first place, and recognition by third states would then acknowledge that secession. It is incidental to this approach that recognition cannot be validly given to the entity whose independence is not compatible with international law. In other words, recognition cannot constitute an independent state.64 Crawford, note 11, 21. J.N. Moore, “The Lawfulness of Military Assistance to the Republic of Viet-Nam”, AJIL 61 (1967), 1 et seq. (24 et seq.). 63 ICJ Reports, 1995, para. 36. 64 Although Musgrave argues that accepting the declaratory theory necessarily implies acceptance of the “internal theory” of secession (Musgrave, see note 11, 195), this is not a necessary incidence of the declaratory theory, which can be brought into play also with regard to the entities which validly secede in compliance with international law. 61 62 The constitutive theory has long been recognised as archaic and it has no visible support in state practice.65 In terms of recognising Bosnia-Herzegovina and Croatia in 1991, the EU is seen as having attempted to refer to the constitutive theory, given that the two entities had not then fulfilled the requirements of statehood.66 However, the Badinter Commission clearly emphasised that none of these constituted the instances of recognition of secessionist entities. On the other hand, as Frowein correctly emphasises, the declaratory theory of recognition cannot be of utility either because it cannot explain the legality of a de facto regime.67 Unless one views oneself as a legislator, recognition of statehood by third states can relate to what is lawful in the first place.68 Dugard and Raic argue that while secession is discouraged on the account of the tendency to place territorial integrity above selfdetermination, the collective recognition of the seceding entity can be granted by the European Union.69 But according to the collective recognition some distinctive significance that individual state recognition does not possess presupposes that while individual state recognition cannot constitute the state, collective recognition can. Thus, collective recognition aspires having the legislative impact, which is a claim anti thetical to the basic character of the international legal order. In reality the validity of collective recognition is governed by the same criteria as that by individual states. The opposite result would necessarily be premised on viewing regional arrangements such as the EU as elements of an international government that does not exist. This point is anyway moot in the Kosovo context. The EU has not itself recognised Kosovo as an independent state. It is unclear whether deploying EULEX can be seen as implied recognition, as it has to work with what Kosovars consider as independent state institutions, in other words support the entity in exercising sovereign powers. The answer to this question depends on the mandate of EULEX and the type of powers and competences it possesses.70 Given that the recognition of Kosovo cannot constitute it as a state, nor relate to what is already the state on international legal grounds, such recognition is illegal. The grounds for such illegality can be premCrawford, see note 11, 24 et seq. Musgrave, see note 11, 206. 67 Frowein, see note 47, 36. 68 It is quite another matter that the parent state can itself recognise the independence of the secessionist entity and thus waive its sovereignty and legalise what otherwise has no legal basis. 69 Dugard/ Raic, see note 11, 134. 70 See below under VI. 2. 65 66 103 Alexander Orakhelashvili ised either on the duty not to recognise illegal entities, or the refusal of the parent state to let Kosovo become independent. Dugard has formulated the modern doctrine of non-recognition based on jus cogens, having subsumed within this doctrine the cases of non-recognition such as Rhodesia, Namibia, South African homelands, Palestine and the Turkish Republic of Northern Cyprus. When the practice of states and organisations refers to a certain entity or situation by using the language of “illegality”, “invalidity” or “nullity”, this is the evidence that the recognition is withheld from an entity not because that entity lacks the ingredients of statehood, but because it is illegally brought about.71 South African homeland-states arguably met the requirements of statehood laid down in the Montevideo Convention, but no state except South Africa recognised them. Similarly, “A cluster of fundamental principles inherent in the two fundamental norms of the prohibition of the use of force and the right to selfdetermination provide a legal basis for the refusal of the United Nations to recognise Israel’s sovereignty over East Jerusalem.”72 Jus cogens gives a new doctrinal coherence to the doctrine of nonrecognition, formulating it as follows, “An act in violation of a norm having the character of jus cogens is illegal and is therefore null and void. This applies to the creation of States, the acquisition of territory and other situations, such as Namibia. States are under a duty not to recognise such acts.” This is so, because, “Jus Cogens is a central feature in the modern doctrine of nonrecognition as the violation of a norm having the character of jus cogens is a prerequisite for the illegality that results in the nullity and nonrecognition.”73 Non-recognition applies to situations involving nullity for conflict with jus cogens.74 In all these cases the invalidity of titles as confirmed by UN organs is implementing and declaratory of the jus cogens nullity, not just a discretionary action.75 The link between jus cogens and nonrecognition of illegal entities has been fortified in the ILC’s articles 40 and 41 on State Responsibility.76 J. Dugard, Recognition and the United Nations, 1987, 130 et seq. Dugard, see above, 100, 115. 73 Dugard, see note 70, 132, 135, 137. 74 J. Dugard, “Collective Non-Recognition: The Failure of South Africa’s Bantustan States”, in: Boutros Boutros-Ghali – Amicorum Discipulorumque Liber – Peace, Development, Democracy, Vol. I (1998), 383 et seq. (402). 