On 12 September 2016, the European Implementation Network (EIN) and the Open Society Justice Initiative (OSJI) convened its quarterly civil society briefing on cases scheduled for review at the 1265 CM-DH meeting. On that occasion, EIN and OSJI briefed members of the Committee of Ministers on Sejdić and Finci v Bosnia and Herzegovina; CIA rendition cases (Al Nashiri v Poland and El Masri v. The Former Yugoslav Republic of Macedonia, as well as Ilgar Mammadov v. Azerbaijan, and Namat Aliyev group v. Azerbaijan.
The case concerns constitutionally entrenched racial discrimination in relation to the right to vote and the right to stand for elections. In 2009, the Grand Chamber of the European Court of Human Rights (ECtHR) found Bosnia and Herzegovina to be in breach of Protocol 12, which provides for the right to equal treatment and non-discrimination, in failing to allow its citizens who are not ‘Constituent Peoples’ to stand for election to the Presidency. The ECtHR also found a violation of Article 14 of the ECHR, which provides for freedom from discrimination, taken in conjunction with Article 3 of Protocol 1, which protects free elections to the legislature, as a result of the inability of ‘Others’ to stand for election to the House of Peoples.
The current state of execution and suggested actions to be taken by Bosnia and Herzegovina was presented by Mr Jakob Finci, former Ambassador and applicant.
These cases concern parliamentary elections that occurred in Azerbaijan in November 2005; applicants were members of the opposition parties or independent candidates. The ECtHR found violations of Article 3, Protocol No. 1 due to actions by the electoral commissions and domestic courts deemed arbitrary and without motivation, including rejecting complaints alleging breaches of electoral law and cancelling candidate registration. The Constitutional Court of the Republic of Azerbaijan annulled the elections in the electoral constituencies of certain applicants without sufficient reason, and without affording procedural safeguards to the parties (including the inability to participate in a review hearing).
The case concerns the arrest and detention of the applicant, an opposition politician, in violation of Articles 5, 6 and 18 of the Convention. The ECtHR concluded inter alia that the applicant was arrested for reasons other than those permitted by Article 5, namely to silence or punish the applicant for having criticized the Azerbaijani government.
Both cases were presented by human rights defender and chair of the Human Rights Club, Rasul Jafarov, whose arrest and pre-trial detention the ECtHR has also found politically motivated in his case Rasul Jafarov v Azerbaijan (App. 69981/14).
In this case, the ECtHR concluded that Poland violated Articles 2, 3, 5, 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 6 by participating in the extraordinary rendition and secret detention of Mr. Al Nashiri in a secret CIA prison on Polish soil, and by failing to effectively investigate this participation. The ECtHR found it established beyond reasonable doubt that the applicant was secretly detained in a secret CIA prison on Polish territory from 5 December 2002 until 6 June 2003. In addition, it found that by refusing to comply with its evidentiary requests, Poland failed to discharge its obligations under Article 38 of the Convention. Since 2006, the applicant has been held at Guantanamo Bay, facing the prospect of an unfair trial by a military commission and continuing risk of the death penalty.
In El-Masri v. The Former Yugoslav Republic of Macedonia, the Grand Chamber of the European Court found Macedonia in violation of the Convention for the extraordinary rendition of Khaled El-Masri, and the subsequent failure to conduct an effective investigation into his torture and ill-treatment.
The CIA rendition cases were presented by Rupert Skilbeck, Litigation Director at Open Society Justice Initiative.
Summary of the main points and recommendations on the above mentioned cases presented at the briefing can be found here.