75 Dugard, see above, 400 et seq. 76 Report of the International Law Commission on the Work of its Fiftythird 71 72 104 Whether the duty not to recognise applies to the unilateral declaration of independence in Kosovo depends on whether this process is seen as produced by the breach of a peremptory norm. This question is contingent on whether the armed attack by NATO states on the Federal Republic of Yugoslavia in 1999 can be seen as a breach of jus cogens, and also whether the armed attack in question was immediately responsible for the eventual UDI in Kosovo. As for the first part of this question, it is clear that the claim as to the legality of “humanitarian intervention” has never been approved by the international community. The reaction of the international community to the claims that NATO states were entitled to attack the FRY on humanitarian grounds to protect the Albanian population has been to prevailingly reject the legality of humanitarian intervention.77 Thus the NATO attack remains a breach of Article 2 (4) of the United Nations Charter, customary law prohibition of the use of force, and of jus cogens. As for the second part of the question, in principle, it is difficult to see how the current factual state of things would be brought about had the NATO states not attacked the FRY in 1999. But the NATO states have never expressly claimed, in the process of the 1999 armed attack, that Kosovo should be allowed to secede from Serbia, and the principal authors of the 1999 attack have voted for S/RES/1244 which reaffirmed the territorial integrity of the FRY, and a fortiori of Serbia. Not until the Ahtisaari Plan did those states express themselves in support of the independence of Kosovo. It seems that the question here is solely that of the assessment of facts. If the view is taken that the NATO attack was never originally meant to affect the territorial integrity of the FRY and thus lead to the independence of Kosovo, then the duty of non-recognition does not apply in its original version of the effect of peremptory norms. This view can be reinforced by the fact that the states which intervened against the FRY in 1999 have subsequently confirmed their commitment to its territorial integrity by voting on S/ RES/1244. In such case the only factor that precludes lawful recognition of the independence of Kosovo is the objection to that by Serbia. If, however, the view is taken that the NATO attack in 1999, in breach of the UN Charter and the relevant customary international law as part of jus cogens is immediately responsible Session (2001), GAOR 56th Sess., Suppl. No. 10, Doc. A/56/10. 77 See on this A. Orakhelashvili, “Legal Stability and Claims of Change: The International Court’s Treatment of Jus ad Bellum and Jus in Bello”, Nord. J. Int’l L. 75 (2006), 371 et seq. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo for the ultimate UDI in Kosovo, then the UDI in Kosovo is directly subject to the duty of non-recognition as envisaged in the ILC articles 40 and 41 on State Responsibility. In practical terms, which of these two options is correct does not make an essential practical difference on the ground. Given that Serbia persistently objects to the independence of Kosovo, the legality of recognition is precluded in any case. Against this background, any recognition of the independence of Kosovo is an internationally wrongful act and generates the obligation to withdraw it. The recognition of fundamental illegalities is always subject to revocation of recognition.78 VI. COMPATIBILITY OF THE PROCESSES IN AND AROUND KOSOVO WITH UN SECURITY COUNCIL RESOLUTIONS 1. Compatibility of the Independence of Kosovo with S/RES/1244 The argument of compatibility of the independence of Kosovo with S/RES/1244 of 10 June 1999 presupposes the permissibility of multiple interpretations of this resolution. The principles of interpretation of Security Council resolutions are essentially the same as those applicable to treaties under articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.79 Even if Security Council resolutions are not formally treaties, they are in substance agreements between states. In addition, Security Council resolutions derive their binding force from the treaty clause - Article 25 of the United Nations Charter. The link between resolutions and the treaty-based duty to obey them under Article 25 necessarily requires viewing the duty to comply with resolutions as sacred as the duty to observe treaty obligations in good faith (pacta sunt servanda). Consequently, the divergence of interpretations of Security Council resolutions is as systemically controversial as the divergent mutually exclusive interpretation of the treaty. The argument that there may be two divergent interpretations of a resolution is in essence the argument that Article 25 prescribes two mutually exclusive legal outcomes, which is absurd by itself. In order not to undermine the duty to carry out the Council’s resolutions under Article 25, it is necessary to interpret these resolutions in good faith and 78 I. Brownlie, International Law and the Use of Force, 1963, 421 et seq.; F.A. Mann, “The Consequences of an International Wrong in National and International Law”, BYIL 48 (1976-77), 1 et seq. (41). 79 On the interpretation of resolutions see Orakhelashvili, see note 10, Max Planck UNYB. according to the plain meaning of words used in their text. S/RES/1244 has directly and expressly preserved the territorial integrity of the FRY. Well before the UDI in Pristina, its incompatibility with S/RES/1244 was raised, among others, by the Russian government against the background that the UN Security Council was not going to assent to the independence of Kosovo. Attention was drawn to the attempts to interpret the Security Council resolutions as if they justified the independence of Kosovo. The Russian government objected to the attempt to unilaterally interpret resolutions.80 The US Assistant Secretary of State Rosemary Di Carlo specified that admitted that the United States and Russia “might have different interpretations” of S/RES/1244, “We agree that 1244 remains in effect. But we see 1244, as I said, as a call for a political process. We see that the status of Kosovo was left totally open and did not dictate that Kosovo should be independent or should not be independent. The resolution calls for presences – international presences – to assist Kosovo in its development.”81 This statement bypasses the express preservation of the territorial integrity of Serbia under this resolution. According to the Foreign Secretary David Miliband of the United Kingdom, S/RES/1244, “created a political process as well as establishing an international regime for Kosovo within the territory of Serbia. It was about restoring peace and security. Resolution 1244 does not determine or constrain the final status process, nor exclude outcomes. But it does envisage a final status process and it needs to be brought to a conclusion.” Furthermore, he asserted that, “It is important not to be confused by 1244’s references to the ‘sovereignty and territorial integrity of the Federal Republic of Yugoslavia (now Serbia)’. This is a qualified preambular reference which in its context clearly refers only to the interim phase of administration in Kosovo.”82 The Foreign Secretary’s statement seems to argue that while the Security Council preserved the territorial integrity of Yugoslavia and Serbia then and there, 80 Statement of Foreign Minister S. Lavrov, 10 December 2007, available at: <www.rian.ru>; a similar declaration was made by the Russian Representative in the Troika, emphasising that the proclamation of independence would contradict S/RES/1244 and in such case Russia would demand annulling it, 10 December 2007. On attempts of unilateral interpretation of Security Council resolutions in general see J.A. Frowein, “Unilateral Interpretation of Security Council Resolutions – A Threat to Collective Security?” in: V. Götz/ P. Selmer/ R. Wolfrum (eds), Liber Amicorum Günther Jaenicke – Zum 85. Geburtstag, 1999, 97 et seq. 81 Available at: <http://www.interfax.com/17/375120/Interview.aspx>. 82 D. Miliband, “Kosovo: Is it legal?”, available at: <www.fco.gov.uk>, 17 February 2008. 105 Alexander Orakhelashvili it left open the option of disrupting that territorial integrity at a certain point in the future. At the same time, it is inherent in the Foreign Secretary’s statement that there was no specification of who and when it should be decided whether such disruption of territorial integrity was necessary. Was it to be the Council itself, or someone else? Leaving aside the implausibility of such interpretation in the face of the straightforward division of the Council membership views on this subject, it is also implausible that the Council would have intended something along the lines formulated by the Foreign Secretary. Even if the Council had only intended to preserve Serbia’s territorial integrity for a certain period of time, having not pronounced on what is supposed to happen afterwards, the very fact of recognition that the relevant territory, even for a certain unspecified period of time, is part of Serbia, necessarily implies the affirmation that if that territory will ever stop legally being a part of Serbia, the latter’s consent has to be obtained, for the very reason that for the time being Serbia remains the territorial sovereign. But the above is just a matter for speculation. The truth of the matter is that S/RES/1244 contains no element of provisional sovereignty of Serbia over Kosovo. It just affirms what otherwise is the case under international law. No temporal limitation follows from the words used by the Security Council and none should be read in. It should also be considered what meaning the Member States attributed to Serbia’s territorial integrity when S/RES/1244 was adopted. The views of individual Member States at the time of adoption of the resolution, if compatible with the text thereof and not contradicted by other Member States, could be a valid factor in the interpretation of Security Council resolutions. Russia’s view was that the resolution “clearly reaffirm[ed] the commitment of all States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.”83 China stood “for peaceful settlement of the question of Kosovo on the basis of respect for the sovereignty and territorial integrity of the Federal Republic of Yugoslavia;”84 in addition, China explained its abstention from vetoing the resolution thus, “in view of the fact that the Federal Republic of Yugoslavia has already accepted the peace plan, that NATO has suspended its bombing in the Federal Republic of Yugoslavia, and that the draft res83 84 Doc. S/PV/4011, 10 June 1999, 7. Ibid., 8. 106 olution has reaffirmed the purposes and principles of the United Nations Charter, the primary responsibility of the Security Council for the maintenance of international peace and security and the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, the Chinese delegation will not block the adoption of this draft resolution.”85 In other words, S/RES/1244 was adopted simply because it preserved the territorial integrity of the FRY and subsequently Serbia. If the resolution meant affirming Serbia’s territorial integrity only for a certain time period, China would not have let it through, especially because it would have created a precedent for secession which China has more than one reasons to fear. Now, if the Foreign Secretary’s approach is right, China in fact has approved the eventual secession of Kosovo, which is counterfactual. Similarly, Argentina voted for S/RES/1244 with the conviction that, “it lays the foundation for a definitive political solution to the Kosovo crisis that will respect the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.”86 In other words, the resolution did not intend prejudicing the territorial integrity of Yugoslavia at any point of time. Against this background, no state in the Security Council, including the United Kingdom, has voiced any disagreement with this approach, having been well aware of the preservation of the FRY’s territorial integrity as the cardinal condition for that resolution having ever been adopted. As for the external evidence, S/RES/1785 of 21 November 2007, adopted around the time when the calls for Kosovo’s independence got intensified, reaffirmed the Security Council’s, “commitment to the political settlement of the conflicts in the former Yugoslavia, preserving the sovereignty and territorial integrity of all States there within their internationally recognized borders.” In other words, it was the Security Council’s intention to preserve the territorial integrity of all states including Serbia in the context of any territorial settlement adopted in the Balkans. This was in its turn reflective of the affirmation of the uti possidetis juris principle after the dissolution of the SFRY. Even within the EU, there is some acceptance of the fact that the UDI is not compatible with S/RES/1244. As the Slovenian President of the EU Dmitrij Rupel 85 86 Ibid., 9. Ibid., 19. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo acknowledged, “There is concern about how to reconcile Resolution 1244 with Kosovo’s proclamation of independence.”87 A culminating point of schizophrenia is embodied in para. 12 of the UDI adopted by the parliament in Pristina, which states that, “we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including resolution 1244 (1999).” 2. The Legality of the EU Presence in Kosovo The EU acknowledged, through the Council Joint Action, the need of, “ensuring a seamless transition between the United Nations Interim Mission in Kosovo (UNMIK) and the EU crisis management operation in Kosovo on the day of transfer of selected tasks from UNMIK to the EU crisis management operation following the adoption of a United Nations Security Council Resolution.”88 This was followed by the deployment in Kosovo of the EU rule of law mission (EULEX). The EULEX mission has been established, among others, to, “(a) monitor, mentor and advise the competent Kosovo institutions on all areas related to the wider rule of law (including a customs service), whilst retaining certain executive responsibilities; (b) ensure the maintenance and promotion of the rule of law, public order and security including, as necessary, in consultation with the relevant international civilian authorities in Kosovo, through reversing or annulling operational decisions taken by the competent Kosovo authorities; (c) help to ensure that all Kosovo rule of law services, including a customs service, are free from political interference; (d) ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law, including, where appropriate, by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges or independently, and by measures including, as appropriate, the creation of cooperation and coordination structures between police and prosecution authorities; Information of the Serbian Foreign Ministry 26 April 2008, available at: <http://www.mfa.gov.yu/Pressframe15.htm>. 88 Council Joint Action 2007/334/CFSP, 14 May 2007, Official Journal of the European Union, 15 May 2007, L 125/29, preambular paragraph (4). 87 (e) contribute to strengthening cooperation and coordination throughout the whole judicial process, particularly in the area of organised crime; (f) contribute to the fight against corruption, fraud and financial crime.”89 These functions and powers, especially the one mentioned in para. (b) above, seem to reflect the incidences of so-called “supervised” or “controlled” independence of Kosovo. In other words, Kosovo under this model enjoys no full sovereignty. EU Commission President Jose Manuel Barroso argued that the sending of the EU mission to Kosovo had not contradicted international law in general and S/ RES/1244 in particular, because the “relevant international organisations” are authorised to establish an international civil presence in Kosovo and the mission could be there unless the Security Council would decide otherwise.90 The Serbian position has been and remains that without the authorisation of the Security Council, EULEX cannot lawfully be deployed in Kosovo. Along the similar lines, and even before the UDI and deployment of EULEX, the government of Cyprus emphasised that the deployment of the EU mission in Kosovo was not compatible with S/RES/1244.91 The same position has been repeatedly expressed by Russia, “the EU is unilaterally without any authorization from the UN Security Council sending a rule of law mission to Kosovo. It is, mildly speaking, a bitter irony in this name because the rule of law mission is being sent there in violation of supreme law, in violation of inter national law. We are being told that resolution 1244 is the basis for sending the EU mission, and that the unilateral proclamation of Kosovo’s independence does not run counter to this resolution because it speaks of a transition period and supposedly this transition period is over. That’s not true. Although resolution 1244 really speaks of a transition period, this transition period in accordance with this resolution should last until the parties reach, and I quote, a “final political settlement.” Everybody knows that the talks designed to reach that political settlement were artificially interrupted thanks to outside interference. The territorial integrity of Serbia was confirmed not only by resolution 1244, adopted in 1999, but also quite recently by another UNSC resolution which was adopted at 89 Article 3, Council Joint Action 2008/124/CFSP, 4 February 2008, Official Journal of the European Union, 16 February 2008, L 42/92. 90 Barroso calls the EU mission to Kosovo legal, 21 February 2008, Xinhua information, available at: <www. xinhuanet.com>. 91 Statement by the Foreign Minister of Cyprus, 14 December 2007. 107 Alexander Orakhelashvili the end of November 2007.”92 The Serbian Foreign Ministry too specified that, “Although Brussels made the decision to deploy its mission in the province in early February, it has not received an official invitation for this from the UN Secretary-General – necessary under Resolution 1244, that regulates any international presence in Kosovo post-1999.”93 The Council Joint Action of 4 February 2008 establishing EULEX refers to S/RES/1244 as its basis.94 The EU Council especially refers to the phrase in this resolution (op. para. 10) in which the Security Council, “Authorise[d] the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo...” But however this phrase is stretched, it refers to operations established by the UN Secretary-General, that is to say operations that are qualitatively UN operations, as opposed to the operations of other organisations that are approved, or acquiesced into, by the United Nations organs. S/RES/1244 does not include the reference to the establishment of civilian peace operations by the EU as such. When the UN Security Council intends to authorise the establishment of EU operations in Chapter VII situations, it expressly grants the requisite authorisation, as was the case with the establishment of EUFOR in Bosnia to replace the NATO-led Stabilisation Force, or the EU mission in the Democratic Republic of the Congo.95 The truth of the matter remains that EULEX has been deployed in Kosovo without the sanction of the UN Security Council. Its presence there is not compatible with international law unless it will either be consented to by Serbia or directly approved by the Security Council. Whether or not the EU’s reference to S/RES/1244 as the basis of EULEX is correct, in any case it constitutes the acknowledgment on the side of the EU that there has been no other legal basis for such operation. Neither general international law, nor the legal framework and competence of the EU provide for the power to establish operations like EULEX in situations like Kosovo. The process of establishment of EULEX reveals further problems not only in terms of the status of Kos92 “Kosovo Tool Kit for Separatists”, BBC Information, available at: <inews. bbc.co.uk>, 20 February 2008; Transcript of Remarks and Replies to Media Questions by Russian Minister of Foreign Affairs Sergey Lavrov at a Joint Press Conference with the Turkish Minister of Foreign Affairs Ali Babajan, Moscow, February 20, 2008, available at: <www.mid.ru>. 93 Serbian Foreign Ministry Information, see note 86. 94 Council Joint Action, see note 88. 95 See on this A. Orakhelashvili, “The Legal Framework of Peace Operations by Regional Organisations”, International Peacekeeping: The Yearbook of International Peace Operations 11 (2006), 111 et seq. 108 ovo but also the position of the EU to it. According to article 10 of the Joint Action of 4 February 2008, “The status of EULEX KOSOVO and its staff, including the privileges, immunities and further guarantees necessary for the completion and smooth functioning of EULEX KOSOVO, shall be agreed as appropriate.” It is unclear how these privileges and immunities should be “agreed” and with whom. The EU as an international organisation enjoys no immunity unless conferred to it on the basis of the treaty with the relevant territorial state. An international organisation has no power to grant immunity to itself unilaterally. If, on the other hand, the EU concludes an agreement with the Kosovo authorities with a view to achieving this goal, this will be tantamount to the recognition of Kosovo as a state on the EU’s behalf and in its name. As mentioned above, the EU was unable to adopt a decision to recognise Kosovo and any agreement with the Kosovo authorities will be an attempt to imitate what has not been granted. Thus, while the Council Joint Action of 4 February 2008 prescribes that the privileges and immunities of EULEX should be secured, it does not specify how this should be achieved and in fact this cannot be achieved in legal terms. 3. The Legal Status of the UN Mission in Kosovo Despite the UDI in Pristina and the EU’s deployment of the EULEX mission, the UN Interim Administration Mission in Kosovo (UNMIK) is still bound to continue its activities in Kosovo as it has been allocated this task under S/RES/1244. The EU has acknowledged that the UN will remain fully engaged in Kosovo until the end of S/RES/1244.96 On the ground UNMIK does not seem to be discharging its responsibilities fully and seems to take attitudes under the influence of political pressure from the governments that support the independence of Kosovo. This has been evidenced by the negative attitude of UNMIK to the holding of Serbian elections in Kosovo in May 2008. According to op. para. 11 (c) of S/RES/1244, the main responsibilities of UNMIK include, “Organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections.” The Head of UNMIK Joachim Rücker, being the Special Representative of the Secretary-General for Kosovo, refused to organise these elections by asserting 96 Council Joint Action 2006/304/CFSP, 10 April 2006, Official Journal of the European Union, 26 April 2006, L 112/19. Statehood, Recognition and the United Nations System: a Unilateral Declaration of Independence in Kosovo that UNMIK was the only entity to allow elections. This follows, among others, from the attitude of the current head of UNMIK that favours the independence of Kosovo.97 However, the above passage from the resolution does not allocate any monopoly to UNMIK in deciding to allow or not to allow the holding of elections. It has merely to organise and oversee elections. VII. PROSPECTS FOR THE FUTURE: SETTLEMENTS OF CONFLICT The above analysis has demonstrated that Kosovo has not made a valid case for independence under international law. Still, though illegal, Kosovo continues as a factual reality, and enjoys the support of a number of influential governments. It is thus worth focusing on the prospects of future developments of the Kosovo situation. One option is that Serbia will, at the end of the day, recognise the independence of Kosovo and the situation will be resolved. Serbia has been pressured to do so by the EU and the government of the United States, in particular in exchange of closer relations with and possible accelerated membership in the EU. While such deal cannot be excluded, it appears highly unlikely, as currently no Serbian government can be envisaged to assent to the independence of Kosovo. The second option is that of the protracted de facto situation on the ground, occasionally accompanied by local conflicts, frictions and crises. The third option is that of the use of force by Serbia to recover the effective control over Kosovo. In this respect, it matters whether the modern jus ad bellum permits Serbia to use force. There have been reports of the Serbian government stating that it would not send troops into Kosovo to recover the territory.98 This was arguably understood as the waiver by Serbia to use force in this context.99 However, the Serbian statement only means that under current circumstances, including the unwillingness to confront in combat NATO troops, Serbia is not going to send its troops to recover Kosovo. But this statement does not mean that Serbia gives up its right to use force to 97 See Rücker, “Local Election Results Will be Invalid”, Serbian Foreign Ministry, 8 May 2008, <www.mfa.gov.yu>; see further Section VII. below. See also the letter of 17 April 2008 from the Serbian Minister Slobodan Samardzic to Rücker, in which the Serbian Minister observes that despite Rücker’s professing of taking the neutral political stance, he did not actually remain neutral, see <www.kosovocompromise.com>. 98 AFP Information, 14 December 2007. 99 See the statement by the Foreign Minister of Germany Steinmeier, “Kosovo erklärt sich unabhängig – EU Außenminister beraten die Lage”, 18 February 2008. restore its territorial integrity. In general, waiver or renunciation of a right cannot be presumed, and the text allegedly containing waiver should be interpreted strictly so that nothing is presumed if not following from the text of the relevant statement.100 The crucial question is whether and how far Kosovo as a de facto regime is legally protected from the use of force. As Kosovo legally remains part of Serbia, the use of force by Serbia to restore its government and authority over Kosovo would not in principle contradict Article 2 (4) of the UN Charter, which prohibits the use of force only in international relations. Sir Hersch Lauterpacht has observed that the territory of the unrecognised state is not protected from the invasion by virtue of the prohibition of the use of force.101 As Frowein emphasises, the de facto entity is not legally protected from the invasion of the state from which it secedes. The use of force by the latter state would not be a breach of the territorial integrity of another state.102 As such use of force would not be that in international relations of states, the de facto entity could not be protected by third states against its parent state.103 Frowein also covers the issue of the use of force against the de facto entity with an internationalised status and admits that in such cases the prohibition of the use of force can protect such de facto entities,104 but understandably his analysis does not cover any entity with the position comparable to that of Kosovo. In addition, the extension of the Article 2 (4) prohibition to de facto entities only on the basis of the rationale of this prohibition to safeguard peace is not free of problems, because Article 2 (4) is by its clear wording limited to international relations of states. As S/RES/1244 is binding and continues being in force, Serbia presumably has no right to undermine the international administration established by the UN resolution. If, however, the UN administration were to be removed, or the factual state were to be established that would frustrate the aims of the UN presence under S/RES/1244, the deal under this resolution would collapse and Serbia could use force in response to the material breach of the resolution. To illustrate, the head of UNMIK has refused to recognise the legality of Serbian elections held in parts of Kosovo. While it is not clear at all that this situation For an analysis of the doctrine and practice on waiver, Orakhelashvili, see note 10, 2006, Chapter 11; id., see note 22, Chapter 13. 101 Lauterpacht, see note 26, 52. 102 Frowein, see note 47, 38. 103 Ibid., 39. 104 Ibid., 67 et seq. 100 109 Alexander Orakhelashvili calls for recognition, the refusal to recognise is clearly premised on the assumption that Kosovo is no longer part of Serbia, which attitude the UN officials are precluded from taking under S/RES/1244. Such practice, if multiplied and perpetuated, could lead to a situation that the legal position created by the resolution is no longer working on the ground; in other words, there is a material breach of this resolution. If carried through on a substantial scale, such practice could entitle Serbia at the relevant point of time to declare that S/RES/1244 is no longer in force, and in case of need proceed with the coercive action with a view to securing its territorial integrity. In short, whether and when Serbia can use force to recover Kosovo depends on the process of the observance of S/RES/1244 on the ground, that is the compliance of the only international legal basis of the internationalisation of the Kosovo situation and opposable to Serbia and all states. In practical terms, all depends on how long the NATO troops will be able to stay in Kosovo, and in the case of possible armed confrontation, to what extent they will be willing to engage in full-scale hostilities. VIII. CONCLUSIONS The preceding analysis has demonstrated that the UDI in Kosovo contravenes international law and it cannot be validly recognised. Given the unrelenting opposition to the independence of Kosovo by Serbia and a number of other states, and the structure of international law being what it is, the validity of this independence can hardly be expected to consolidate. However, the argument of reality has been invoked in favour of accepting the independence of Kosovo. As US Secretary of State Condoleezza Rice put it, “if you don’t deal with that reality, you’re only going to sow the seeds of considerable discontent and considerable instability.”105 But there are limits on the realist argument. As one of the fathers of political realism Henry Kissinger pointed out, “stability… has commonly resulted not from a quest of peace but from a generally accepted legitimacy”, which, “means no more than an international agreement about the nature of workable arrangements and about the permissible aims and methods of foreign policy.” “Kosovo: Russian Ambitions and American Mistakes”, RIAN information, 14 December 2007, available at: <www.rian.ru>. 105 110 Legitimacy “implies the acceptance of the framework of the international order by all major powers”, so that none of them persist with policies undermining the undesirable settlement.106 To apply this reasoning to Kosovo, the current situation on the ground cannot be expected to be stable either in regional or global terms. At the regional level, Serbia remains opposed to the independence of Kosovo; at the global level, the independence of Kosovo is opposed by such major players as India, China and Russia. Thus both at regional and global level the independence of Kosovo will continue to encounter the opposition and counter-action that will adversely impact on the stability of its position. Presumably the sponsors of the Kosovo independence have understood from the outset that the entity whose independence they supported will neither gain the general recognition of the international community, nor will it be admitted to the United Nations. The realist argument has also the potential of backfiring if the Kosovo-enthusiast states will face the secession of other entities in different parts of the world in the context over which they will have little realistic influence. In addition, if the realist argument holds the key to the problem, then the legal criteria of statehood and recognition are no longer crucial. Whatever the statehood entitlement and recognition of other secessionist entities, the use of the reality argument in favour of Kosovo’s independence inevitably paves the way for consolidating the claims of those other entities to independence. Consequently, those who use the reality argument today at the example of Kosovo, should prepare themselves to hearing the same argument in the context of other secessionist entities whose independence they do, or would, vehemently oppose. Being realistic about the reality will never do any harm. 106 H. Kissinger, A World Restored: Metternich, Castlereagh and the Problems of Peace 1812-1822, 1957, 1 et seq. This Press release is issued by the Registry of the European Court of Human Rights and is available from the following web-sit­e: http://cmiskp.echr.coe.int/tkp197/search. asp?skin=hudoc-pr-en EUROPEAN COURT OF HUMAN RIGHTS GRAND CHAMBER JUDGMENT1 VARNAVA AND OTHERS v. TURKEY (application nos.16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90) Disappearances During the 1974 Conflict in Northern Cyprus Continuing violation of Article 2 (right to life) Continuing violation of Article 3 (prohibition of inhuman or degrading treatment) Continuing violation of Article 5 (right to liberty and securit­y) in respect of Eleftherios Thoma and Savvas Hadjipantel­i No violation of Article 5 in respect of the other seven missin­g men Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 12,000 euros (EUR) per application in respect of non-pecuniary damage and EUR 8,000 for costs and expenses. (The judgment is available in English and French.) PRINCIPAL FACTS The applications were introduced before the Court in the name and on behalf of 18 Cypriot nationals, nine of whom had disappeared during military operations carried out by the Turkish Army in northern Cyprus in July and August 1974. The nine other applicants are or were relatives of the men who disappeared. Among the nine people who disappeared, eight were members of the Greek-Cypriot forces that had attempted to oppose the advance of the Turkish army. According to a number of witness statements, they had been among prisoners of war captured by the Turkish military. The ninth person, Mr Hadjipanteli, a bank employee, was taken for questioning by Turkish soldiers on 18 August 1974. His body, which bore several bullet marks, was found in 2007 in the course of a mission carried out by the United Nations Committee of Missing Persons (CMP). 1 Grand Chamber judgments are final (Article 44 of the Convention) The Turkish Government disputed that these men had been taken into captivity by the Turkish Army. They submitted that the first eight were military personnel who had died in action and that the name of the ninth one did not appear on the list of Greek-Cypriot prisoners held at the stated place of detention, inspected by the International Red Cross. The Cypriot Government stated, however, that the nine men had gone missing in areas under the control of the Turkish forces. COMPLAINTS, PROCEDURE AND COMPOSITION OF THE COURT The applicants alleged that their relatives had disappeared after being detained by Turkish military forces in 1974 and that the Turkish authorities had not accounted for them since. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 4 (prohibition of forced labour), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private and family life), 10 (freedom of expression), 12 (right to marry), 13 (right to an effective remedy) and 14 (prohibition of discrimination). The applications were lodged with the European Commission of Human Rights on 25 January 1990. They were joined by the Commission on 2 July 1991, and declared admissible on 14 April 1998. They were transmitted to the Court on 1 November 1998. In its judgment of 10 January 2008 (“the Chamber judgment”), the Chamber held unanimously that there had been violations of Articles 2, 3 and 5 of the Convention and that no separate issues arose under Articles 4, 6, 8, 10, 12, 13 and 14 of the Convention. It also held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. 111 Varnava and Others V. Turkey On 7 July 2008, under Article 432 of the Convention the case was referred to the Grand Chamber at the Turkish Government’s request. The Cypriot Government submitted written observations and so did the organisation REDRESS which, in September 2008, was granted leave to intervene in the written procedure. A public hearing took place at the European Court of Human Rights in Strasbourg, on 19 November 2008. The Government challenged the Court’s jurisdiction to examine the case on several counts. First, they submitted, among other things, that there was no legal interest in determining these applications given that the Court had already decided on the question of the disappearances of all missing Greek Cypriots in the fourth inter-State case. Secondly, the applications fell outside of the Court’s temporal jurisdiction given that they all related to facts which had occurred before Turkey’s acceptance of the right of individual petition on 28 January 1987. Lastly, too much time had lapsed between the facts and the introduction of the applications which had to be declared inadmissible for not being taken before the Court within six months after Turkey’s acceptance of the right to individual petition. Judgment was given by a Grand Chamber of seventeen judges composed as follows: Jean-Paul Costa (France), President, Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Anatoly Kovler (Russia), Vladimiro Zagrebelsky (Italy), Lech Garlicki (Poland), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Ineta Ziemele (Latvia), Mark Villiger (Liechtenstein), Päivi Hirvelä (Finland), Luis López Guerra (Spain), Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”), Nona Tsotsoria (Georgia), Ann Power (Ireland), 2 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. 112 Zdravka Kalaydjieva (Bulgaria), judges, Gönül Erönen (Turkey), ad hoc judge, and Erik Fribergh, Registrar. DECISION OF THE COURT Preliminary objections by the Government Legal interest The Court first noted that for an application to be substantially the same as another which it had already examined it had to concern substantially not only the same facts and complaints but be introduced by the same persons. While the fourth inter-State case had indeed found a violation in respect of all missing persons, the individual applications allowed the Court to grant just satisfaction awards for pecuniary and nonpecuniary damage suffered by individual applicants, and to indicate any general or individual measures that might be taken. Satisfied that a legal interest remained in pursuing the examination of these applications, the Court rejected the Government’s objection. Temporal jurisdiction The Court noted that the applicants had specified that their claims related only to the situation pertaining after 28 January 1987 (namely the date of Turkey’s acceptance of the right of individual petition). The Court held that obligation to account for the fate of the missing men by conducting an effective investigation was of a continuing nature and even though the men had been missing for over 34 years without any news, this obligation could persist for as long as the fate of the missing persons was unaccounted for. Accordingly, the Court dismissed the Government’s objection on this count. Late submission to the Court The Court noted that the applicants had introduced their applications some 15 years after their relatives went missing in 1974 and that it had not been possible for them to do so before 1987. Having regard to the exceptional situation brought about by the international conflict, the Court was satisfied that the applicants had acted with reasonable expedition, even though they had brought their complaints about three years after Turkey had accepted the right to individual petition. The Court therefore rejected this objection too. European Court of Human Rights Grand Chamber Judgment Article 2 The Court noted that the Turkish Government had not put forward any concrete information to show that any of the missing men had been found dead or had been killed in the conflict zone under their control. Nor had there been any other convincing explanation as to what might have happened to them that could counter the applicants’ claims that the men had disappeared in areas under the Turkish Government’s exclusive control. In light of the findings in the fourth inter-State case, which had not been refuted, these disappearances had occurred in life-threatening circumstances where the conduct of military operations had been accompanied by widespread arrests and killings. The Court fully acknowledged the importance of the CMP’s ongoing exhumations and identifications of remains and gave full credit to the work being done in providing information and returning remains to relatives. It noted, however, that while its work was an important first step in the investigative process, it was not sufficient to meet the Government’s obligation under Article 2 to carry out effective investigations. In particular, the CMP was not determining the facts surrounding the deaths of the missing persons who had been identified, nor was it collecting or assessing evidence with a view to holding any perpetrators of unlawful violence to account in a criminal prosecution. No other body or authority had taken on that role either. The Court did not doubt that many years after the events there would be considerable difficulty in assembling eye-witness evidence or in identifying and mounting a case against any alleged perpetrators. However, recalling its established caselaw on the clear obligation of States to investigate effectively, the Court found that the Turkish Government had to make the necessary efforts in that direction. The Court concluded therefore that there had been a continuing violation of Article 2 on account of Turkey’s failure to effectively investigate the fate of the nine men who disappeared in 1974. Article 3 The Court recalled its finding in the fourth interState case that in the context of the disappearances in 1974, where the military operation had resulted in considerable loss of life and large-scale detentions, the relatives of the missing men had suffered the agony of not knowing whether their family members had been killed or taken into detention. Furthermore, due to the continuing division of Cyprus, the relatives had been faced with very serious obstacles in their search for information. The Turkish authorities’ silence in the face of those real concerns could only be categorised as inhuman treatment. The Court found no reason to differ from the above finding. The length of time over which the ordeal of the relatives had been dragged out and the attitude of official indifference in the face of their acute anxiety to know the fate of their close family members had resulted in a breach of Article 3 in respect of the applicants. Article 5 The Court found that there was an arguable case that two of the missing men, Eleftherios Thoma and Savvas Hadjipanteli, both of whom had been included on ICRC lists as detainees, had been seen last in circumstances falling within the control of the Turkish or Turkish Cypriot forces. However, the Turkish authorities had not acknowledged their detention, nor had they provided any documentary evidence giving official trace of their movements. While there had been no evidence that any of the missing persons had been in detention in the period under the Court’s consideration, the Turkish Government had to show that they had carried out an effective investigation into the arguable claim that the two missing men had been taken into custody and not seen subsequently. The Court’s findings above in relation to Article 2 left no doubt that the authorities had also failed to conduct the necessary investigation in that regard. There had therefore been a continuing violation of Article 5 in respect of Eleftherios Thoma and Savvas Hadjipanteli. Given that there had been no sufficient evidence showing that the other seven men had been last seen under Turkish control, there had been no violation of Article 5 in respect of them. Other Articles Having had regard to the facts of the case, the submissions of the parties and its findings under Articles 2, 3 and 5 of the Convention, the Court concluded that it had examined the main legal questions raised in the present application and that it was not necessary to give a separate ruling on the applicants’ remaining complaints. Judges Kalaydjieva, Power, Spielmann, Villiger and Ziemele expressed concurring opinions, and Judge Erönen expressed a dissenting opinion. All opinions are annexed to the judgment. 113 Varnava and Others V. Turkey *** The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int). Press contacts Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. 114